NY Supreme Court: “Is that Being Practical, Guys?”

“Let’s get on with it. We’ve only got two years. Let’s go yachting. We can’t wait much longer,” says Hamish Ross, General Counsel for Alinghi/Ernesto Bertarelli, out on the front steps of the New York Supreme Court in downtown New York City, following the much-anticipated Day in Court.

Forty-five minutes before, he and an army of lawyers in gray suits, packed into a musty, wood-paneled courtroom, and met with Judge Herman Cahn regarding the legal action brought by BMW/Oracle (Golden Gate Yacht Club). AT ISSUE: The selection of the Challenger of Record for America’s Cup 33 in 2009, against Defender Alinghi (Société Nautique de Genève). IN DISPUTE: The validity of the Challenger of Record, Club Náutico Español de Vela, selected shortly after the conclusion of the final match race.

The judge appeared to be the only person smiling in the room. In fact, he seemed most jovial and relaxed, almost to be enjoying himself, as he stressed being “practical” regarding the legal arguments concerning LEGITIMACY of the federation or yacht club status of the current Challenger of Record, a group pulled together for the purpose of organizing and overseeing the next batch of Challengers for the Cup. Absent in the current America’s Cup 33 process? Any U.S. entry, including Larry Ellison’s BMW/Oracle, previous Challenger of Record, and his prickly legal-eagles.

In about two weeks, the judge will issue his ruling, amid his other case-load of trials involving rapists, murderers and local felonies in a city of 10 million. (No wonder he was smiling: This was one of those days, if only a piece of it, where he could preside over affairs involving “legal technicalities” and civil tongues, some of whose owners sported rep ties and discrete pins from various clubs.)

The judge mumbled a reading of the complaint and courtroom attendees strained to hear every word. A man dressed in athletic clothes who was seated in the very last row said he was an avid sailor who happened to be walking by with his son and saw a bunch of sailors and lawyers heading to court. All rushed through airline-type security inside the massive building resembling the U.S. Supreme Sourt in Washington, D.C. Next to him, his son, anticipating great courtroom action, almost immediately fell asleep. It was that sort of 45-minute hearing: Some animated comments by opposing sides, talking about the definition of a yacht club, versus the Deed of Gift’s interpretation and common law practice as rolled out under prescribed Protocol rules for the event. There was, one had to admit, a lot of dead air and empty dialog. The words were all in the massive documents that each side had filed.

“Let’s be practical,” the judge chided the attorneys. “They’re a club. I don’t see what’s so terrible about this. Who’s to say if it’s strong enough or what difference a federation or trust or club makes,” he added, seeming to agree partially with the Alinghi legal team, or not.

The BMW/Oracle legal response noted that the definition’s “so important” because no one should be accused of trying to “steal” the Cup, by setting up a sham Club to control the Challengers, as though this had never been attempted or done before by a U.S.-based yacht club (no names, NY Yacht Club).

On the other hand, the deed clearly defines a club as ANY organization, that’s foreign and licensed, that may challenge for the Cup, countered the Alinghi squad. Previous sailing committees AND the New York Yacht Club have accepted such challenging clubs, with specifics and at least three examples spelled out in massive legal (not so) briefs filed by each side.

Alinghi: We’ve already promised the Challengers that THEY can basically choose the “displacement” (size) of the next America’s Cup yachts, if they are afraid that Alinghi is secretly designing and getting ready to build a new monster boat, before the Challenges have a close look at the specifications. We’ve also made a number of other concessions to the Challengers (a.k.a., Russell Couts, representing BMW/Oracle, as skipper and team senior officer).

“We are happy with the way the hearing went and look forward to a result,” commented Alinghi General Counsel Ross. “The argument is a technical one. It is a straight out legal interpretation of the Deed of Gift.” He said BMW/Oracle was trying hard to shift the legal question to matters of the Deed of Gift or the Protocol.

Both sides stood before news media TV crews both inside and outside the courtroom. Media representatives included cable TV, radio, the Associated Press, and a few (well-dressed) sailing Bloggers (all on good behavior, your Blogster might add).

Both sides claimed to be “pleased” with the outcome, and the treatment they had received in the courtroom.

Question: When they bring in the lawyers, is the sport dying?

Answer: Let’s hope not. There have been massive legal challenges in the past. None seems to have quite “killed” the sport, but none also seems to have “strengthened” it either.

Heard outside during a TV interview of the BMW/Oracle spokesman: Questioned when they and the US would mount a Cup Challenge, since, to day, NOT ONE U.S. team has as yet mounted a formal challenge, his response (oddly): “We’ve already mounted a challenge. This is it.”

Both sides continue a dialog and in some sense appear to want to settle the legal issues “out of court” and in an “appropriate resolution.” One can only hope . . . before this gets too far a field and the next Cup is either postponed…or….