ac dope

BRING ON THE DoGFIGHT!

In a unanimous decision that we predicted almost two years ago, the New York Court of Appeals today threw out CNEV's bogus challenge and pronounced Golden Gate Yacht Club Challenger of Record for the 33rd America's Cup. The judges decided 6-0 that the Deed of Gift's 'annual regatta' requirement obviously foreclosed Ernesto Bertarelli's farce, and called SNG's argument that 'having' a regatta meant that it could be in the future 'an illogical conclusion' and went so far as to award legal costs to BMW/Oracle.

The judges wrote that "it falls now to SNG and GGYC to work together to maintain this noble sailing tradition as 'a perpetual Challenge Cup for friendly competition between foreign countries' - but given Bertarelli's dishonesty, sheer arrogance and complete unwillingness to negotiate with his nemeses Ellison, Coutts, and Ehman, we doubt there will be anything friendly about the 33rd Cup, and we expect (and hope) to see the fastest-ever match race in history in ten months' time. This thing is still likely to see more time in the courtroom as the chess game over measurement, construction nationality and racing rules begins in earnest, but given the absolute dismissal by the court of every single one of SNG's arguments, we don't foresee any further delays being possible.

We say bring on the monsters.

And Ernesto - you can consider this story our formal notice of Anarchy Challenge's withdrawal from your idiotic Alinghi Cup. You'd better get to work, douchebag.

Jump in the discussion.

I wonder what SA is going to do with the money they raised for their challenge?

I bet that it will be at least 18 months (if not 24) before we see anything resembling a race and we'll continue to see litigation after litigation between now and then. The next courtroom battle will be over the date and location of the event. Next, a battle over the design parameters of the boat (why Oracle's ama's are actually more than 90')...and I bet we see Oracle pull a surprise second monster out of the shed for the race since everyone is distracted with the first one. Additionally, it gives them good reason to not give Alinghi any of the boat certification since the certification can only be had once the boat is built...the one they're sailing may not be that boat (the never made that claim).

I bielieve that once the challenge is accepterd or in this case forced on them there is a 10 month window to hold the challenge. Also I bielieve there is a northern Hemisphere time rule that states May - October so the latest I see will be May next yeat unless they force a up front race this summer, or a southern Hemisphere race this winter.

If you're bored, here's the actual decision...

http://www.nycourts.gov/ctapps/decisions/2009/apr09/25opn09.pdf

Mike

Thanks. I was looking for that to post as well.

I read that "settle this on the water" part as "SNG better not try to weasel out of this in court or we'll remove them as trustee".

I think that you will next see the certification issue come up. After that I do not think that there is another issue to keep the cup from happening. Question is simple, will Ernesto compromise and rewrite the protocol or will it be a DoG match?

I'm not sure how anything could be rewritten at this point.

The "protocol" is completely invalid, as in, it doesn't apply (one could say, exist).

The original challenge document from GGYC had language in it to allow SNG to work with GGYC on an alternate arrangement (to the DoG match), but included a very short time period, which has long since past.

Of course, I'm not a lawyer and nothing would surprise me anymore, but I certainly don't see how it could help anyone to drag this out any further. Bring on the cats for the DoG!!!

Mike

I haven't formed an opinion yet on whether or not SNG will come to the table to build another multiple challenger event or if we're going to end up in a DoG match. It depends on how much hot air Ernesto was spewing for the sake of publicity and how hard the economic downturn has affected both team's pockets. Also recall that the last, and relatively successful event, was with SNG as the defender and with GGYC as the Challenger of Record (COR). They did negotiate the last protocol which mostly worked. However, if we do end up in a DoG match, several sticking points are going to come up:

1) the date of the event is to be presented by the challenger but no sooner than 10 months from the date of the challenge (I paraphrase loosely). SNG (Alinghi) will almost certainly seek cause for delay through legal means. It's arguable that the 10month period started from the point SNG received GGYC's original challenge a looong time ago and that the time period has passed. We ~could~ race tomorrow (if GGYC's boat wasn't in the shed undergoing some sort of modifications) .... naturally, that's unlikely but it gives GGYC the potential to plop down any date leading us back to court. The deed says the clock starts when the challenge is received...not after it's been through a lengthy appeals processes and finally determined that it was indeed the official one. However, if it did go to court, I suspect the courts would elect for the 10 month clock to start today - the day they finally ruled that GGYC is the official challenger of record.

