11:55 AM Thu 30 Jul 2009 GMT
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'Valencia Bases - January 2008, many expect the 33rd America's Cup to be held at another yet unannounced venue'
MCC McCamp
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As the date for the announcement of the venue for the 33rd America's Cup draws near, Golden Gate YC let fly with another Open Letter anticipating issues expected to be announced on 6 August on the venue for the 33rd America's Cup. The venue is expected to be announced in the Middle East and the parties will then be head back into the New York Supreme Court. A decision on the legality of the Alinghi 5 engine, is also expected to have a strong chance of being taken to Appeal, possibility creating further delay in the event,
For its part Societe Nautique de Geneve confirms, in a letter a week previously, the points its lawyer let slip during the New York Supreme Court Hearing on 21 July.
July 28, 2009
Mr. Fred Meyer
Vice-Commodore
Chairman, SNG America's Cup Committee
Soci?t? Nautique de Gen?ve
Port Noir
CH-1223 Cologny
Switzerland
Dear Vice Commodore Meyer:
We note that Mr. Ostrager's most recent letter to the court is published on your website.
The purpose of this letter is to put you on notice, yet again, that if you unilaterally select a Northern Hemisphere venue other than Valencia, we intend to defend our rights under the Deed and the Order and Judgment of the Court of Appeals. This position has been consistently reiterated to you through correspondence (as recently as July 8, 2009) and public statements. A copy of our July 8th letter, which sets out the substantive basis for our position, is attached to this letter for your reference.
Appropriately, Justice Kornreich's May decision did no more than enforce the Court of Appeals Order and Judgment and Deed, which when read together can only mean that consent by GGYC is required for any Northern Hemisphere venue other than Valencia, for a February race. Any other reading of the Deed and Order would result in incongruous and absurd consequences.
It is ironic that just two months ago in your May 11th court papers you agreed with our position, stating that "The Deed of Gift unambiguously prohibits sailing a match between November 1 and May 1 in the Northern Hemisphere . . . There is nothing in the Order that suggests that a race should be held in contravention of the terms of the Deed of Gift."
You may, of course, select a Southern Hemisphere venue of your choosing for a February race.
If you would like to choose an alternative Northern Hemisphere venue, we are more than willing to discuss proposed venues with you. Absent that, we look forward to your announcement on August 6th of either a Southern Hemisphere venue, or Valencia as the venue for the 33rd America's Cup to be held in February 2010.
Sincerely,
GOLDEN GATE YACHT CLUB
Marcus Young
Commodore
_________________________________________________________________________________________________
July 22, 2009
The Honorable Shirley W. Komreich
The Supreme Court of the State of New York
County of New York
60 Centre Street, Room 418
New York, NY 10007
Attention: Celia Rodriguez, Esq.
Dear Justice Kornreich:
We write on behalf of Soci?t? Nautique de Gen?ve ("SNG") in connection with issues raised at the July 21, 2009 hearing before this Court.
As agreed at the hearing, we have attached as Exhibit A to this letter for in camera review a copy of the June 5, 2009 agreement (the Agreement") between SNG and the International Sailing Federation ("ISAF") concerning the 33td America's Cup. For purposes of comparison, we have also attached as Exhibit B for in camera review a copy of the November 6, 2003 agreement between ISAF and AC Management concerning the 32' America's Cup.
SNG submits these agreements with the understanding that their contents are confidential. Accordinglj, SNG requests that if the Court determines that GGYC should receive a copy of the 33r Agreement (which SNG believes GGYC is not entitled to under the Deed or applicable case law), we have been asked by ISAF to respectftLlly request that the Court order GOYC to enter into a confidentiality agreement with SNG and ISAF preventing it from disclosing it to third parties or publishing any details of its contents.
We also through this letter address two other matters raised at the hearing.
First, SNG would like to confirm, consistent with our representation made to the Court at the hearing, that the 33 America's Cup will not impose any restrictions on competitors' boats other than the dimensions and requirements contained in the Deed of Gift and the Certificate of Vessel submitted with GGYC's Notice of Challenge. SNG will not impose, either in its Notice of Race, or in any other applicable document to be issued by SNG, any further restrictions on the design and equipment of the competing vessels. In particular, rules 49 through 54 of the ISAF Racing Rules of Sailing ("RRS") will not apply to the 33rd America's Cup.
Second, although we do not believe there is any dispute regarding measurement, SNG will issue precise measurement procedures for the 33 America's Cup, on or before August 6, 2009, and before the issuance of the Notice of Race for the next Match.
As stated at the hearing, SNG does not have and has never had any intention of using the measurement procedures to disqualify GGYC's Challenging Vessel by applying unfair or deceptive measurement procedures. SNG's sole purpose is to make sure that it will be racing against the vessel described in GGYC's Certificate of Vessel.
SNG is willing to continue the mediation process established by this Court. It is our desire that the parties proceed to compete on the water instead of though contempt proceedings in Court. SNG looks forward to announcing the Northern Hemisphere location for the February 2010 America's Cup on August 6.
Respectfully,
Enclosures
cc: James V. Kearney, Esq. (w/o enclosures)
_________________________________________________________________________________________________
The older correspondence from the Societe Nautique de Geneve
Mr. Marcus Young Commodore
The Golden Gate Yacht Club
#1 Yacht Road
San Francisco
California 94123
USA
6 July 2009
33rd America's Cup
Dear Commodore,
We write to correct your erroneous letter of June 19, 2009 and to address news reports of a recent interview with Russell Coutts.
