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11:34 AM Sun 8 Feb 2009 GMT
 | | 'Chief Judge David Saxe asks SNG how CNEV can be a club if they don't have yachts during the Appellate Court Hearing on 05 June 2008'
Unknown Photographer
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In three days time the Appeal Court of the State of New York will convene to consider the case of Golden Gate YC vs Societe Nautique de Geneve.
It's about who should be the Challenger of Record for the 33rd America's Cup.
The arguments haven't moved since the first hearing in the New York Supreme Court in front of Justice Herman Cahn.
Management guru, Stephen Covey, had a line that two parties should not be able to enter into a negotiation until they could enunciate the other parties case as well as they could their own.
Both parties in the America's Cup Appeal should be able to pass this test with flying colours. The evidence is static. The points are simple, and hinge almost around one word, maybe two.
The first is whether or not the word 'having' in terms of 'having an annual regatta' means that you have already held an annual regatta, or whether you were going to do so at some time in the future, and before the date for the commencement of the next America's Cup regatta.
The other word is 'organized' and whether this means you need to be operating as a yacht club, running racing and that sort of thing. Or, whether you can just be incorporated as a yacht club, and are going to hold racing in some form or another at sometime in the future. In the case of the current Challenger of Record, the five foundation members of the club would have us believe that they thought it was a good idea to put in a Challenge for the most prestigious trophy in sailing before they'd started racing Optimist and keelboat fleets.
America's Cup litigation is not new, neither is controversy. The America's Cup was last on the Hearing Schedule for the New York Supreme Court in 1989 when Mercury Bay Yacht Club, a club who ran regattas off Mercury Bay beach in New Zealand. They used an old Ford Zephyr car, owned by the then Commodore, Toby Morcom, as a clubhouse in an effort to circumvent local planning laws, which would never have permitted the construction of a yacht club in such a pristine location.
Those were the days when then, New Zealand Challenge had as its patron and financier, Sir Michael Fay, who was the proud owner of Mercury Island, which he and his business partner, David Richwhite had picked up for a song. Mercury Bay Yacht Club was his local club, and had been affiliated to the then New Zealand Yachting Federation for years.
The argument Mercury Bay was pursuing against San Diego Yacht Club was the question of whether a Match, as the races for the America's Cup are termed, had to be 'fair', or whether the defending club could just turn up in any old boat, provided it complied with the length and other physical restrictions contained in the Deed of Gift.
Fay was not happy that Dennis Conner had chose to defend in a 65ft wing masted catamaran in response to his challenge in a magnificent 90ft waterline, 130ft sloop - the largest monohull permitted under the Deed of Gift published by the last remaining owner of the schooner America, George Schulyer, in 1887.
Fay sought to have the term 'fair' implied in the usage word 'match' and that a match between a monohull and a catamaran was not 'fair'.
Judge Carmen Ciparick, who will be a member of the five strong Appeal Court on Wednesday agreed with arguments submitted by Fay's attorney, George Tomkins and ruled that the Deed of Gift did imply that a Match had to be 'fair'.
Ciparick's decision was overturned on Appeal, and the Appeal Court held that the literal meaning of the words used in the Deed did apply, nothing more and nothing less.
That case which is known as Mercury Bay, was the foundation on which the current hearings, decisions and both judgements, by Cahn were based.
At the Appeal to Cahn's decision heard by the Appellate Division of the New York Supreme Court, it seemed that the two senior members of the Court, and Chief Judge David Saxe in particular, agreed with Cahn - given the tenor of their questioning of those appearing for the Swiss yacht club SNG, holders and trustee of the America's Cup.
To the surprise of most followers of matters America's Cup, the Appellate Court ruled in its 3-2 decision in favour of the Swiss. That decision gave rise to the current Appeal by Golden Gate YC, who is asking for a literal interpretation of the words 'having' and organized' to be consistent with Mercury Bay in 1989.
In short, that means that the current Challenger of Record, Club Nautico Espanol de Vela, who was accepted by Societe Nautique de Geneve, must have already sailed at least one annual regatta prior to it challenging fro the America's Cup, and that it must be properly organized as a yacht club, meaning that it must have a substantial membership, who own and race yachts with the club.
