Terse reaction to latest America's Cup Appeal decision

by Richard Gladwell on 5 Nov 2009
The Golden Gate Yacht Club has issued a tersely worded response to the latest decision from the New York Supreme Court in response to a motion from the Defender, Societe Nautique de Geneve.

The Defender of the America's Cup was unhappy with the Decision from the Supreme Court, last Friday, declaring that the chosen venue of Ras al-Khaimah was not in compliance with the Deed of Gift. A previous order of the Supreme Court, prescribed that the venue for the 33rd Match, to be sailed in February, could be Valencia or any other location chosen by the Defender.

Last Friday, the Supreme Court ruled that a venue other than Valencia still had to comply with the provisions of the Deed of Gift, meaning that for a Match in February, the venue had to be held in Valencia or a Southern Hemisphere venue.

The original Court Order issued by Justice Herman Cahn also decreed that six months notice of the venue must be given - meaning that a venue had to be named by 8 August 2009.

SNG has not yet named a venue which has either been upheld by the New York Supreme Court as being valid, or one with which the Challenger, Golden Gate Yacht Club agrees to sail under the Mutual Consent provisions of the 19th century Deed of Gift for the America's Cup.

GGYC are on record as having said they are open to sail in either Valencia (Spain) on 8 February 2010, or Auckland (New Zealand) on the same date. Spokemen for SNG/Alinghi are on record as opposing Valencia on safety grounds in the Spanish winter and saying that 'Auckland would be the last place they would choose as venue in the Southern Hemisphere, ' presumably a reaction to their interesting history in the City of Sails.

Golden Gate Yacht Club believe they have to agree to the match being sailed in any venue other than Valencia - as the venue announcement is now within the six month period of the Court Order, and therefore cannot be made arbitrarily by the Defender - which is their right. A further provision of the Deed of Gift is for the Match to be sailed under the rules of the defending yacht club.

The statement issued in the name of Tom Ehman, spokesperson for the Golden Gate Yacht Club reads:

'The Appellate Division in New York has rejected the Swiss defender’s request to freeze last week’s Supreme Court decision that Ras Al Khaimah (UAE) did not comply with the Deed of Gift for the 33rd America’s Cup.

'Golden Gate Yacht Club said Ras Al Khaimah was wrong all along. The Supreme Court said it was wrong last week. And the Appellate Division said no to a Stay today. The message is clear. But is anyone at Société Nautique de Geneve and Alinghi receiving it?

'SNG/Alinghi will try one more time to have Ras Al Khaimah re-installed in a fast-track expedited Appellate Division application due to be heard in the coming weeks.

'The race dates for the 33rd America’s Cup remain unchanged, commencing February 8th, 2010.

'Justice Kornreich ruled from the Supreme Court bench on Wednesday October 27 that Ras Al Khaimah was not Deed-compliant. There will be a further hearing before her this Friday. The Court will determine if Valencia (Spain) is confirmed as the venue – as both sides had previously agreed to this in Court - or if SNG/Alinghi can still choose a Deed-compliant location in the Southern Hemisphere despite the expired six month notice of the venue that the Defender is required to give the Challenger.

'For two years Alinghi has attempted to turn the America’s Cup into the Alinghi Cup. For the ninth time, the Court has said no.

'GGYC remains more determined than ever in its efforts to return the America’s Cup to an equitable competition with normal rules and procedures.'

Earlier this week SNG filed papers with the Appellate Division of the Supreme Court, challenging Supreme Court Justice Shirley Kornreich's decision on the venue of Ras al-Khaimah. Accompanying that Appeal was a request for a Tolling Order which would have stopped the clock on the regatta, and that countdown would have restarted once the matter had been through all stages of Appeal and a Decision issued.

The latest Decision means that while SNG still have a live Appeal in the Appellate Division of the Supreme Court, on the question of a venue, the clock is counting down towards on a Match for 8 February 2010. The Match still has to be sailed on that date. The only option would be for SNG to take an Appeal on the Tolling Order to the final level of Appeal, the Court of Appeals, in Albany, and hope for the decision of the lower Court to be overturned.

In SNG/Alinghi's favour, the Appeal to be heard by the Appellate Division of the New York Supreme Court has been expedited, or fast-tracked. Barry Ostrager, a New York lawyer who represents Alinghi's backing yacht club, Societe Nautique de Geneve, expects briefs to be filed by the end of next week and oral arguments will be held before Thanksgiving on 26 November. In the past Decisions have taken about six weeks to be handed down, which could take until January 2010. Best case is for a Decision from the Bench of the Appellate Court - which would still leave one level of Appeal available to the losing party.

In other words the timing is very, very tight for a Match to take place as scheduled.

Today's decision is risky for SNG/Alinghi as there are now just three months left to the Match for which a valid venue should have been announced three months ago. While SNG/Alinghi may still have the right of further Appeal on the Tolling Order, they are losing time and risking other consequences if they cannot stage a match on the required date with adequate notice to the Challenger.

The granting of a Tolling Order would have been very significant on two counts - it would have pushed the time for the Match into the May - November window, which would have allowed a Match to take place in a Northern Hemisphere venue. For the potential Challengers for the 34th America's Cup any change in the dates for the 33rd Match would have forced the 34th Match to miss a time of July 2011, and would have set this Match back into 2013 or later - due to a wish to avoid a conflict with 2012 Olympics.

The measure of disparity between the Defence and Challenging parties can be gauged by the fact that all are assembled in New York, are awaiting a Court Hearing that has been moved back to Friday, and yet they cannot meet and reach agreement between themselves on the key issued for the Match, but instead are allowing the New York Supreme Court to determine the conduct of the event.

A further Hearing is set down for Friday before Justice Shirley Kornreich, where she will hear submissions from the parties on the Remaining Issues in which she posed five question to be answered by the parties, plus a specially appointed panel of Expert Jurists - or three members of the 2007 America's Cup Jury. They will consider the questions on matters of Load Waterline length measurement, safety of sailing off Valencia in February, and rules and Jury process issues relating to n America's cup sailed under the Deed of Gift terms in the absence of Mutual Consent.

Two legal issues still lie on the table of the New York Supreme Court, being an appeal to the Appellate Division on the venue decision by the New York Supreme Court. The second issue is a suit alleging Breach of Fiduciary Duty duty by Societe Nautique de Geneve alleging that the Swiss club has not acted properly in its role as the current Trustee f the America's Cup.

SNG have until the end of November to respond to that allegation, which if it proceeds with be the subject of a trial process.