Yesterday, in the latest hearing in the America’s Cup case at New York Supreme Court, just a few minutes into the oral arguments, Justice Herman Cahn interrupted Barry Ostrager, the lead lawyer for Societé Nautique de Genéve (SNG), and asked, “Have the two sides had any conversations since our last hearing?”
Justice Herman Cahn on the New York Supreme Court Bench at the Hearing on 22 October.
Ostrager replied, “No, your honor. There are irreconcilable differences.”
That much was obvious to anybody who was there as each side accused the other of misrepresenting the rules and the facts. Whatever Ostrager said for his client (the yacht club for cup defender Alinghi) was contradicted by James Kearney, representing the Golden Gate Yacht Club of San Francisco, which has challenged for Larry Ellison’s Oracle. In November Justice Cahn threw out the Club Náutico Español de Vela as Alinghi’s choice as challenger of record and replaced it with Golden Gate. SNG is now trying to convince Cahn that he made a mistake in naming Golden Gate.
SNG’s main point was that Golden Gate misled it about the boat that will sail in the races, whenever they occur. When Golden Gate challenged last July, it observed a provision in the America’s Cup rules that require a challenger to provide the basic dimensions of its boat, which are the length and the beam. That rule is laid out in the deed of gift written by the cup’s last surviving donor, George L. Schuyler, in 1887. The dimensions provided by Golden Gate include such a wide beam that the boat very likely is a catamaran or trimaran.
Golden Gate also described its boat as a “keel yacht.” Why it did this is not clear because a description of the boat type is not required by the rules, yet Ostrager repeatedly argued that these two words disqualify Golden Gate as a challenger. He gave two reasons. First, only a yacht with one hull (a monohull) can have a keel, a fin under the hull. Second, the defender has a right to know what type of boat is challenging. SNG, he insisted, “needs to determine what type of boat to build,” and what this boat is or will be is a mystery.
While Ostrager did not cite rules to this effect, he did refer to a letter he had recently received from Jerome Pels, Secretary General of the International Sailing Federation, that he said supported his position. In fact, when the letter was released publicly after the hearing it turned out to be far less dramatic than he suggested. “Multihulls usually have no ballasted keels” is one quote. And then there is, “For the purpose of the choice of equipment (boats) for the Olympic Games, ISAF would therefore not consider a multihull to fit in the ‘keelboat’ category. Therefore a ‘multihull’ yacht would not be classified as a ‘keel’ yacht.” After the hearing Tom Ehman of Golden Gate emphasized these qualifications and concluded, with some merit, that the letter offers SNG little support.
Ostrager told the judge that if he did not disqualify Golden Gate as the challenger of record for filing an improper challenge, Justice Cahn should either hold a hearing on the technical questions, with expert witnesses, or hand over jurisdiction to the ISAF. The last point took the judge by surprise. “You’re saying that I should refer these issues to the ISAF?” he asked. “Yes,” replied Ostrager, “A keel yacht is incompatible with a multihull boat.”
Golden Gate energetically disputed SNG’s argument. “Catamarans can have keels and catamarans do have keels,” Kearney said, adding, with his voice rising in frustration, “The very notion that they would tell the court that catamarans do not have keels is a delaying tactic.” He gave the judge photographs of multihulls with keels. Kearney also defended his position with several procedural arguments, one of which was that until recently SNG had accepted Golden Gate’s description of its boat without question and now cannot reverse that judgment, at least in court.
“We have lived through a blizzard of new arguments,” Kearney said. He added that, under the precedent set by the last major America’s Cup dispute, the Mercury Bay-San Diego big boat-catamaran battle of at least my fond memory, jurisdiction over the cup lies in the hands of the New York courts. “Nobody can take from this court responsibility to interpret the deed of gift.”
Acknowledging Kearny’s procedural points, Justice Cahn agreed to hear more on the technical issues from both sides.
After the hearing, standing on the steps of the New York State Supreme Court building at 60 Centre Street, Lucien Masmejan, Alinghi’s chief counsel, said he was obliged to proceed with the case. “As the defender and the trustee of the America’s Cup, we have to be sure to accept only valid challenges. It’s our duty as the trustee of the cup. We are the trustee. We can’t say, ‘we give up.’ We have a vision and we’re not going to give up that vision.”
Ehman was somewhat less philosophical. Asked how he would answer a question about the description of the boat as a keel yacht, he said, “Nobody has asked that question.” The boat, he promised, will have a keel.
This article is adapted from a story filed with the Swiss newspaper Neue Zürcher Zeitung)