Please select your home edition
Edition
ETNZShop-SUPPORTERRANGE-728x90 HR Top

Gladwell's Line- New America's Cup legal slugfest signaled by GGYC

by Richard Gladwell on 16 Oct 2009
Carlo Borlenghi/ Alinghi http://www.alinghi.com

The two year plus legal saga, otherwise known as the 33rd America's Cup, took a new turn today with the release of a letter from the Challenger, Golden Gate Yacht Club saying that they were considering filing a new complaint with the New York Supreme Court.

This concerns an alleged breech of fiduciary duty, by the Defender and current Trustee, Société Nautique de Geneve.

The second and third paragraphs of the letter addressed to the Club reads as follows:

'As custodian of this unique and historic trophy, your Club has many responsibilities. As Trustee under the Deed of Gift, SNG also holds a duty of care, and consequent liability, to all participants in the 33rd Match.'

'GGYC is considering filing a complaint with the New York Courts on the grounds of breach of fiduciary duty because of your Club’s actions over the past five years. Your selection of the venue for the 33rd America’s Cup would form part of that claim.'

While the letter says the breeches have taken place over a five year period, the instances cited would not even cover five months.

The transition of the America's Cup from a vanquished Defender to the Challenger/Defender has always been a weak point in the Deed and is covered by the penultimate paragraph of the Deed of Gift.

'AND, the said party of the second part hereby accepts the said Cup subject to the said trust, terms, and conditions, and hereby covenants and agrees to and with said party of the first part that it will faithfully and will fully see that the foregoing conditions are fully observed and complied with by any contestant for the said Cup during the holding thereof by it; and that it will assign, transfer, and deliver the said Cup to the foreign Yacht Club whose representative yacht shall have won the same in accordance with the foregoing terms and conditions, provided the said foreign Club shall, by instrument in writing lawfully executed, enter with said part of the second part into the like covenants as are herein entered into by it, such instrument to contain a like provision for the successive assignees to enter into the same covenants with their respective assignors, and to be executed in duplicate, one to be retained by each Club, and a copy thereof to be forwarded to the said party of the second part.'

Essentially the legalese requires that the vanquished Defender's final act is to sign a handover agreement for the custody of the America's Cup itself and the conduct of the subsequent Match consistent with the terms of the Deed of Gift.

In this case, the previous holder Royal New Zealand Yacht Squadron would have signed such a document with current Defender Societe Nautique de Geneve, and that if this action proceeds, and is successful then the responsibility for the organisation of the Defence would lie with the previous holder RNZYS.

The reality is that while the venue may change to one of RNZYS's choosing, possibly the Hauraki Gulf in early February 2010. And some of the rules may change, the race officials would probably not, having been already approved by the International Sailing Federation. SNG would still be the Defender of the Trophy, but not organiser of the Match.

Quite who would stand the cost of that exercise is another matter entirely.

However all that is looking a long way ahead.

Next step will most likely come from SNG in the form of an Open Letter, which will rebut the points raised by GGYC.

At that point GGYC, will have to consider whether it proceeds further with the unprecedented action.

The text and references released today by Golden Gate YC are as follows:


October 15, 2009

Le Comité Central
Société Nautique de Genève
Port Noir
CH-1223 Cologny
Switzerland
Société Nautique de Geneve


Mr. President and Members of Le Comité Central,

33rd America’s Cup Venue

I write to the Société Nautique de Geneve as Trustee/Defender of the America’s Cup on behalf of Golden Gate Yacht Club, Challenger of Record for the 33rd edition, and our representative team BMW ORACLE Racing.

As custodian of this unique and historic trophy, your Club has many responsibilities. As Trustee under the Deed of Gift, SNG also holds a duty of care, and consequent liability, to all participants in the 33rd Match.

GGYC is considering filing a complaint with the New York Courts on the grounds of breach of fiduciary duty because of your Club’s actions over the past five years. Your selection of the venue for the 33rd America’s Cup would form part of that claim.

As Trustee, SNG has the power and duty to choose the venue for the 33rd Match. Under New York law, this duty cannot be delegated. It is a clear and inescapable responsibility. This duty lies with your Club – not with Alinghi, ACM, or Mr. Bertarelli.

SNG has announced Ras Al Khaimah as your choice of venue for the 33rd Match, and I am taking this opportunity to urge you to reconsider that choice in respect of your duty and responsibility as Trustee.

As to the suitability of Ras Al Khaimah, please take the time to read the following articles that are freely available:

• Sheikh Khalid Bin Saqr al Qasimi, said this when a Ras Al Khaimah-connected terrorist cell, planning attacks on major tourist hotels in Dubai, was arrested:
'The fact that the terrorist cell was linked to Ras Al Khaimah is the latest evidence that the close ties between the current regime in Ras Al Khaimah and Iran is not in the best interests of Ras Al Khaimah or the United Arab Emirates.'
http://www.reuters.com/article/pressRelease/idUS158304+18-Sep-2009+PRN20090918

• Sheikh Khalid Bin al Qasimi’s address to lawmakers in Washington was reported in the New York Post:

http://www.nypost.com/p/news/international/sheikret_weapon_9yUfltJE6wSELzdcRJLhtK

