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Lawyers battle over Cup cat

Hero or hijacker? The question has swirled around night watchman Todd Tholke, who filed a $200,000 salvage claim after finding the French America’s Cup World Series team’s 45-foot catamaran in the dead of night after it drifted away from a San Francisco pier.

Todd Tholke towed the AC45 back to shore with his Boston Whaler.

Tholke initially was praised, and a synopsis of the event on the French Energy Team’s website said he had been invited to join the team in the prestigious guest position during the last race of the series. “Fortunately, the sea was calm, and the damage was very limited,” the team said on its website Oct. 1, the day after the AC45 was returned.

What the French team did not expect was for Tholke to file a claim in the U.S. District Court for Northern California invoking centuries-old maritime law and saying that “due to the strength of the wind and currents and the nighttime conditions” it took him several attempts before he “lashed a line onto a rudder post and pulled the Energy Team AC45 off its perilous position on the rocks.” Compensation for the salvage “should be in excess of $200,000,” the claim filed Oct. 4 contends.

The lawyer representing the French team and its boat has rebutted Tholke’s salvage claim, calling his motion “demonstrably false.” Noah Hagey asked the judge in the case to vacate the “arrest warrant” that was placed on the boat after the claim was filed. “Energy Team’s crew relies on its sailboat to earn a living and hereby moves the court to vacate the vessel’s [arrest] or, in the alternative, to fix a reasonable security so that its crew can reclaim its use,” according to papers filed Oct. 23. “Such a security should not exceed $375 in light of the ‘services’ rendered, representing $125/hour for the three hours plaintiff claims he expended in ‘rescuing’ the vessel on Sept. 30, 2012.”

Tholke arrested the Energy Team’s sailboat based on a “falsely verified complaint that misstates all of the material facts surrounding his supposed ‘salvage’ of the vessel,” the French team’s response says.

Lawyer John Edgcomb, who is representing Tholke, says his client called the Coast Guard immediately after finding the boat. “He was really just seeing if they were going to go and get it, and apparently they indicated they would not be under the circumstances,” Edgcomb says.

Tholke called to inform the Coast Guard “of the immediate peril of the Energy Team AC45,” and he conducted a salvage service “upon learning that the Coast Guard would not come to the aid of the perilously situated Energy,” court documents say.

A Coast Guard transcript and photo of the recovery that Soundings obtained shows that Tholke, who identified himself to the Coast Guard as the night watchman at the Treasure Island Marina, did not ask for assistance in the vessel’s recovery. “I think I got a humdinger for you,” transcripts of the call show Tholke saying. “This is going to be on the news. This is going to be so funny.

Photo by Gilles Martin-Raget

“It’s drifted and it’s on the rocks, but it’s barely touching,” Tholke told the Coast Guard. “I was going to go get it with my Whaler, but I was thinking, um, I didn’t want someone to think I stole it. … It’s like a quarter-of-a-million-dollar yacht someone forgot to tie up. It’s not on the rocks. It’s just like touching it right now.”

A photo of Tholke aboard his 15-foot Whaler towing the 45-foot catamaran shows the San Francisco-Oakland Bay Bridge lit up in the night and flat water. Hagey says Coast Guard records show winds that night were between zero and 2 knots.

After the claim was filed, the cat was “arrested” by a U.S. marshal Oct. 7 and was being stored — disassembled and in two containers — in a warehouse leased by the America’s Cup Event Authority.

Even before the arrest of the AC45, the French team had realized it wouldn’t be able to compete in the 2013 Cup finals because it lacked the funding and sponsorship to build an AC72 catamaran, the yachts that will be used, for the first time, next year, according to Jean Yves Lendormy, a San Francisco lawyer who had worked with the team on a fundraiser dedicated to a youth sailing initiative. “That’s why they’re not here next year. They don’t have a sponsor,” Lendormy says. “This year, they only had one sponsor — you can see that on their sail, and it’s a little sponsor. These guys are a little Swiss watchmaker. It’s not like the British team with J.P. Morgan.”

Edgcomb says the team’s financial status is not relevant to the claim. “Their insurance should cover salvage claims and should have provisions for posting security,” he says. “The next America’s Cup World Series races are in Italy in April, so I don’t know when they need [the cat] next. If they want their boat, all they have to do is post security.

“They have an insurance policy,” Edgcomb adds. “In the popular press they say these boats cost over a million dollars, and I believe the Energy Team says they bought theirs in 2011, so if you were the owner, wouldn’t you insure it?”

The online community has cast blame at everyone for the fact that the boat went adrift in the first place, from citing poorly tied knots to accusing Tholke of cutting the cat loose as part of a scheme, although the boat’s escape seems to be one of few details not in dispute among the stakeholders.

The AC45 was docked at San Francisco’s pier 30/32 between America’s Cup World Series races. The outgoing tide reduced the water depth enough for the cat’s chain to get caught on debris beneath the pier, Hagey says. When the tide turned, the cat rose and the chain, which remained caught, failed. The boat then drifted three or four miles to Treasure Island’s Clipper Cove, where Tholke, who is also a musician, is a liveaboard.

In a June newspaper article focused on Tholke’s open-mic gigs, Tholke said he lived on his boat as a way to continue pursuing his dreams of making music. The Coast Guard transcript shows Tholke identified himself as a night watchman at the Treasure Island Marina, which is not uncommon for a liveaboard. The 2012 San Francisco Bay Plan says marinas may exceed the authorized number of liveaboard berths, provided “that a great number of liveaboard boats is necessary to provide security or other use incidental to marina use.”

Edgcomb says the invitation to ride in the final leg of the race was publicly stated but not directly extended to his client, another point Hagey denies. “I’m really trying to defend Todd’s reputation because it’s really taken a beating,” Edgcomb says. “I’m trying to give the perspective that he really does have a valid salvage claim so we can avoid terms like ‘hostage’ and ‘pirate.’ ”

The sailing community has rallied around the French team; others say Tholke is due a large reward. “The United States has this reputation for being a very litigious country, and here you have this wonderful event in the America’s Cup World Series that’s possible for even a team with modest means to participate, like the French team, and everyone is absolutely wonderful,” Lendormy says. “And all of a sudden it’s marred by the acts of one person.”

“For the people in the boating community and the people in the Bay Area, who are very generous and neighborly, it’s just a big black eye,” Hagey says.

December 2012 issue