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Date set for America’s Cup … for now

New York judge’s ruling for a March 12, 2009 series contradicts the tournament’s Deed of Gift

New York judge’s ruling for a March 12, 2009 series contradicts the tournament’s Deed of Gift

The decision is clear, but the outcome remains murky.

New York Supreme Court Judge Herman J. Cahn has decided on a date for the 33rd America’s Cup. It is March 12, 2009 — 10 months from the issue of a May 12 order enforcing the judge’s decision to uphold Golden Gate Yacht Club (GGYC) and BMW/Oracle’s Deed of Gift challenge to Cup defender Alinghi. That means BMW/Oracle and Alinghi could — but still might not — meet in three races one-on-one in 90-foot multihulls, starting March 12, 2009. Despite the decision, the date is not final because the Cup is not out of the legal thicket — not by a long shot.

First problem: The Deed of Gift, which sets the rules for the Cup unless defender and challenger agree otherwise, says the Cup regatta cannot be raced in the northern hemisphere in winter, Nov. 1 to May 1. Société Nautique de Genève’s attorney, Lucien Masmejan, notes this problem in the club’s official response to Cahn’s decision. He says that since the deed doesn’t permit winter racing in northern climes, the date for the 33rd Cup should be pushed back to May 2009. Cahn’s order says the 33rd Cup will be in Valencia, Spain — where Alinghi hosted the 32nd Cup and wants the next one — or any other location that SNG and Alinghi choose. Alinghi has shown no interest in moving the Cup to a southern venue, but whether the Cup moves to another venue or not, Cahn says Alinghi must give BMW/Oracle six months’ notice where it will be.

Masmejan raises a second problem: On April 14, his client, SNG, appealed Judge Cahn’s March 17 order denying SNG’s motion to rehear the Cup case and invalidate BMW/Oracle’s challenge under the Deed of Gift. Masmejan says SNG is pleased that the judge acknowledged in his decision on the Cup’s dates that it was unreasonable for BMW/Oracle to set October 2008 — 10 months from Cahn’s first Nov. 27, 2007 decision — for the 33rd Cup while Alinghi still was litigating, BMW/Oracle’s Deed of Gift challenge in court. Following that same line of reasoning, Masmejan says that since an appeal now has been filed, the clock on the 10 months’ notice for the Cup shouldn’t start ticking until the Appellate Division of New York Supreme Court has rendered a decision.

GGYC’s official response to the decision was tepid. It says it is pleased Cahn is requiring Alinghi to give six months’ notice of the venue. “We will now be considering the order to determine our next steps,” says GGYC spokesman Tom Ehman, which sounds like more legal briefs from that quarter as well.

Masmejan details some reasons SNG still thinks BMW/Oracle’s challenge is not valid in a Q&A about the appeal on its Web site, . “The Challenge submitted by GGYC [and BMW/Oracle] on 11 July 2007 does not supply the information prescribed in the Deed of Gift and is not only ambiguous but also contradictory in places,” he writes. “GGYC are now tactically withholding the custom-house registry and vital technical information regarding the boat that they will challenge with from the defender. This tactic is against the terms of the Deed of Gift and most certainly in contrast with the intentions of George Schuyler,” who had the Deed of Gift drawn up.

BMW/Oracle’s response to the appeal is that Alinghi is just buying time.

“Our view is that this defender simply does not want to sail in any race that is not set up entirely on its own terms,” GGYC says on its Web site, . “These claims are just excuses to keep stalling.”

On the matter of Cup dates, Alinghi had told Judge Cahn it couldn’t build a 90-foot multihull by Oct. 1, 3 and 5, 2008, the dates challenger BMW Oracle had set for a three-race series between the two teams. Alinghi’s president Ernesto Bertarelli said BMW/Oracle had agreed to suspend, for the duration of the legal proceedings, the 10-month notice for the race prescribed in the Deed of Gift. BMW/Oracle said the 10-month clock began ticking Nov. 27, 2007 when Cahn decided BMW/Oracle was the legal challenger.

Alinghi said in late-April it was “getting ready” to build a multihull pending resolution of the legal issues. BMW/Oracle meanwhile has been busily laying up theirs — under wraps — in a 100-foot by 200-foot shed in Anacortes, Wash.

“The rules for all contestants are clear,” BMW/Oracle said, responding to Alinghi’s appeal. “Both teams have had the same time to get ready.”

Alinghi says it would have been foolish for it to start building a boat with litigation still underway, the outcome of that uncertain and the boat specfiiciations in GGYC’s challenge ambiguous and contradictory. “Our sole objective is to race in a competitive America’s Cup Match,” Masmejan says. “We have stated our desire for a fight on the water sometime after May 2009, but GGYC continue with the destructive strategy that has already eliminated all other challengers.”

The five-judge appellate panel has agreed to expedite Alinghi’s appeal. A decision was expected in June.

Back in March, Alinghi asked Judge Cahn to rehear its arguments to invalidate BMW/Oracle’s challenge on grounds that the challenge is flawed because it describes the challenger’s boat as a “keel yacht” 90 feet long and 90 feet wide, which it found contradictory. Masmejan says BMW/Oracle still has not clarified what it means by a 90-foot by 90-foot keel yacht. The motion to rehear the case also argued that GGYC’s challenge should be superseded by an earlier one from Club Nautico Espanol de Vela (CNEV), which Judge Cahn had ruled invalid because the new club had never held an annual regatta as required by the Cup Deed of Gift. Alinghi asked the judge to reinstate CNEV’s challenge in place of GGYC’s because the Spanish club in the meantime had held an annual regatta, which now qualifies it as a club. CNEV’s status as a bona fide club and its controversial negotiation of a one-sided race protocol favorable to Alinghi without consulting other challengers is what threw the Cup into an uproar and drew BMW/Oracle’s court challenge and its two-boat Deed of Gift challenge.