With the America's Cup venue now being bid to ports other than that of the Defending club, some wonder whether this practice is within the spirit, if not the letter, of the Deed of Gift which governs the 162 year old trophy.
The issue was raised in 1988 when the San Diego YC was looking at Defence options against the Mercury Bay Boating Club's 'Big Boat' Challenge, when there was concerns amongst the SDYC team that the Defender's catamaran might not have been superior in light winds.
For a time, they considered moving the Match to Long Beach where the breeze was believed to be more favourable.
The late James Michael, a noted attorney with over 40 years of experience was a member of the New York Yacht Club for over 26 years, served on its Board of Trustees during 1964-77 and on its America's Cup Committee during 1971-83.
Michael, who passed away ten years later in 1998, was ironically, based in San Francisco. He was a noted authority on the Deed of Gift and because of this legal background, he was usually the point man for the New York YC's America's Cup Committee in disputes or questions that arose regarding the Deed of Gift, the Conditions of the Match and the interpretation and application of the l2-Metre Measurement Rule.
In 1988, James Michael produced an opinion on whether the Defender, in this case San Diego YC, had the right to sail the America's Cup in other than its own waters. Interpreting the Deed of Gift By James Micheal
On the question of venue, nothing in the Deed expressly or impliedly authorizes the defender to change the venue from its home waters, unless, and only if, it is done with the mutual consent of the challenger. Nevertheless, several arguments have been advanced to support San Diego's position, which we examine next.
Reference is made to the fact the present Deed provides that, in the absence of mutual consent, the races shall be sailed 'on ocean courses, free from headlands,' whereas the prior deeds required the 'usual course for the annual regatta of the yacht club holding the cup.' It is argued that the deletion of the words last quoted evidences an intent to authorize the defending club to move the venue out of its home waters. That argument is unavailing for several reasons.
The Current Deed still retains the provision, first added in the 1882 Deed, that to qualify as a challenger, a yacht club must have 'for its annual regatta an ocean water course on the sea, or on an arm of the sea'.
The purpose of this requirement, patently, is to make certain that, when a challenger wins the Cup, and then becomes the defender in the next match, its home waters will provide the 'ocean courses' which must be used when mutual consent is lacking.
As previously noted, the donors incorporated the reference to the 'usual course for the annual regatta' of the defending club as a protection to the challenger, when the parties could not agree. The deletion of those words in the 1887 Deed was not intended to destroy that protection to the challenger, nor to give power to the defender to name whatever venue would give it the greatest advantage and put the challenger to the greatest disadvantage (as San Diego publicly espouses doing).
America replica sailing in San Diego - image by Lenny Gemar - .. .
Such an interpretation would be in direct conflict with the donor's purposes to assure a fair and sportsmanlike match, conducted in accordance with the cardinal principle of the challenger and defender contending 'on equal terms'. It also ignores the fact that George L. Schuyler deleted the words in question to enhance the protection of the challenger.
In the matches up to 1887, many of the races were sailed on the New York Yacht Club's 'inside course', which included the waters from Hoboken to Southwest Spit. These confined waters and the currents, shifting winds and heavy traffic of New York harbor made this course, in the words of 'Lawson's History of the America's Cup', a 'bad course at best, and a source of hot anger and fierce discontent to British skippers.'
When rewriting the Deed in 1887, George L. Schuyler recognized that 'annual courses', such as the Royal Yacht Squadron's and the New York Yacht Club's 'inside course', did not guarantee a fair match; thus he deleted the reference to them. Nothing in the history, however, suggests that he intended to permit the venue to leave the defending club's home waters, and as already observed, the continuation of the qualifications required for a club to challenge suggest the contrary.
In a letter by George L. Schuyler to the New York Yacht in July, 1890, he comments on the reasons for the change in the definition of the courses, as follows: 'The matter which I thought of greatest importance, when the new deed was drawn up, was that of courses. I wanted it so arranged that in case of a disagreement as to the conditions of the races, the boats would race in the sea without time allowance, and thus avoid the possibility of a challenger being left to the mercy of a club course where she would not have an equal chance to win.'
It would be abhorrent to any fair-minded person to convert a change in the Deed, which Schuyler made to better the challenger's protection, into one which would truly put the challenger at the mercy of the defending club.
Those supporting San Diego on the venue issue also rely on a statement in the December 30, 1987 ruling by Judge Ciparick of the New York Court, denying the application of the City of San Diego to be made a party to the proceedings, so that it could appeal the Court's prior decision of November 25, 1987. The Court ruled that the City lacked 'the requisite real and substantial interest' in the matter, its only interest being 'peripheral', as a possible site for the future competition; but the Court went on to add that the City would only be impacted 'when and if the San Diego Yacht Club as defender exercises its power to set the venue for the upcoming event.'
This last statement of the Court as to the power to set the venue constitutes, what in the law is known as 'obiter dicta', a Latin expression meaning something said 'by the way;' a remark or incidental opinion expressed by a judge on a point not necessary to the determination of the issue before the Court; any statement by way of illustration, analogy, argument or suggestion. Since such remarks by a judge are made without the question having been in issue, and without argument or full consideration of the point, they are not regarded as binding, even on the court making them, and have no standing as legal precedent.
In the present circumstances, the venue issue was not before the Court; Judge Ciparick never had the benefit of argument on the merits of the issue; and her statement was not necessary to determine the motion before her. Thus, if the issue of venue should come squarely before the Court, it is submitted the ruling will be that the defending club must hold the match in its home waters, unless the challenger mutually agrees to move it elsewhere.
It is also to be noted on this question, that when the New York Yacht Club moved the site from New York to Newport, Rhode Island, it did so under the mutual consent provision, and with the concurrence of all succeeding challengers. Moreover, that club maintains a station at Newport, its annual cruise usually begins and ends there, and the racing, which accompanies that cruise, is conducted in waters which include those where the America's Cup matches have been held for many years. Thus, this aspect of Cup history affords no support for San Diego's contention. The opinion by James Michael was never tested in the New York Supreme Court as San Diego YC determined that the 65ft catamaran would be superior to the 90ft LWL monohull in all conditions, and moving the venue for the Match was therefore unnecessary.
Since then the America's Cup venue was determined by bid in 2007 (Valencia, ESP), and ordered by the New York Supreme Court to be Valencia, ESP for the 33rd match in February 2010. It was sailed in the home waters of the holder, Golden Gate YC in 2013 after a bid process, and is currently out for bid to other venues for the 35th Match