David Boies fronts up on America's Cup issues in TV interview

by Richard Gladwell on 27 Oct 2009 Ahead of tomorrow's Hearing in the New York Supreme Court, Golden Gate Yacht Club's counsel, David Boies, has appeared in a short interview on CNBC discussing the case and the key points, with which GGYC is taking issue.

There is as yet no announcement of the lodging of a Breach of Fiduciary Duty action against Societe Nautique de Geneve, in its role as the current Trustee of the America's Cup.

In their letter to Justice Shirley Kornreich on the 16 October 2009, David Boies said such action was still being considered and would be lodged within 10 days if it was to proceed. That deadline would seem to have run out in New York, where it is now early evening. However certainly it would certainly be expected to be lodged before the Hearing scheduled for 27 October at 1100hrs in the New York Supreme Court.

To view the interview with David Boies http://www.cnbc.com/id/15840232?video=1308539895&play=1!click_here

Against the legal backdrop, the teams continue to work up in Ras al-Khaimah UAE, and San Diego for an America's Cup Match currently scheduled for 8th February 2010.

Alinghi are testing a new mast in Ras al-Khaimah aboard their catamaran. BMW Oracle Racing are in the final stages of fitting out their modified BOR90 - with the major changes being a shortened main hull and removal of all grinding pedestals and the fitting of an on-board engine and hydraulic systems to provide winch power.

In the course of a previous Court Hearing, SNG disclosed that certain Racing Rules would be dropped - allowing the use of hydraulic winch systems, engines and movable water ballast, which would not be taken into account when measuring load waterline length, although all other weight and crew were required to be aboard for this measurement. SNG also required the rudder to be taken into account in determining the waterline length of the Challenger. Alinghi had been designing and developing their Defender taking into account these modified, but unannounced, rule changes.

In the Court Hearing tomorrow, GGYC are contesting the validity of the Rules approach adopted by Societe Nautique de Geneve, for the forthcoming Match.

SNG are also claiming that under a previous ruling of the Supreme Court, confirmed by the Appeal Court, that they are, as Defender, allowed to select a venue that is 'anywhere' they choose - and have selected the Emirate of Ras al-Khaimah in UAE, where Alinghi team boss, Ernesto Bertarelli has business interests. GGYC's view is that the venue must either Valencia (specified in the Supreme Court Decision) or some other venue that they agree mutually with SNG, or a venue selected by SNG which is 'Deed compliant' meaning that it must be in the Southern Hemisphere for a Cup staged outside the northern hemisphere summer season.

A similar legal argument over the meaning of the word 'having' in the 19th century Deed of Gift for the America's Cup took over a year and three levels of Appeal to be resolved; and resulted in the Challenger selected by SNG, Club Nautico Espanol de Vela (ESP), being declared ineligible under the terms of the Deed of Gift, by the New Supreme Court - a decision later confirmed by the Court of Appeals in Albany, NY.

Justice Shirley Kornreich may rule from the Bench tomorrow on both matters, due to the advancing date of the Match. Or, she may reserve a decision, which typically takes six weeks to be published - which would be around mid-December, and then be subject to an Appeal process on the Rules issue.