Simpson Thacher & Bartlett LLP, New York attorneys for Société Nautique de Genève (SNG) filed a motion to renew and reargue in front of the court in the case opposing GGYC and SNG on the 33rd America’s Cup. Lucien Masmejan, lead counsel for the SNG, responds to few questions allowing a better understanding of why this has been done. Why are you filing this motion to the judge?
In substance, we have seen the CNEV rejected as Challenger of Record because of the date of the holding of their annual regatta. The judge appointed then GGYC as Challenger of Record without further instruction, but no one – including the judge - brought its attention on the fact that GGYC challenge was not receivable due to a major flaw in their boat certificate, a key document as per the Deed of Gift.
Furthermore it is our conviction –and also the opinion of the highest Court in the state of New York- that New York courts should not interfere with the complex rules associated with organizing and administering the America's Cup. It would be best leaving this to the sailing community. What is the purpose of the boat certificate and what actually is wrong with GGYC certificate?
The purpose of the boat certificate is to give the Defender a precise idea of what the challenging boat will be in order to prepare its Defence. The history of the Cup has shown how important was the adequacy of the certificate with regard to the validity of the challenge.
Now, the document submitted by GGYC describes a keel yacht, which is by definition a mono-hull, with a size of 90 feet X 90 feet. We want to make sure this is the boat they would show up with and not a multi-hull, or their challenge would deem to be invalid. What would then happen?
Assuming CNEV would no longer be the Challenger of record and GGYC Certification proven defective, other challengers would then have priority over GGYC as Challenger of Record. The list of competitors has now no less than 12 challengers who entered before the deadline of December 15. All these competitors are looking for a multi challengers competition along the lines of the Protocol and the Rules and Regulations presented in November and that they committed to. What is your ultimate objective and why such a procedural process?
Our objective is quite simple and we recurrently expressed it. Have a 33AC with a multi challengers’ selection series in AC90 Yachts. As the date cannot be 2009 anymore, we would be looking towards 2011.
To answer the second part of your question, I would reiterate that we are not the ones who chose the legal path. Now, we simply continue the process, so the GGYC has to comply with the same level of details they required from CNEV. To read the original Notice of Challenge from Golden Gate YC click here?nid=40294 To read the affidavit of Fred Meyer of Societe Nautique de Geneve click here?nid=40294 To read the Memorandum of Law filed by Societe Nautique de Geneve click here?nid=40294
Richard Gladwell, Sail-World NZ's Editor comments:
l’hydroptere on the crane - wisely the Deed of Gift talks of 'vessels' to permit a variety of sailing craft to be used. Photo Laurent Vidal / Photomer.com - Hydroptere.com?nid=40294
The motion filed by SNG depends on the use of the word 'keel yacht' in the opening paragraph of the Notice of Challenge, and asks the Court to accept SNG's assumption that such a boat can only be a monohull. The certificate goes on to advise of the draft of the boat with centreboards raised and with centreboards down. It should be noted that with this size of multihull (which a boat 90ft x 90ft can only really be) that it is common practice to include some ballast in the centreboards to ensure that they have more than neutral bouyancy. Other yachts all use varying combinations of crew, ballast and form stability to provide righting moment, and it is difficult to believe that SNG are serious in their assumption that a boat of this size would be expected to have no external ballast, or be of a single hull, or that the dimensions of the smaller hulls are relevant from the perspective of designing a suitable opponent.
The relevant section of the Deed of Gift states:
'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 centerboard or sliding keel be considered a part of the vessel for any purposes of measurement.'
There is no requirement for the Challenger to give a general description of the vessel with which they intend to challenge. In fact if this were the case there would always the be opportunity for the Defender to argue that their general description was in some way misleading, even though all the measurement requirements of the Deed of Gift had been met.
Further the Deed clearly contemplates the use of sliding keels, as used by the AC90 class, but a sliding keel could also be used by the GGYC Challenger. Does this make it a keel yacht?
The Mercury Bay decision also makes it very clear that the 'Four corners of the Deed' must apply when there is no ambiguity. In this case there is no ambiguity, as the measurements required under the Deed of Gift, have been supplied.
The Deed of Gift is consistent in that it talks of vessel(s). And, whether the Challenger or Defender is of one hull or many, it is still a vessel - as is a hydrofoil.
Further if the Mercury Bay decision is applied (as it must be) then the Defender is entitled to respond with any boat type it pleases. Thus if GGYC stated they were challenging with a keel yacht, SNG is under no responsibility to respond with the same type of boat - and would be quite entitled, under the Mercury Bay decision to respond with a catamaran, trimaran or hydrofoil.
Much of the SNG view is predicated on the assertion that a 'keel yacht' is really a 'keelboat' as used to categorise recognised and international classes by ISAF in terms of administration. There is no definition of a keelboat in the ISAF Regulations, and the purpose of the designation is to define various groupings and for administrative processes, such as the required geographic spread of the classes to maintain their world championship status, for instance, or use as Olympic equipment in say a keelboat event. Interestingly in the space of one paragraph in the affidavit, SNG's Fred Meyer works from the use of 'keel yacht' to 'keel-boat' to 'keelboat'.
The decision of the Appellate Division of the New York Supreme Court in the case known as Mercury Bay can be read by by clicking here?nid=40294