America's Cup - Off the Record - 28 April: It's back to Court we go

2:24 AM Tue 28 Apr 2009 GMT

'The America’s Cup goes back into suspended animation, with a new Court action. This time presumed to be for Contempt of a Court Order' Carlo Borlenghi / Alinghi&copy

Much of what we have written since the Appeal Court Decision of 2 April has come from various sources, international and local, close to the America's Cup action, who won't be quoted but are reasonably happy to talk off the record, on a 'not to be attributed' basis.

Last Friday in a Gladwell's Line commentary we wrote: 'The America's Cup seems to be destined to return to Court as a result of the action of Defender, Societe Nautique de Geneve rejecting the offer of a Multi Challenger event sailed in yachts to the AC33 rule, made by the Challenger of Record, Golden Gate Yacht Club.

'At a meeting in Geneva, on Thursday, SNG/Alinghi did not accept the Multi Challenger proposal, instead they opted for a Match in 90ft or 115ft LWL multihulls, the maximum sized yacht allowed in the Deed of Gift.

'SNG/Alinghi also announced that they would Defend in May 2010, and apparent contravention of a New York Supreme Court order requiring a match to be sailed on 8 February 2010.

The three who advised GGYC of the May date for a Match: Lucien Masmejan, SNG member, America’s Cup committee secretary & Fred Meyer, SNG vice-commodore and America’s Cup committee chairman & Brad Butterwoth (SNG member, America’s Cup committeee vice-chairman). - Carlo Borlenghi - Alinghi&copy

'The response from Golden Gate YC and their team BMW Oracle Racing was to request that the statement regarding a Defence date be put in writing.

'Once that is done it seems that the matter will be referred back to the New York Supreme Court for further decision and action. The confirmation of dates by the Court could be done either by a letter to the Court, or at a full Hearing with a new Judge, as Justice Cahn has returned to private practice.'

That action has apparently happened with the email notification from the New York Supreme Court that papers had been lodged in a Contempt of Court action.

It was confirmed to Sail-World late last week that a letter had been sent from Swiss parties confirming the May date for the Defence, and the email from the Court at close of business for the first working day, that the expected papers had been filed in an action holding Societe Nautique de Geneve in contempt of a Court Order.

From here the usual process is expected to be followed, with the parties lodging a submission on the matter, followed by a short Hearing. From there it is possible that two courses of action could follow. The first is a full blown legal process - with two level of Appeal possible.

The parties meet on 23 April for the first time since the Appeal Court decision on 7 April. Another meeting was expected within a couple of weeks. - Carlo Borlenghi - Alinghi&copy

The other, is that the Court merely clarify the ruling given by Justice Cahn that the Match be held on 8 February in Valencia or at a venue to be selected by the Defender. Meaning that the Challenger and Defender could agree under the Mutual Consent provisions of the Deed of Gift that the venue would beqan Northern Hemisphere one, even though that hemisphere, as a venue, is not street legal outside the dates of May to October.

One legal source spoken to by Sail-World had it that SNG was hog-tied by the Deed of Gift, and that it was bound by agreement to uphold the Deed, and therefore could not stage a Match outside the provisions of the Deed. Yet the Cahn ruling has specifically required the Club to act in contravention of the provisions of the Deed.

Another source had it that 'the Court of Appeals made it pretty clear that they thought it was high time to get the racing back on the water, and though this motion is before a single Judge of the Supreme Court of New York, rather than the Court of Appeals, I would think that she would not be happy that SNG was prepared to ignore the plain language of the order.

'Golden Gate YC's success on the motion depends on what they filed with the motion. The mere fact hat at their initial meetings, SNG wanted to race in May rather than February might not be enough. on the other hand, if they have attached to their motion something in writing from SNG declining to race in February, or a declaration from someone at the GGYC challenge stating that SNG has orally refused to race in February, their chance of success goes way up.'

The specific content of the Contempt Motion will not be known until latter today (NZT). The actual letter has yet to be sighted.

Parties associated with SNG were a little surprised at the move expressing the view that they believed that they were still in Mutual Consent discussions with Golden Gate YC, and that while no date had been set for a second meeting, that was expected to take place in a couple of weeks.

More to come ....

by Richard Gladwell, Sail-World.Com

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