In the June 19 letter, you curiously claimed that naming a Northern Hemisphere venue other than Valencia without your 'express agreement' would 'flaunt the Deed of Gift and/or the Court's Judgment and Orders.' This statement is baseless.
To be perfectly clear: the last court orders of Justices Kornreich and Cahn stated that SNG is entitled to select Valencia 'or any other location' for the next Cup, without qualification or limitation. 'Any other location', of course, includes any Northern or Southern Hemisphere venue. The orders also make clear that SNG has until 6 months prior to the race of the next Cup to announce a location. SNG will specify Valencia or any other venue in the Northern or Southern Hemisphere in due course.
We also take issue with a report of an interview of Russell Coutts that appears in the August, 2009 issue of Seahorse Magazine. When asked, '[D]o you feel bound by the 90ft x 90ft dimension of the challenge document?' Mr. Coutts stated, 'We won't exceed the dimensions as stipulated. The Deed is clear that you are not allowed to exceed the dimensions.'
This is, of course, a blatant misreading of the requirements of the orders and the Deed of Gift. The Deed, as Justice Kornreich reiterated at the May 14, 2009 hearing, expressly requires GGYC to challenge in, and provide a Custom House Registry for, a challenge vessel that conforms exactly to the measurements contained in the boat certificate that accompanied GGYC's notice of challenge. As Justice Kornreich said at the hearing, and as we noted in our letter of May 26: 'I am stating right now that . the Deed does require that the vessel conform to the challenge dimensions. If the [Custom House Registry] does not conform to the challenge dimensions, it is this Court's belief, and my direction, that Golden Gate will be disqualified, and I am directing Golden Gate, in good faith, to abide by the Deed, to make application for the CHR as soon as possible and providing it as soon as possible'.
That's the order of the Court. Should you challenge in a vessel that does not conform to the challenge dimensions, we will seek your GGYC's immediate disqualification. We look forward to the immediate receipt of the Custom House Registry.
Your letter and Mr. Coutts' interview make clear that your favored means to compete for the Cup is through litigation. We encourage you to stop these tactics and agree to meet us on the water in a boat that conforms exactly to those dimensions listed in the Challenge.
In the same interview Mr. Coutts said that the challenge received by SNG from Circolo Vela di Gargnano (CVG) was 'unrealistic'. As far as we know you have not responded to the latest letter of CVG dated June 12, 2009. Please advise as soon as possible if GGYC is going to give the opportunity to other challengers to compete in the 33rd America's Cup or will continue to exclude challengers from competition.
Yours sincerely.
Fred Meyer
Vice-Commodore and Chairman of America's Cup Committee
Alec Tournier
General Secretary
And the reply from Golden Gate Yacht Club
July 8, 2009
Mr Fred Meyer
Vice-Commodore
Chairman, SNG's America's Cup Committee
Soci?t? Nautique de Gen?ve
Port Noir
CH-1223 Cologny
SWITZERLAND
Dear Vice-Commodore Meyer,
We write in response to your letter of July 6, 2009
Let us again reiterate, the Deed and the Order and Judgement are clear that you may not select a Northern Hemisphere venue, other than Valencia, without our mutual consent. Justice Kornreich's May 14th order contains nothing that even suggests, let alone 'stated', otherwise. To the contrary, Justice Kornreich ordered 'SNG to hold the race as per the order of the Court of Appeals and Justice Cahn in February as the order required.'
As further proof that our reading of the Deed and the Judgement and order is correct, you agreed with it when light and truth were original to you. In your May 11, 2009, court papers you agreed that 'the Deed of Gift unambiguously prohibits sailing a match between November 1 and May 1 in the Northern Hemisphere... There is nothing in the order that suggests that a race should be held in contravention of the terms of the the Deed of Gift.'
What is more, during the May 14th hearing when your attorney attempted an about face by asserting that SNG has the right to select a Northern Hemisphere venue other than Valencia without our consent, Justice Kornreich stated that 'that's not what the Court of Appeals said'.
Your letter also again fails to respond to the inescapable conclusion that the Deed and the Order and Judgement my be read harmoniously, giving force and effect to the terms of each, requiring a February race in Valencia or any other Southern Hemisphere location selected by SNG, unless otherwise consented to by GGYC. There is therefore no basis to conclude that the phrase 'any other location' in the Order and Judgement intended to alter the Deed of Gift's Northern Hemisphere restriction; just as there is no basis to conclude that this phrase intended to alter the Deed's requirement to select a location free of headlands or a location that has an ocean water course.
You also misconstrue Justice Kornreich's order and the Deed when you assert that they require GGYC's Custom House Registry to 'conform exactly' to GGYC's challenge certificate. To the contrary, the Deed is unambiguous that the dimensions provided on a challenge certificate 'shall no be exceeded'. Justice Kornreich's order is entirely consist with the Deed and the Order and Judgement; and you are simply wrong in your repeated assertions that Justice Kornreich's order in any way contravened the terms of the Deed or the mandate of the Court of Appeals.
Sincerely,
GOLDEN GATE YACHT CLUB
Marcus Young
Commodore
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