2) the place; it's up to SNG to determine the location of the event but other than saying something like "as soon as possible", the deed doesn't specify exactly WHEN this information should be given to the Challenger of Record (COR). SNG could potentinally wait until the day before the match as long as they can justify that was "as soon as possible". Boat designs are going to need to be different if you're racing off the coast of Valencia or off the tip of Cape Horn. Withholding this information to such an extreme delay would not be within the intent of the deed - but the lawyers and courts would spend a lot of time figuring that out and it could again end up in an appeals process that would delay the match.

3) With regards to the official challenging boat certification document from GGYC to SNG...SNG has been screaming about this for a long time since we all see Oracle sailing a big multihull that fits their challenge requirement. But again, like the date issue, the deed is relatively non-specific regarding the timing the certification information should be submitted to the defender. In fact, for all we know, the boat we saw sailing on the west coast might not be the boat GGYC intends challenge with. GGYC never made any such claim...they just rolled out a huge boat from a shed that was built with secrecy and happened to closely match the challenge parameters...we all assumed that it is the official challenge boat. There is also a debatable design parameter on this boat because the amas are longer than the 90' specified...but are they longer than 90' at the water line?...that kind of stuff will get ugly. However, it is entirely possible that GGYC is building a second boat based on what they learned or that this boat is going to be extensively modified. Either possibility would invalidate any certificate so there's no point in giving one up to the other side for a boat that isn't the challenge boat.

The deed is unclear about the timing off all of this information transfer and it will be cause for a lot of tussling if they choose to go the DoG route.

Taken from the deed itself.

The Challenging Club shall give ten months' notice, in writing, naming the days for the proposed races; but no race shall be sailed in the days intervening between November 1st and May 1st if the races are to conducted in the Northern Hemisphere; and no race shall be sailed in the days intervening between May 1st and November 1st if the races are to be conducted in the Southern Hemisphere. Accompanying the ten months' notice of challenge there must be sent the name of the owner and a certificate of the name, rig and following dimensions of the challenging vessel, namely, length on load water-line; beam at load water-line and extreme beam; and draught of water; which dimensions shall not be exceeded; and a custom-house registry of the vessel must also be sent as soon as possible. Center-board or sliding keel vessels shall always be allowed to compete in any race for this Cup, and no restriction nor limitation whatever shall be placed upon the use of such center-board or sliding keel, nor shall the center-board or sliding keel be considered a part of the vessel for any purposes of measurement.

DEED OF GIFT FOR THE AMERICA'S CUP


This Deed of Gift, made the twenty-fourth day of October, one thousand eight hundred and eighty-seven, between George L. Schuyler as the sole surviving owner of the Cup won by the yacht AMERICA at Cowes, England, on the twenty-second day of August, one thousand eight hundred and fifty-one, of the first part, and the New York Yacht Club, of the second part, as amended by an order of the Supreme Court of the State of New York dated December 17, 1956 and April 5, 1985.

WITNESSETH

That the said party of the first part, for and in consideration of the premises and of the performance of the conditions and agreements hereinafter set forth by the party of the second part, has granted, bargained, sold, assigned, transferred and set over, and by these present does grant, bargain, sell, assign, transfer, and set over, unto said party of the second part, its successors and assigns, the Cup won by the schooner yacht AMERICA, at Cowes, England, upon the twenty-second day of August, 1851. To have and to hold the same to the said party of the second part, its successors and assigns, IN TRUST, NEVERTHELESS, for the following uses and purposes:

This Cup is donated upon the conditions that it shall be preserved as a perpetual Challenge Cup for friendly competition between foreign countries.

Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta on ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match for this Cup, with a yacht or vessel propelled by sails only and constructed in the country to which the Challenging Club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup.

