NY Courtroom: The Entire Scene

Earlier this week, a small California yacht club brought suit against the holder - - the two-time Defender - - of the America’s Cup (the “literal” defender: home club Societe Nautique de Geneve, Ernesto Bertarelli, Team Alinghi et al/). That’s their right (it’s America; you can anyone, anytime, for just about anything, including a scalding cup of coffee). This tiny club’s astonishing membership roster, the roster of the sleepy little Golden Gate Yacht Club, the plaintiff, somehow includes a billionaire, who’s the previous America’s Cup Challenger of Record: Larry Ellison of BMW/Oracle fame.

The BMW/Oracle vs. Alinghi hearing proceeded ponderously in one of Manhattan’s grand and intimidating buildings that houses the New York Supreme Court, the state’s lowest court. Atop this building’s massive Greek columns it says: “The Timely Administration of Justice is the finest Pillar of Good Government.” In this lowest of cases, it should say beneath the statement: “No case too small, too meaningless or too petty to drive away all semblance of spectator and fun from the sport.” Or, simply, “Grudges settled, buck stops here.”

The building faces a plaza in which a rather odd, but huge, sheet-metal statue seems to ridicule the goings-on inside the building, since it resembles an upraised hand with its middle finger raised. (Actually it’s something called the “Triumph of the Human Spirit,” a tribute to a New York City African Burial ground, where 427 Africans were excavated.). The statue is SUPPOSED to be two mythical antelopes, locked horns upraised, romping away on a flat-bottomed boat. But that’s a story for another day. Yet it seems apropos, as two goliaths inside the coliseum share the limelight, and sailors outside offer the proverbial finger of tribute to one and all. It’s would almost be funny, if there weren’t so much money at stake.

In this case, the Court issue appears to boil down to the legitimacy of a certain microscopic yacht club (What ARE it’s dues, anyway, and where does one send them?). the gist: “When is a yacht club really a yacht club?” When it’s formed (the moment of conception)? When it hosts a regatta? When it serves it first lunch? When a bunch of boat owners fall down drunk at the bar? Just when? How about when someone says it is, someone pays dues and the check doesn’t bounce or when others join in the fun? How many members does it have to have? Can it also have motorboat members? Social members? A website? A burgee? Parking out front for the commodores?

Your Blogster knows of a New York club with a pool, tennis courts and a full-scale marina filled with boats. Is it MORE of a club than the one down the road that has an empty building for catered parties only, restrooms, no full-time staff, and a couple of slips?

For the America’s Cup and its oldy-moldy Dead of Gift, a yacht club is supposed to hold a major regatta. That’s just about it - - it doesn’t say when, where, how or why. Two Sabots and weighted down Clorox bottles for buoys might qualify nicely. Or two Sabots and one America’s Cup yacht with PHRF ratings of 350 and -10, respectively.

The Alinghi guy’s think the Club Nautico Espanol de Vela (CNEV), a spawn of the Spanish Sailing Federation, qualifies as a club, albeit a new one and was paper-based (don’t all clubs start with reams of paper?), and it certainly “exists” as much as some of the previous Challenger clubs that were accepted in yesteryear by various Defenders.

This is actually the SECOND time an America’s Cup lawsuit has gone to trial. The first time, back in 1989, Dennis Connor’s high-end catamaran went up against a giant J-Boat-like vessel, and David slew the dragon. The rest is history.

The judge neatly sliced through the legal (no so) briefs, targeting three areas for discussion:

* The legitimacy of the Challenger of Record club, certainly as an appropriate “balance of power” of all the Challengers against the Defender
* The seeming “outgrowth” (read “taint”) or birth of this club from Amerca’s Cup 32 (July 2007), the immaculate conception of the Spanish Sailing Federation (which, in part, is responsible for bringing the sailing event to Valencia, Spain - - read, the “money side” of the Business of the America’s Cup match-race, read possible conflict of interest
* The easily verifiable holding and/or scheduling, or lack there of, of a sailing regatta, a particularly difficult thing for a paper-club to pull off, since most yachts require notice and changes in their crowded racing schedules to add a new event to their calendars. An event can be held and no one might show except a few local stalwarts

In any case, Hamish Ross, representing Alinghi, advised Yachting journalist John Rousmaniere afterwards that “with every passing day, Alinghi’s hoped for deadline of July 2009 (for the next match-up) becomes less likely.”

As John summed up: “After about 30 minutes of lively discussion, the judge announced, “There will be a decision shortly.” (read—2 weeks). Out in the lobby, nobody declared victory, but nobody declared defeat, either. Later, the two sides reserved a meeting room at the New York Yacht Club for Tuesday morning.
One of the great things about America is how effectively a little judicial pressure can bring sense and civility to even the most bitter disputes.”

Real Contrast: Cup Sailing vs. The Courtroom

This past weekend your Blogster taught an American Sailing Association course on Coastal Cruising aboard one of Dennis Connor’s 50-foot America’s Cup-type boats called Formula 1’s. (No fools we didn’t sleep aboard, we over-nighted in a local club.) We sailed UP Manhattan's East River, right in front of the United Nations (!), through Hell Gate, and on into Long Island Sound. We managed to hit Hell Gate at slack tide, rather than fight the 3-6 knot tidal currents. We navigated to a local club and later to Stamford, Ct., right into your Blogster's backyard.

The 2 ½ -day class introduced adult students (an NYU professor, an art buyer, a sourcing manager and some financial types) to “life” aboard one of these gorgeous America’s Cup-type boats. All passed the course and became ASA certified, acing the exam the final day of the class.

Formula 1’s draw 10 feet (!), making “cruising them” a bit impractical, since many harbors in the New York area run out of water at about 8 feet. We moored these two scaled-down America’s cup yachts at the Manhasset Bay Yacht Club, which also happened to hosting the annual Long Island Sound “Fall Series,” attended by a number of local speedsters. Needless to say, everyone had seen our arrival and had marveled at our sailing skills catching a mooring (Well, maybe not the latter, but we were an impressive sight with our 75-foot masts, fully battened mains, and massive sail plans!).

One J-105 sailor said they had topped out that afternoon at about 11 knots. Aboard the Formula 1’s, we easily topped 14.9 knots in modest breezes, romping quietly over all sailboats in the area, even some motorboats. These flush-deck rockets feature low freeboards, double wheels, and massive winches. They also are no frills down below (OK, it’s empty and rough down there), and feather-touch steering. Students learned grinding, tacking and gybing these powerful rigs. The boats accelerate upwind at speeds approaching planning, and turn with even the slightest motion or twitch of the wheel by the driver. This must be just a FRACTION of the fun (and physical strains) aboard a full-sized America's Cup yacht, from man-handling the main, to dragging up headsails from a dark pit within the bow.

What CONTRAST in a single week: One day happily blasting around the Sound in the fastest boat around. The next, sitting in a claustrophobic courtroom filled with attorneys and TV crews arguing the finer points of history and common law. Sigh. America, what a country!

Which venue carried more “sex appeal?” One guess. (It had hanks, halyards and smiling crews.) Yes, let’s get out of the courtroom and go yachting!

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….