Gladwell's Line: America's Cup one step, or two, away from Forfeit?

11:58 PM Tue 28 Apr 2009 GMT

'Fred Meyer, Societe Nautique de Geneve, Vice-Commodore and America’s Cup committee chairman.' Carlo Borlenghi / Alinghi&copy

As noted in this column late late week, the America's Cup has indeed returned to the halls of the New York Supreme Court, with the filing of a Contempt of Court papers on Monday.

The legal move from Golden Gate Yacht Club follows the announcement at the Challenger/Defender Meeting on 23 April, later confirmed in writing, by Societe Nautique de Geneve that they would defend the America's Cup in early May 2010 in apparent contravention of a New York Supreme Court Order.

While the papers raise the question of Forfeiture of the America's Cup, the reality is that SNG are a single, long step, maybe two, away from this situation.

SNG's view seems to be that there is an apparent contradiction between the requirements of the fifth and latest edition (1887) for of the Deed of Gift for the America's Cup, modified in 1985 to cope with a southern hemisphere Defence by Royal Perh Yacht Club in Fremantle.

That amendment set a time period when the Match could be sailed in the Northern Hemisphere, between the months of May and October, and in the Southern Hemisphere between November and April.

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

SNG are further bound by an agreement with the former holder/trustees of the Deed of Gift, the Royal New Zealand Yacht Squadron that it (SNG) would uphold the conditions of the Deed of Gift.

SNG's view is that the Match date of 7 February 2010, constructed from the Order handed down by Justice Herman Cahn in the New York Supreme Court, and the date of the Appeal Decision from the Court of Appeal in New York, is contradictory to the terms of the Deed of Gift.

That Order, calls for a Match to be sailed in the 'prohibited time zone' for a Northern Hemisphere venue (stipulated as Valencia, or another venue agreed by the parties).

There is a further view, going back into previous editions of the Deed of Gift, which says that it was clear (and logical) that if the Defender and Challenger were both Northern Hemisphere clubs, then the Match should be sailed in the Northern Hemisphere

So effectively, SNG viewed themselves as being on a hiding to nowhere. On one hand if they announced that they were going to sail the Match as instructed by Justice Cahn, then arguably they were in contravention of the Deed of Gift and RNZYS could have initiated proceedings against them in this regard. Whether this is convenient perception or reality, is another matter.

Justice Herman Cahn at the New York Supreme Court Hearing on 02 April 2008 - Unknown Photographer

A second option would be for SNG to have announced a Match date in May in the Northern Hemisphere - and been on the receiving end of a Contempt of Court action, from GGYC, as has happened.

Their third option would have been to announce a February Match date, for a Southern Hemisphere venue. But that too would be in contravention of Justice Cahn's Order since he specified that the venue should be Valencia, unless the parties agreed otherwise. So it could have been back to Court on that count as well.

Of course the fine legal point, in terms of the Deed of Gift, is that it is not until 7 August 2009, that SNG have to announce the Match Venue.

In the interim all they had to do was accept the Challenge of Golden Gate YC following the Appeal decision, and the implied Match date of 8 February 2010 - and then make the Match Venue announcement of Valencia on 7 August 2009, or tried for agreement with GGYC on some other venue (but not dates).

So perhaps yesterday's events were rather inevitable. While the Contempt of Court action does seem rather dramatic, it is one way of bringing resolution to the matter, and absolving Societe Nautique de Geneve of any responsibility, perceived or real, to the former trustee, in terms of upholding the conditions of the Deed of Gift.

Of course there is the view that the later Match date is just more move in the delay process adopted by SNG, which includes the deferred date, and coupled with the call for a multi challenger event in multihulls, with potential entries being given more time to conduct selection trials.

The America’s Cup will once again see the interior New York State Supreme Court - Event Media

In reality the Forfeit of the America's Cup would not arise unless SNG/Alinghi failed to show up for the Match at the venue they named, or was ordered by the Supreme Court, on the dates specified in the Notice of Challenge, or dates ordered by the Supreme Court.

There would, of course, be some further legal issues if SNG failed to announce a venue before the six month deadline before the Match - given that the Defender must conclude arrangements with the venue to stage the Match. You can't just rock up and race.

However with those transactions completed, the only requirement on the Defender is to name the yacht they are using for the Defence on the day of the Match ('until at a time agreed on for the start'), and that yacht must be at least 44ft of waterline length and must be 'constructed in the country of the Club holding the Cup' ie Switzerland. That includes masts and sails.

Despite being hauled back to Court on a charge of Contempt, under the threat of fine and imprisonment. Alinghi, as Defender, still have plenty of room to manoeuvre - but very little space on the date of the Match, which is not their call.

To some extent the May date could be seen as a try-on of Golden Gate YC - and the new Challenger of Record either accepted the date (giving the Defence a three month extension), or GGYC risked the odium of further legal action.

Clearly GGYC are of the mood that they wish to have the 33rd Match concluded as quickly as possible.

They are also obviously of the mind that the legal stench surrounding the America's Cup cannot be made any worse by further legal action, on their part, and therefore don't fear the resultant PR fallout.

The immortal words still ring out, of Australia II's Warren Jones, the late doyen of America's Cup strategists, who commented after their win in 1983: 'All summer, it has been check, check, check, check. Today, it was mate!'

So it is with Alinghi/SNG, who in each appearance, bar one, have emerged from the Courtroom as the losing party. Their one win, in the Appellate Division, was by a 3-2 majority with the two senior most judges dissenting. That is as close as you can get to a string of straight legal losses.

Since 11 July 2007, this America's Cup chess game has been 'check, check, check'. And unless SNG/Alinghi fall into line, 'Check Mate' would seem to be one or two moves away.

For the general public and media the whole America's Cup process has become tedious and boring - and maybe something from which the Cup will not fully recover in their eyes.

For the America's Cup fans, this process is part and parcel of the history and intrigue of the America's Cup, and what has kept the event, love it or hate it, on the top shelf of sailing and sport since 1851.

Perhaps optimistically, this will be the last round of the America's Cup in Court.

The event is one in which the International Sailing Federation appoint a Jury, and once appointed all matters relating to the conduct of the event, barring Supreme Court Orders, are referred to that body for adjudication, with no Appeal.

It is not known when this appointment will be made, however for most it cannot come soon enough.

by Richard Gladwell, Sail-World.Com

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