The competing yachts or vessels, if of one mast, shall be not less than forty-four feet nor more than ninety feet on the load water-line; if of more than one mast they shall be not less than eighty feet nor more than one hundred and fifteen feet on the load water-line.

The Challenging Club shall give ten months' notice, in writing, naming the days for the proposed races; but no race shall be sailed in the days intervening between November 1st and May 1st if the races are to conducted in the Northern Hemisphere; and no race shall be sailed in the days intervening between May 1st and November 1st if the races are to be conducted in the Southern Hemisphere. Accompanying the ten months' notice of challenge there must be sent the name of the owner and a certificate of the name, rig and following dimensions of the challenging vessel, namely, length on load water-line; beam at load water-line and extreme beam; and draught of water; which dimensions shall not be exceeded; and a custom-house registry of the vessel must also be sent as soon as possible. Center-board or sliding keel vessels shall always be allowed to compete in any race for this Cup, and no restriction nor limitation whatever shall be placed upon the use of such center-board or sliding keel, nor shall the center-board or sliding keel be considered a part of the vessel for any purposes of measurement.

The Club challenging for the Cup and the Club holding the same may, by mutual consent, make any arrangement satisfactory to both as to the dates, courses, number of trials, rules and sailing regulations, and any and all other conditions of the match, in which case also the ten months' notice may be waived.

In case the parties cannot mutually agree upon the terms of a match, then three races shall be sailed, and the winner of two of such races shall be entitled to the Cup. All such races shall be on ocean courses, free from headlands, as follows: The first race, twenty nautical miles to windward and return; the second race an equilateral triangular race of thirty-nine nautical miles, the first side of which shall be a beat to windward; the third race (if necessary) twenty nautical miles to windward and return; and one week day shall intervene between the conclusion of one race and the starting of the next race. These ocean courses shall be practicable in all parts for vessels of twenty-two feet draught of water, and shall be selected by the Club holding the Cup; and these races shall be sailed subject to its rules and sailing regulations so far as the same do not conflict with the provisions of this deed of gift, but without any times allowances whatever. The challenged Club shall not be required to name its representative vessel until at a time agreed upon for the start, but the vessel when named must compete in all the races, and each of such races must be completed within seven hours.

Should the Club holding the Cup be for any cause dissolved, the Cup shall be transferred to some Club of the same nationality, eligible the challenge under this deed of gift, in trust and subject to its provisions. In the event of the failure of such transfer within three months after such dissolution, such Cup shall revert to the preceding Club holding the same, and under the terms of this deed of gift. It is distinctly understood that the Cup is to be the property of the Club subject to the provisions of this deed, and not the property of the owner or owners of any vessel winning a match.

No vessel which has been defeated in a match for this Cup can be again selected by any Club as its representative until after a contest for it by some other vessel has intervened, or until after the expiration of two years from the time of such defeat. And when a challenge from a Club fulfilling all the conditions required by this instrument has been received, no other challenge can be considered until the pending event has been decided.

AND, the said party of the second part hereby accepts the said Cup subject to the said trust, terms, and conditions, and hereby covenants and agrees to and with said party of the first part that it will faithfully and fully see that the foregoing conditions are fully observed and complied with by any contestant for the said Cup during the holding thereof by it; and that it will assign, transfer, and deliver the said Cup to the foreign Yacht Club whose representative yacht shall have won the same in accordance with the foregoing terms and conditions, provided the said foreign Club shall, by instrument in writing lawfully executed, enter with said part of the second part into the like covenants as are herein entered into by it, such instrument to contain a like provision for the successive assignees to enter into the same covenants with their respective assignors, and to be executed in duplicate, one to be retained by each Club, and a copy thereof to be forwarded to the said party of the second part.

IN WITNESS WHEREOF, the party of the first part has hereunto set his hand and seal, and the said party of the second part has caused its corporate seal to be affixed to these presents and the same to be signed by its Commodore and attested by its Secretary, the day and year first above written.

GEORGE L. SCHUYLER, (L.S.) In the presence of THE NEW YORK YACHT CLUB H. D. Hamilton. by Elbridge T. Gerry, Commodore (Seal of the New York Yacht Club) John H. Bird, Secretary