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America’s Cup legal fights near the end

The “battle of the billionaires” should finally move out of the court and onto the water in February 2010 — the date Judge Shirley Werner Kornreich has set for the 33rd America’s Cup in a May 14 order that both sides hailed as a victory.

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The 33rd Cup has been in litigation for two years.

Barring a decision otherwise by mutual consent — and there’s almost nothing these two have agreed on yet — Larry Ellison’s BMW/Oracle and Ernesto Bertarelli’s Alinghi teams will meet in a two-out-of-three series in 90-foot (LWL) multihulls, probably in Valencia, Spain, though Swiss defender Alinghi and sponsoring club Societe Nautique de Geneve can choose someplace else if they wish.

SNG will have to make that decision by Aug. 8. In arguments before the New York Supreme Court, SNG attorneys did not name Valencia as their choice for the next venue, but insisted the club wants to race the next Cup in the Northern Hemisphere.

The February date was indeed a vindication for Golden Gate Yacht Club, BMW/Oracle’s sponsoring American club. GGYC hauled SNG back into court May 14 claiming contempt because the Swiss club wanted to move the Cup date back to May 2010 in defiance of an earlier court order. BMW/Oracle said it was a delaying tactic intended to give SNG more time to build its boat. SNG claimed the February date conflicts with the Cup’s Deed of Gift, which says a Cup can’t be raced between November and May in the Northern Hemisphere because of weather considerations.

Judge Kornreich said the earlier court order of a February 2010 race date takes precedence over the deed and, in any case, if SNG doesn’t want to race in northerly latitudes in February it can move the race south of the equator. Alinghi’s lawyers say they don’t want to do that.

Alinghi also had something to crow about. First, Kornreich rejected GGYC’s petition to find the Swiss in contempt and fine them. Alinghi also had asked the court to force GGYC’s hand to secure a Custom-House Registry — an official description of its raceboat — from the Coast Guard and submit it to the defender, Alinghi, per instruction of the deed of gift.

Kornreich, in her oral opinion from the bench, said SNG should know what kind of boat it will have to race against, but told the defender the Deed of Gift doesn’t set any deadline for submitting the Custom-House Registry. She said the boat specifications that GGYC included in its challenge issued two years ago should suffice as notification of the kind of boat it intends to race.

She warned GGYC that if the boat it brings to the starting line is different from the boat it described in its challenge — a 90-foot-long, 90-foot-wide, single-masted, sloop-rigged “keel yacht” — it will be disqualified. BMW/Oracle has been sea-trialing a 90-foot trimaran for this battle of the titans; Alinghi is still building its boat, reportedly a 110-foot (LOA) catamaran.

One interesting sidelight of the hearing was an SNG allegation that BMW/Oracle had sent a French sailmaker from its design team, Antoine Jean Bonnaveau, to spy on the Alinghi compound in Montpellier, France. Under police questioning — the results of which are included in SNG’s court filing, Bonnaveau acknowledged he was surveying the compound. He said he was taking measurements of the building tents from a distance using a range-finder and GPS, and hoping to see the boat being moved from one tent to another. Bonnaveau told police this sort of thing is common in America’s Cup competition and that Alinghi had been observing BMW/Oracle’s boat during recent sea trials. French police were investigating a possible charge of violation of privacy with a camera. Bonnaveau says he didn’t think he was doing anything wrong.

SNG presumably included this information in its filing to suggest that GGYC was withholding its Custom-House Registry so it could change its design, if necessary, in response to its findings about Alinghi’s boat, but Kornreich didn’t bite. When SNG’s attorney tried to bring up the espionage charges, she didn’t want to hear them.

— Jim Flannery