This morning after the Appellate Court Hearing in New York, Sail-World spoke to Tom Ehman Head of External Affairs for BMW Oracle Racing, as the legal wranglings over the 33rd America's Cup seem close to a conclusion
Overall BMWW Oracle Racing were happy with the way their arguments were received by the four men and one woman New York Appellate Court Bench.
The case started soon after 2.00pm in New York, after the expedited Appeal lodged by Societe Nautique de Geneve was elevated to second on the docket, having been previously at #12 for the afternoon session.
It followed a short hearing from a prisoner who was complaining about how his good behaviour points had been treated, or rather not treated, by the authorities responsible for his incarceration.
Then the Court's attention shifted to the more mundane matters of two billionaires arguing over a yacht race.
After negotiating the times required by the Counsel to make their oral submission and rebuttals, it was over to Barry Ostrager from Societe Nautique de Geneve to open their case. After reading from their submission for about 15 seconds, Ostrager was interrupted from the Chairman of the Panel, with the question 'What's your primary beef? What's your concern with what Justice Cahn ruled?'
Ostrager then had to verbalise the Defender's arguments, which have been well stated previously, and he covered a lot of old ground. Alinghi's lead counsel was subject to frequent interjections and questions from the Bench. In typical US judicial style he was often not allowed to complete an answer before being interrupted on another unrelated point. Clearly a forum for the staccato response than the longwinded explanation
The questioning style seems to be more of the Judges putting a dipstick into the tanks of various arguments - and then considering the quick read of the tank-level, rather than trying to work out the reasons why.
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Alinghi's Barry Ostrager makes a point at the New York Supreme Court Hearing on 02 April 2008 - Unknown Photographer |
James Kearney for Golden Gate Yacht Club, received rather an easier time than did Ostrager. It is not exactly clear why this was - whether it was because the Challenger's arguments are more coherent; or because the Court understood and was more sympathetic to the decision from Justice Cahn; or because this is an Appeal and therefore Societe Nautique de Geneve has to show good reason or cause as to why the original Decision should be overturned.
(Unlike the English system, the Appellate Court is not a lower Court, but just another division of the New York Supreme Court established specifically to hear Appeals.)
'The Court asked much tougher questions of Ostrager,' said Ehman. 'But you never know, they could reverse Cahn on any or all of his points. We were pretty pleased and upbeat. And we are expecting that they will affirm or uphold Cahn, in most if not all respects, based on what we saw and heard.'
Surprisingly there was very little discussion on what was believed to be the main point of contention - the date of the 33rd America's Cup. SNG has plumped for a May 2009 date or later. Golden Gate would rather see October 2008, and Justice Cahn had ruled on early March 2009.
'Barry Ostrager got onto the subject of the date, but he got interrupted and never got back to it', said Ehman.
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James Kearney for GGYC makes a point at the New York Supreme Court Hearing 02 April 2008 - Unknown Photographer |
'They asked Jim (James Kearney) a date question 'your main concern seems to be about the date' and Jim started to say why it should be 10 months from November instead of 10 months from May. But he got interrupted by another Judge and that was the end of the date discussion.
'They seemed to have very little truck about the dates', Ehman added
'Ostrager started talking about Northern and Southern hemisphere thing, and why that should push the date back to May 2009. But he got interrupted by one Judge saying 'we don't want to hear about that', and changed the subject.
'Then when they started on Jim, they said 'your main issue is with the dates, isn't it?' And when he said 'yes' and started on why it should be earlier rather than later. He didn't get any more than 10 seconds down that path, when he was interrupted by one of the Justice's who wanted to move off the date subject, again.'
Most of the questioning of the SNG case seemed to hinge around the validity of their selected Challenger of Record, Club Nautico Espanol de Vela (CNEV).
'The Chief Judge seemed to be onto CNEV, wondering how they could be a yacht club if they didn't have any yachts. Similarly on the point where CNEV didn't have an annual regatta - Ostrager countered with the view that CNEV could have an annual regatta prospectively. The Chief Judge commented that 'certainly you have to have had the annual regatta when you challenge - you can't challenge and then have the annual regatta'.'
That comment would tend to blow out one of SNG's principal arguments.
The point that Desafio Espanol was no longer representing CNEV was not lost on the Appellate Court either.
'One of the Judges was clearly hispanic,' said Ehman. 'You could tell by the way he was pronouncing the club names in Spanish, and commented that Desafio Espanol was now represented by a new yacht club, which he correctly pronounced.
'He then queried as to why CNEV were not appealing, and weren't present on the front table of lawyers. CNEV was pointed out to be back in the body of the Court with other observers.'
'It was pretty clear to the Court that SNG were representing CNEV', Ehman added.
In previous Supreme Court hearings, CNEV were present at the front table with other counsel, but didn't always speak. In this hearing they were just back in the body of the Court.
The Hearing started pretty much at 2.00pm and the Oral Submissions were over 35 minutes later. Each side got 10 minutes to present their case with an additional two minute rebuttal each. About a third of the Court emptied at the conclusion of the Hearing, such was the level of interest relative to the other cases that afternoon.
'There was no indication of their Decision, which was reserved', said Ehman. 'Almost everybody tells us that they expect a Decision before the end of this term, which is at the end of June. So we are expecting a Decision before the end of June, or shortly thereafter.'
by Richard Gladwell
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