At the time of lodging its Challenge CNEV had neither sailed a race as a club, nor had any more than the five foundation members. Others claimed they had tried to join CNEV, but were unable to do so.
The view of SNG is that a club does not have to have already held an annual regatta to fit the meaning of the word 'having' but merely needs to have the intention of doing so at the time it was formed, and in fact must do so before the next America's Cup is held.
The only new material in front of the Appeal Court are a series of letters written by various parties under the mantle of 'amici curiae' or Friends of the Court. Their purpose is to guide the Court in its deliberations..
Some of these letters were accepted by the Court, others were not.
Essentially they come from two groups.
The first are from those who are concerned about the effect that the current litigation has had on the modern America's Cup, and wish to see an end to the legal process. They would like to see CNEV confirmed as Challenger of Record for all manner of practical reasons, and for Societe Nauuique de Geneve be given the authority to proceed with the organisation of the next Match, a multi challenger affair in 2010 or 2011.
One of these clubs is the Royal Thames YC who participated in four America's Cup regatta's - the first in 1870, 1964 with Sovereign. In 1974 they ran the Challenger Selection series and in 1987 they were represented in Fremantle by White Crusader. Another, Royal Cape YC has just one Challenge to its credit with Team Shosholoza in 2007.
The second group are from two previous holders of the America's Cup, New York Yacht Club and the San Diego Yacht Cub. They have something like 27 America's Cup Defences between them, plus two Challenges. They side with Golden Gate Yacht Club and wish to have the Deed of Gift and traditions of the America's Cup upheld.
Two more submissions have been lodged with the Court. The first is from Bill Koch, winner of the America's Cup in 1992 with America3. Koch also sides with Golden Gate YC, setting out a number of practical sailing reasons for Schulyer and friends to have couched the Deed in the terms they did,
China Team have made a fourth submission wanting they whole America's Cup process to be put on hold until the legal situation is resolved.
In many ways the situation is like that which exists in many yacht clubs who are undergoing change. Often there is one group of members vitally associated with racing, and wanting substantial change in the club to accommodate their new directions and progress.
The other group is of the older members, who might not be so active on the water, but nevertheless maintain an active interest in the club of which they were a part of for a long time. They want to see its traditions upheld, and change accommodated within these traditions.
The New York State Appeal Court will not be interested in the future of the America's Cup, just its immediate past, and in particular the events that have transpired since July 2007.
For that reason the comments of the first group, earnest as they may be, will probably be set aside as not relevant. The parties have the ability to address the issues on the future of the America's Cup via the door of Mutual Consent, which is an integral part of the Deed, and allows enormous flexibility in organisation of the event.
The letters from the second group will be of interest, as they focus on the narrow aspects of tradition which may be relevant to the Court are explained. The letter from Bill Koch will probably be of the most interest as Koch comes at the legal question before the Court in a practical way, explains the legal logic in sailing terms, and arrives at the same conclusion as the two previous Defenders, New York YC and San Diego YC.
The China Team submission is, like the first group's submissions, interesting, but off the narrow topic.
The other two Defenders of the America's Cup have remained silent.
Royal New Zealand Yacht Squadron, are the only one of the four previous Trustees with an active entry in the 33rd America's Cup and they are bound by Protocols and agreements with SNG in that regard.
Royal Perth YC has not been an active participant in the America's Cup since their loss in 1987.
The America's Cup family awaits the Hearing in Albany on Wednesday and the decision on this Final Appeal, more with a sense of relief than interest.
One group who will be certainly supporting Alinghi's line of argument, will be some 15 year olds of your scribe's acquaintance.
They will be havingtheir 18th birthday in three years time.
If the arguments advanced by SNG are sustained, then the would be Paris Hiltons will now be able to legally frequent the many public bars, night clubs and other such watering holes, on the basis of an event, their 18th birthday, which they are having in three years time.
We think they will be disappointed.
by Richard Gladwell
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Low Rocky Point, TAS
