There is still no Mutual Consent in the 33rd America’s Cup
In a Hearing in the New York Supreme Court today, Justice Shirley Kornreich ruled that any venue arbitrarily selected by the Defender of the America's Cup for the 33rd match had to be Deed compliant.
The decision from the Bench surprised many, and means that the only valid venue for the 33rd Match is Valencia, Spain; or a Southern Hemisphere venue; or a venue determined by mutual consent between the Challenger, Golden Gate Yacht Club and the Swiss Defender, Societe Nautique de Geneve.
While the move would appear to remove the chosen venue of Ras al-Kaimah as a location, that would only apply if the Match were still to be sailed on 8 February 2010, and there was no mutual consent between the Challenger and Defender.
While agreement between the latter seems unlikely at this stage, the ongoing legal proceedings may well create further delay, slipping the match beyond May 2010, meaning that SNG could well select the Northern Hemisphere venue.
Alternatively SNG could arbitrarily select a Southern Hemisphere venue for a Match in February 2010, without any consent required from the Challenger.
On the issue of the Rules, many of the issues raised by Golden Gate were not immediately ruled upon by the Court . However staying consistent with the 'Four Corners of the Deed' doctrine, Justice Shirley Kornreich ruled that the measurements, as stated in the Deed of Gift should not be exceeded, and by implication could be less than stated on the Notice of Challenge filed by Golden Gate Yacht Club in July 2007.
She undertook to try and rule on the outstanding matters of rudders being included in the Load Water Line measurement, and whether ballast tanks had to be full or empty at measurement time, later in the week.
Justice Kornreich also asked that the International Jury be empaneled as soon as possible, and that the Intrenational Jury have all the normal powers of a Jury, meaning that it was to be independent as it is for any other international regatta, without oversight or direction by regatta organisers
A statement issued by www.Alinghi.com for Societe Nautique de Geneve reads:
New York Supreme Court orders 33rd America’s Cup to be Deed compliant
The New York Supreme Court today ruled that the 33rd America’s Cup, scheduled in February 2010, must take place in a venue in the Southern Hemisphere as per the strict reading of the competition’s governing document, the Deed of Gift, or in Valencia, Spain, as the only exception to that rule.
'This is a disappointing result as we were certain that Justice Cahn's May 2008 decision allowed the Defender to chose Valencia or ‘any other location’,' said Lucien Masmejan, Société Nautique de Genève (SNG) legal counsel. 'Ras Al Khaimah has put enormous time and effort into this 33rd America’s Cup project. We thank them and feel sorry for this unexpected result out of the New York court'.
'We are satisfied, however, as Justice Kornreich confirmed that the Deed of Gift Match will be conducted under SNG rules as she had already ruled in a previous court order,' added Lucien Masmejan.
By way of explanation, SNG noted that the 1887 Deed stipulates that racing for the America’s Cup between 1 November and 1 May must take place in the Southern Hemisphere, Justice Cahn’s 12 May 2008 New York Supreme Court Order ‘that the location of the match be in Valencia or any other location selected by the SNG’ led the America’s Cup defending yacht club, Société Nautique de Genève, to select Ras Al Khaimah in the United Arab Emirates.
In a later statement, Golden Gate Yacht Club commented:
New York, NY, October 27, 2009 – 'We’re pleased with the court’s decision today that Alinghi’s choice of the venue for the 33rd America’s Cup was not allowed under the Deed of Gift.
'We look forward to Justice Kornreich’s decision later this week regarding two additional issues.
'First, we hope she will agree with our position that Alinghi cannot add additional ballast, equipment or sailors to the boat after it has been measured for compliance with the Deed of Gift’s restriction on length along the load water line. Enabling any team to add additional weight after measurement – thus lengthening its load water line and increasing its speed – violates the Deed of Gift, decades of sailing practice, and the spirit of the rules that govern the America’s Cup.
'Second, Justice Kornreich understands the need for a fair and impartial jury.
'Our position is that the sailing jury must have the normal powers to adjudicate. We remain motivated to negotiate all remaining issues with Alinghi to ensure a fair, competitive and successful America’s Cup in February 2010. We took a
big step towards this goal today.'