America's Cup- Customs House Registry Hearing transcript released

by Sail-World on 11 Aug 2009
Sail-World has obtained copy of the Official Transcript of the Hearing, 10 August 2009 in the New York Supreme Court to consider the question of whether BMW Oracle Racing had provided their Customs House Registry document 'as soon as possible' as required by the Deed of Gift.

The document underlines, how literally the Court reads the Deed of Gift, and as stated at an earlier Hearing BMW Oracle Racing have been threatened with Disqualification, by Justice Shirley Kornreich. She has reserved her decision in this case




1 SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY : CIVIL TERM : PART 54
2 --------------------------------------
GOLDEN GATE YACHT CLUB,
3 Plaintiff,

4 -against- Index No.
602446/07
5 SOCIETE NAUTIQUE De GENEVE,
Defendant, Hearing
6
CLUB NAUTICO ESPANOL DeVELA,
7 Intervenor/Defendant
--------------------------------------
8
August 10, 2009
9
60 Centre Street
10 New York, New York 10007

11 B E F O R E:

12 HON. SHIRLEY WERNER KORNREICH, Justice

13
A P P E A R A N C E S:
14
LATHAM & WATKINS LLP
15 Attorneys for Golden Gate Yacht Club
885 Third Avenue
16 New York, New York 10022
BY: JAMES V. KEARNEY, ESQ.
17 AARON SIRI, ESQ.

18 SIMPSON THACHER & BARTLETT LLP
Attorneys for the Societe Nautique De Geneve
19 425 Lexington Avenue
New York, New York 10017
20 BY: JONATHAN K. YOUNGWOOD, ESQ.
THOMS J. WELLING, JR., ESQ.
21

22 P R E S E N T: LUCIEN MASMEJAN

23 Anne Marie Scribano, R.P.R.
Senior Court Reporter
24

25

2
Proceedings




1 THE COURT: Just briefly, on the record, I

2 received a letter from, I believe it was the SNG

3 people, notifying me that the measurements -- the

4 mode of measuring the boat was issued, am I correct?

5 And also the place of the race has been --

6 has been issued, as well, am I correct?

7 Both sides, yes?

8 MR. KEARNEY: (Indicating)

9 MR. YOUNGWOOD: That's correct, your

10 Honor.

11 THE COURT: All right. And we also know,

12 at this point, it's been conceded, as I said in my

13 decision, by the firm who represents SNG that there

14 will be -- there will be small motors or winches for

15 the sail?

16 MR. YOUNGWOOD: Yes, your Honor.

17 THE COURT: And ballast --

18 MR. KEARNEY: I'm sorry, I didn't

19 understand that, your Honor.

20 THE COURT: That the rules are going to

21 change. Rules 49 through -- what was it? -- 54 --

22 MR. YOUNGWOOD: Yes, your Honor.

23 THE COURT: -- of the rules will be --

24 will not be used, the yachting rules.

25 So there is notice as to all of that to

3
Proceedings




1 the defendant.

2 MR. YOUNGWOOD: To the challenger.

3 THE COURT: I'm sorry.

4 The challenger.

5 I'm sorry. Strike that.

6 The challenger.

7 MR. KEARNEY: Your Honor, I don't know if

8 this is an appropriate time to address this for this

9 purpose, but I must state for the record that we

10 received the measurement rules on Thursday evening

11 and they, as we read them, suggest to us that

12 commitments that were made that the rules would not

13 be used -- that the rules would not be used to

14 disqualify our boat, commitments made to that effect,

15 and commitments that ballast, movable ballast, was

16 permitted are now put back into question because of

17 the measurement rules we received.

18 THE COURT: In what way? Can you be a

19 little clearer?

20 MR. KEARNEY: Yes, I can be.

21 Let me go to the measurement rules

22 themselves that you've just seen, your Honor, that

23 you just had up there.

24 And perhaps it would be useful, your

25 Honor, if we were to mark the rules and letter for

4
Proceedings




1 identification.

2 Do you want to do that?

3 THE COURT: Absolutely.

4 It doesn't even have to be for

5 identification, you can mark it either -- well, I

6 guess it would be in the exhibits -- mark it as a

7 Court Exhibit, Court Exhibit 1.

8 MR. YOUNGWOOD: Your Honor, this is an

9 exact copy of what was submitted to you last week.

10 THE COURT: I have it. I have a copy.

11 MR. KEARNEY: What we're marking as Court

12 Exhibit 1 is the measurement rules that were sent to

13 both the Court and were sent to our client, Golden

14 Gate.

15 (Court's Exhibit 1 marked)

16 THE COURT: And the caption reads at the

17 top of the page, 'Measurement Procedures for 33rd

18 America's Cup Issued By SNG, 6 August 2009.

19 MR. KEARNEY: And the reason, your Honor,

20 why this is particularly germane today is that it

21 also goes to the question of when we can finish our

22 boat, because, as you had pointed out in the past --