America's Cup Court decision again goes in favour of BMW Oracle

by Richard Gladwell, Sail-World on 15 May 2009
The New York Supreme Court has ruled that the Match for the 33rd America's Cup must take place in February 2010, in accordance with the decision handed down by Justice Herman Cahn, in the same Court.

In the second decision, on the point of BMW Oracle Racing having to provide a Customs House Registry document of their 90ft multihull, currently sea trialling, the Court did not uphold the complaint raised by Alinghi/Societe Nautique de Geneve. There is no requirement BMW Oracle to provide the CHR dopcument now, or within 30 days as requested by the Alinghi parties.

Both rulings were made from the Bench by Justice Shirley Werner Kornreich. She further ruled that Alinghi/Societe Nautique de Geneve had to announce the venue by 8 August 2009 or face further Court attention.

The decisions were described by one source close to BMW Oracle Racing as 'a very, very good day for us'.

There was no fine or penalty imposed on Alinghi/Societe Nautique de Geneve as requested by Golden Gate YC/ BMW Oracle Racing.

On 2 April 2009, Golden Gate was confirmed as the new Challenger for the America's Cup by the Court of Appeals of New York. This followed a period of protracted litigation over whether the first club to challenge, Club Nautico Espanol de Vela, complied with the requirements of the Deded of Gift. CNEV described itself at once stage as a 'legal adjustment' and the Appeal Court ruled 6-0 in favour of Golden Gate YC, the second Challenger.

As a contesting Challenger, under the Deed of Gift, Golden Gate YC would have been be very foolish to nominate anything smaller than the maximum sized yacht permitted under the Deed, and they specified a 90ft x 90ft 'keelyacht' as their challenging vessel.

The current Court actions arise from the first Mutual Consent meeting held between Golden Gate YC, new Challenger of Record for the America's Cup, and Societe Nautique de Geneve, held at Geneva on 23 April where the Swiss club announced that they wished to defend the America's Cup on dates in May 2010, contrary to dates earlier specified by the New York Supreme Court.

Further SNG wanted to stage a multi challenger selection series before the Match , and offered to delay further to facilitate this Series.

The Challenging Club, Golden Gate YC sought written confirmation of the SNG proposals and once these were obtained, lodged Contempt of Court proceedings in the New York Supreme Court to have the original order upheld.

For its part, Societe Nautique de Geneve, raised the issue of provision of the Customs House Registry document, required by the Deed of Gift for the America's Cup to be supplied 'as soon as possible' and for GGYC to be disqualified, or reqired to submit the document with 30 days, given they have launched and been sailing a 90ft multihull for some time.

GGYC responded saying their yacht was still 'under construction' and the documents would be forwarded at the appropriate time.

All decisions were handed down from the Bench by Justice Lornreich, rather than issuing reserved decisions as previously. Additionally she called both parties to the bench and asked if they would submit to mediation on further points between them. BMW Oracle confirmed that they were happy to do this and had previously proposed this solution rather than resorting to the Courts, and proposed a number of mediators.

However this solution as not previously found favour with SNG/Alinghi. Alternatively the International sailing Federation could appoint an International Jury to hear and determine such issues, as in a normal regatta.

However the Int Jury is not likely to be appointed until the issuance of the Notice of Race in early August, or The Jury could be appointed earlier if invited by the event organisers.

The statement released by Golden Gate YC is as follows:

'Justice Shirley Werner Kornreich in the Supreme Court of the State of New York today upheld an earlier decision of the NY Court of Appeals to stage the America's Cup in February 2010.'

'Today's hearing should end any further delay to the 33rd America's Cup and we can now look forward to some exciting racing in state-of-the-art boats early next year,' Tom Ehman, GGYC spokesman, said following the hearing.'

On April 7, 2009, the New York State Court of Appeals unanimously ruled that GGYC is the rightful Challenger of Record and that the next match would be in ten months - early February 2010. However, in an April 23 letter to GGYC, Société Nautique de Genève (SNG) sought to unilaterally dictate that the match date be delayed to May 2010 in defiance of the Court, which triggered a motion to hold SNG in contempt of court.'

The Statement issued by Societe Nautique de Geneve is as follows:

'Société Nautique de Genève and Alinghi welcome Justice Shirley Kornreich's decision and confirm that it will be adhered to. The Defender of the 33rd America's Cup also welcomes the clarity that it brings. We now know that the America's Cup Match can take place in the Northern Hemisphere regardless of the date, which Justice Kornreich said can be agreed through mediation. In the event of no agreement being reached, Alinghi, representing the SNG, will race BMW Oracle, representing the Golden Gate Yacht Club, in February 2010.

In another important decision, Justice Kornreich ordered the GGYC to stick to the specifications of their Notice of Challenge and instructed the Challenger of Record to provide the Custom-House Registry as soon as possible.'