Laying Down the Law…

Justice Cahn has spoken… on the 17th March 2008, the New York State Supreme Court ruled in favour of BMW Oracle and the Golden Gate Yacht Club (GGYC), pushing aside the efforts of Alinghi and the Societe Nautique de Geneve (SNG) to overturn the 27th November 2007 judgement. If you haven’t been paying attention that was the one about the Club Náutico Español de Vela (CNEV) not being a proper Challenger of Record, substituting the GGYC in their place. So the judge read the wedge of ‘Keel Yacht’ papers provided by SNG, and dumped them in the trash where they belonged…

So much for the headlines, the detail is murkier, our gold standard in these legal matters has been Cory Friedman, writing in Scuttlebutt, and his latest take on the affair (Part 18, god help us...) makes it clear that he isn’t clear if this latest judgement is an actual court order, or not. If it is, then the you-have-30-days-to-appeal clock starts ticking. If it isn’t, then we’re still waiting for the order that has been pending since the end of November.

Still, that might not matter - Alinghi have declared that they won’t appeal in a statement posted on their website. But then, they said that before and then changed their minds, only to apparently change them back again.

Just as critical a part of the equation going forward is the date in Alinghi’s announcement – they are saying that they look forward to a Deed of Gift match with the GGYC in July 2009. But we know Oracle have in mind a date rather earlier – October 2008. In a phone call to Cory Friedman, quoted in the Scuttlebutt article, Ernesto Bertarelli tells our hero that…

‘SNG would not be ready to race in October 2008 if that turns out to be the date. He (Bertarelli) further confirmed that, if pressed to race in October 2008, SNG will forfeit.’

Friedman’s next action was to call GGYC and talk to Tom Ehman – who reckoned that as Challenger, they have the right to choose the match date and if SNG doesn’t like October 2008, then it’s up to them to do something about it. A later story in The Times online had a further explanation from Ehman on how the October date has been arrived at:

‘The Deed of Gift says that the Challenger chooses the date and must give ten months’ Notice of Challenge. So we challenged last July. We gave them not ten months, we gave them 12 months’ notice and chose dates in July 2008.

‘In December, after Justice Cahn’s ruling, we agreed with their attorneys then - they have since been excused by Alinghi - that we would race in October [2008]. So we gave them another 11 months’ notice from Justice Cahn’s decision and a total of 16 months’ notice [from the original challenge], and now they want two years’ notice. As far as we are concerned it is in October, we won’t go back now. Even though Justice Cahn makes it quite clear that the match could be in July [2008], we stand by our agreement.’

Are we headed back to court on this one? Justice Cahn has told them both that if they can’t agree a date for the match, then they can come back to him for a ruling, or use an independent neutral arbitrator.

So this looks like the next front in the battle, but I’d been reading the whole Keel Yacht affair as part of that same rearguard action on the part of Alinghi: namely, using the courts to stall because they had started the multi-hull design and build process after Oracle and were playing for time to catch up.

On the face of it, it’s hard to see how SNG are going to bring about a Cup match in 2009 without using the court to further this same strategy. But when you read the order, you can see how Alinghi might have decided that the legal route was not getting them anywhere – despite two sets of extremely expensive lawyers.

So their next move has been to send a letter to the GGYC, which is posted on their website, to explain why they think that the earliest date a match could happen would be 1st May 2009. This argument is largely based on the idea that the ten month notice period is interrupted by the litigation. This notion is discussed in Justice Cahn’s decision where he states, ‘Contrary to SNG’s assertion, that the parties wound up entangled on legal proceedings, which “interrupted” the 10-month period, does not invalidate the Notice of Challenge’.

Although Justice Cahn is not expressly dismissing the idea of an interruption to the 10-month notice period, given those quotations marks I’m not sure I’d want to be stepping up in front of him and trying to argue its validity in order to postpone the event to 2009…

So… perhaps… Bertarelli’s declaration that Alinghi would forfeit the Cup rather than be forced to race in October 2008 is the first shot in a new gambit – calling the court and Oracle’s bluff. Would Larry Ellison accept the Cup as a forfeit, and collect the opprobrium of the world along with it?

And there’s another angle here (since we seem to have started a game of what if...), which is that the time and place of the forfeit would presumably be at Ernesto Bertarelli’s choosing, by delivering a letter to that end to the GGYC - no prizes for guessing what might well be delivered a couple of seconds later… no, not a pizza… another Deed of Gift challenge for the next America’s Cup.

Once SNG’s challenge was placed with the newly minted Cup holders (by forfeit) at the GGYC (for the summer of 2009, presumably), they would have to accept it. The circle would be complete and the rest of the challengers would be just as locked out as they are now… And the Deed of Gift match goes back to July 2009 anyway.

This idea has some traction (hey, I’m speculating, but who isn’t?), given how hard it is to tune in a picture of Bertarelli just handing the Cup back… It might be the best leverage he has for getting the Deed of Gift match when he wants it – and short of having a representative of the GGYC’s preferred Challenger of Record accommodated in the entrance hall at the San Francisco yacht club 24/7 to shadow all arrivals of mail and couriers, I don’t see quite what Oracle can do to counter this play…

There are various responses to all this posted around the net, if you haven’t caught up with them yet, then Dalts response for Emirates Team New Zealand (ETNZ) is on their website, and the K Challenge reaction is on BYM News

Meanwhile, sailing preparations continue unabated at BMW Oracle. It looks like the latest to sign up to the Coutts juggernaut are former ETNZ sail designer, Robert Hook, and Craig Phillips. Phillips has long been Hooky’s right-hand man, joining him at OneWorld in 2003, and then moving to ETNZ for the 2007 Cup - I can’t remember any further back than that…

The rest of the BMW Oracle sailing team were also announced this week, along with a training programme that spans Extreme 40s to TP52s. Joining Coutts at the back of the boat are John Kostecki (tactician), Jimmy Spithill (helmsman), Hamish Pepper (strategist) and Michele Ivaldi (navigator). There are plenty of names from the 2007 Oracle sailing roster, but there are more from the old Luna Rossa sailing team that Spithill led to a Louis Vuitton semi-final in 2007. What there aren't are any multi-hull specialists - these guys all have America's Cup stamped through them like rock... check out the recently resuscitated BMW Oracle website (bring back the BOB!) for the full list.

Also away from the courts, Team Shosholoza has been forced to deny reports that it’s folded (just like most of the world’s investment banks then). The head honcho, Captain Salvatore Sarno commented that they still had staff at the base in Valencia and, ‘In South Africa, our naval architect Alex Simonis and his team is working on our new AC 90 campaign yacht. We are going ahead even though the rules and dimensions might change.’

And there was a Paris presentation by Marc Pajot, head of the new French America’s Cup challenge, French Spirit. I think (it’s all in French) that Pajot announced that he will be joined by Philippe Presti as skipper and Bertrand Pacé as helmsman – a pretty tidy starting line-up. Presti was the back-up helmsman with Luna Rossa in 2007, and Pace is a former ISAF number one ranked match racer. This is of course for the 34th Cup, as the 33rd will be invites only to Oracle and Alinghi…

Mark Chisnell ©