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Will America's Cup legal disputes ever end?

by Eric Sharp, on 4 Sep 2009
America’s Cup - how many more years of litigation lie ahead? BMW Oracle Racing Photo Gilles Martin-Raget

If you’re a law student and wondering what would be a lucrative field to enter, give serious consideration to becoming a lawyer for the Swiss or American teams fighting over the rules for the next America’s Cup. It’s looking like this dispute will carry you into retirement.

American billionaire Larry Ellison has filed new legal actions accusing Ernesto Bertarelli, his Swiss billionaire counterpart, of willfully misinterpreting and changing long-established rules in an effort to disqualify Ellison’s BMW-Oracle trimaran from even sailing in the America’s Cup scheduled for Feb. 8 at Ras al Khaimah on the Persian Gulf.

BMW-Oracle, which represents San Francisco’s Golden Gate Yacht Club, also wants the New York Supreme Court, the trustee of the 158-year-old sailing competition, to make public some secret rule changes that the Bertarelli’s Alinghi team, representing the Societe Nautique de Geneve (SNG), obtained from the International Sailing Federation (ISAF) for the 2010 America’s Cup.

The new American legal challenges will probably result in the racing rules for the next cup, and the rules that determine if a boat is legal, continuing to move through the court system and eventually being decided by the full New York State Court of Appeals some time this winter.

But even if that final court lays out rules that force both sides to race, it’s no guarantee that the final winner will be determined by the three-race series in the Middle East. Nearly a year after the American catamaran beat a giant New Zealand monohull in the 1988 one-on-one mismatch, the Kiwis got a court decision that ordered the Americans to forfeit the trophy, which was first won by the schooner America in a race against and entire fleet of English yachts in 1851.

That order was later overturned by a higher court and the San Diego Yacht club held the trophy until the Kiwis took it down under to Auckland in 1995, defended successfully in 2000 and lost it to Switzerland in 2005.

In 2007 Ellison challenged the Swiss under the 1887 Deed of Gift, which lays out the rules for a three-race grudge match if the challenger and defender can’t agree on the rules by mutual consent. Consistent with that document, the American challenge described a boat that would be no more than 90 feet long on the waterline, 90 feet wide and with a maximum draft of six feet.

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