America's Cup - Off the Record - 28 April- It's back to Court we go

by Richard Gladwell, Sail-World.Com on 28 Apr 2009
Much of what we have written since the Appeal Court Decision of 2 April has come from various sources, international and local, close to the America's Cup action, who won't be quoted but are reasonably happy to talk off the record, on a 'not to be attributed' basis.

The issuance of an eTrack message from the New York Supreme Court indicates that papers have been filed in the Court initiating Contempt of Court proceedings in the case of Golden Gate Yacht Club vs Societe Nautique de Geneve.

Golden Gate Yacht Club is the new Challenger of Record for the America's Cup, instated to that position by two decisions of the New York Supreme Court and confirmed by the Appeals Court of New York.

Societe Nautique de Geneve is the Defender of the America's Cup, and was required in a decision of 7 April by the Appeal Court, to accept the Challenger in a 90ft yacht, lodged on 11 July 2007. At the first meeting of the Challenger and Defender last week, SNG announced that they were planning to stage the Match in May 2010, in apparent contravention of a New York Supreme Court Order stipulating that the Match should take place in three months earlier in early February 2010.

It has been rather obvious since the Appeal Court decision in early April, that SNG has been playing for time in meeting the US challenger, and has a number of ploys underway to achieve this end.

Last Friday in a 'Gladwell's Line' commentary, following the first Challenger and Defender Meeting, we wrote: 'The America's Cup seems to be destined to return to Court as a result of the action of Defender, Societe Nautique de Geneve rejecting the offer of a Multi Challenger event sailed in yachts to the AC33 rule, made by the Challenger of Record, Golden Gate Yacht Club.

'At a meeting in Geneva, on Thursday, SNG/Alinghi did not accept the Multi Challenger proposal, instead they opted for a Match in 90ft or 115ft LWL multihulls, the maximum sized yacht allowed in the Deed of Gift.

'SNG/Alinghi also announced that they would Defend in May 2010, and apparent contravention of a New York Supreme Court order requiring a match to be sailed on 8 February 2010.

'The response from Golden Gate YC and their team BMW Oracle Racing was to request that the statement regarding a Defence date be put in writing.

'Once that is done it seems that the matter will be referred back to the New York Supreme Court for further decision and action. The confirmation of dates by the Court could be done either by a letter to the Court, or at a full Hearing with a new Judge, as Justice Cahn has returned to private practice.'

That action has apparently happened with the email notification from the New York Supreme Court that papers had been lodged in a Contempt of Court action.

It was confirmed to Sail-World late last week that a letter had been sent from Swiss parties confirming the May date for the Defence, and the email from the Court at close of business for the first working day, that the expected papers had been filed in an action holding Societe Nautique de Geneve in contempt of a Court Order.

From here the usual process is expected to be followed, with the parties lodging a submission on the matter, followed by a short Hearing. From there it is possible that two courses of action could follow. The first is a full blown legal process - with two level of Appeal possible.

The other, is that the Court merely clarify the ruling given by Justice Cahn that the Match be held on 8 February in Valencia or at a venue to be selected by the Defender. Meaning that the Challenger and Defender could agree under the Mutual Consent provisions of the Deed of Gift that the venue would beqan Northern Hemisphere one, even though that hemisphere, as a venue, is not street legal outside the dates of May to October.

One legal source spoken to by Sail-World had it that SNG was hog-tied by the Deed of Gift, and that it was bound by agreement to uphold the Deed, and therefore could not stage a Match outside the provisions of the Deed. Yet the Cahn ruling has specifically required the Club to act in contravention of the provisions of the Deed.

Another source had it that 'the Court of Appeals made it pretty clear that they thought it was high time to get the racing back on the water, and though this motion is before a single Judge of the Supreme Court of New York, rather than the Court of Appeals, I would think that she would not be happy that SNG was prepared to ignore the plain language of the order.

'Golden Gate YC's success on the motion depends on what they filed with the motion. The mere fact hat at their initial meetings, SNG wanted to race in May rather than February might not be enough. on the other hand, if they have attached to their motion something in writing from SNG declining to race in February, or a declaration from someone at the GGYC challenge stating that SNG has orally refused to race in February, their chance of success goes way up.'

The specific content of the Contempt Motion will not be known until later today (NZT). The actual letter has yet to be sighted.

Parties associated with SNG were a little surprised at the move expressing the view that they believed that they were still in Mutual Consent discussions with Golden Gate YC, and that while no date had been set for a second meeting, that was expected to take place in a couple of weeks.

More to come ....

The New York Supreme Court notification is as follows:

WebCivil Supreme - Motion Detail Court:     New York Civil Supreme Index Number:     602446/2007 Case Name:     GOLDEN GATE YACHT CLUB vs. SOCIETE NAUTIQUE DE GENEVE Case Type:     Other Commercial Track:     Expedited Motion Information: Motion Number Date Filed Filed By Relief Sought Submit Date Answer Demanded Status Decision Order Signed Date 007  04/27/2009  PLAINT  Punish For Contempt    No  Open: Before Justice: KORNREICH      006  01/14/2008  DEF  Other Reliefs  01/23/2008  No  Decided: 17-MAR-08 MOTION DISPOSED AS INDICATED Before Justice: CAHN  Short Form Order   03/17/2008  005  12/27/2007  DEF  Reargument/Reconsideration  01/23/2008  No  Decided: 17-MAR-08 MOTION DISPOSED AS INDICATED Before Justice: CAHN  Short Form Order   03/17/2008  004  09/21/2007  DEF  Dismiss Action  10/29/2007  No  Decided: 27-NOV-07 MOTN DISP. AS IND. SET/ORDER Before Justice: CAHN  Short Form Order   05/12/2008  003  10/10/2007  DEF  Dismiss  10/22/2007  No  Decided: 27-NOV-07 MOTN DISP. AS IND. SET/ORDER Before Justice: CAHN  Short Form Order   05/12/2008  002  10/05/2007  PLAINT  Other Reliefs  10/22/2007  No  Decided: 27-NOV-07 MOTN DISP. AS IND. SET/ORDER Before Justice: CAHN  Short Form Order   05/12/2008  001      Prel Injunction/Temp Rest Ordr  10/22/2007  No  Decided: 27-NOV-07 MOTN DISP. AS IND. SET/ORDER Before Justice: CAHN  Short Form Order   05/12/2008