• Mr. al-Mansuri, connected to the RAK ruling family, was one of those arrested in connection with this terrorist cell:

http://www.washingtontimes.com/news/2009/sep/17/uae-kept-tight-lid-on-disrupted-terror-plot

• George Webb, head of the Canada Border Services Agency Counter Proliferation Section, interviewed by The National Post, stated that UN Sanctions-prohibited microchips destined for Iran were routed through Ras Al Khaimah:

'Ras al-Khaimah is actually leased by the Iranian government, staffed by Iranian customs.'

http://www.nationalpost.com/most-popular/story.html?id=2052630

• Respected terrorism analyst Douglas Farah has noted links between Ras Al Khaimah, gemstones and the Taliban:

'One thing of significant importance (and which had not developed at the time of my reporting on diamonds and al Qaeda) is the emergence of both Dubai and Ras al-Khaimah (two of the seven emirates of the United Arab Emirates, one of only three governments to recognize the Taliban when it was in power the first time) as leading diamond markets and gemstone centers.'

http://www.douglasfarah.com/?pg=7

• Viktor Bout, well-documented Russian arms trafficker now under arrest, operated from Ras Al Khaimah. United Nations List of Individual/Company Frozen Assets refers:

http://www.un.org/sc/committees/1521/1532_afl.htm

• Contrary to these reports, Dr. Khater Massaad states, 'There are no security issues to be concerned about in the UAE. That's a fact.' However, this recent New Zealand Herald story reports 44 terrorism-related arrests:
http://www.nzherald.co.nz/sport/news/print.cfm?c_id=4&objectid=10599659&pnum=0

• Dr. Massaad also claims that the proposed venue is complete and the area is free of all security concerns: 'There has never been any security concern so far in the UAE and I don't see any reason why we should have any now!'

http://valenciasailing.blogspot.com/2009/08/valencia-sailing-talks-to-dr-khater.html

However, Martin Tasker of TV New Zealand visited Ras Al Khaimah. His report (6 October) showed the venue as a building site.

http://tvnz.co.nz/othersports-news/new-legal-war-facing-americas-cup-050347/video
Gul 2020 FOOTERSea Sure 2020 - FOOTERSOUTHERN-SPARS-MISSY-FURLING-BOOMS-728-X-90 Bottom

Related Articles

America's Cup Rialto: Nov 30 - A revealing day
On the basis of what was seen on Monday, currently there are no standout performers The Practice racing expected to start in a week or so, will give some inkling as to how this Cup will unfold in 2021. But on the basis of what was seen on Monday, currently there are no standout performers.
Posted today at 3:07 am
Shattered dreams
It's impossible not to feel sorry for Alex Thomson having to pull out of the Vendée Globe It's impossible not to feel sorry for Alex Thomson having to pull out of the Vendée Globe. He cut a dejected figure in the cockpit of his Hugo Boss IMOCA as he made his way towards Cape Town following the damage to his starboard rudder.
Posted on 30 Nov
Kings Day Regatta at Florida Yacht Club
A wonderful weekend of competitive sailing The Florida Yacht Club and J/24 Fleet 55 hosted twenty-one very enthusiastic J/24 competitors to a wonderful weekend of competitive sailing at the 2020 Kings Day Regatta November 21-22, 2020.
Posted on 30 Nov
Kevin Escoffier (PRB) activates Distress Beacon
Jean Le Cam alters course to assist Kevin Escoffier, 40, who is racing in third place in the Vendée Globe solo non-stop around the world race, positioned some 550 nautical miles SW of Cape Town, has triggered his distress beacon.
Posted on 30 Nov
A message from Alex
Speaking for the first time after his dreams of Vendée Globe victory end Alex Thomson speaks for the first time after his dreams of Vendée Globe victory end in heartbreak.
Posted on 30 Nov
Vendée Globe Day 23 morning update
The big chill: The sailors are now in a strong south-westerly flow The leaders of the Vendée Globe fleet are now in a strong south-westerly flow approaching the Cape of Good Hope. Leader Charlie Dalin, is expected to cross the first great Cape this afternoon.
Posted on 30 Nov
RS:X Europeans at Vilamoura, Portugal overall
A full planing medal race concludes the event in spectacular style And that's a wrap! The 2020 RS:X Europeans came together in spectacular style with a full planing medal race. Whilst initially held on shore the fleet launched shortly after one o'clock and although the wind was up and down it was mainly above 13 knots.
Posted on 30 Nov
PredictWind's new weather routing algorithm
Completely new code that offers unparalleled performance PredictWind has announced a new weather routing algorithm with completely new code that offers unparalleled performance.
Posted on 30 Nov
Vendée Globe Day 22: Be thankful for small merci's
Huge support for Alex Thomson as he heads for Cape Town Charlie Dalin, the Vendée Globe race leader, should pass the longitude of the Cape of Good Hope on Monday, the first of the mythical 24,296 nautical miles solo round the world's three Great Capes.
Posted on 29 Nov
Hot J/crews at Hot Rum Series II
Continuing to perform well in the competitive series J/Boats continue to perform well in the competitive Hot Rum Series in San Diego, hosted by San Diego Yacht Club.
Posted on 29 Nov