Over It…

A fair bit of water has flowed past the becalmed America’s Cup since my last post, a few weeks back. Alinghi's skipper Brad Butterworth had a go at Team New Zealand's Grant Dalton, but Dalts refused to bite.

Alinghi’s head honcho, Ernesto Bertarelli, went to Valencia looking to cut a deal for the venue of the 2009 America’s Cup match, even though Justice Cahn of the New York State Supreme Court (in whose hands the matter rests) has still to decide the date.

BMW Oracle announced officially what we’ve all known for a long time - that they are building a boat for the Deed of Gift match. And Alinghi followed up with an announcement that it’s going to take fifteen months to build their boat for a race that Justice Cahn may well schedule for this October. Perhaps they started ten months ago, and perhaps they didn't...

There was another predictable legal volte-face from Alinghi, when they returned to the courts in their efforts to stave off the Deed of Gift race until they have a boat ready for it – Noah should be so lucky as to have had recourse to the New York State Supreme Court Appellate Division.

Fortunately, the inestimable Cory Friedman was there to make sense of it all in Part 21 and Part 22 of his Scuttlebutt oeuvre. Or not, depending on how you good you are at following tediously complex legal cases. I think his conclusion was that it's about to start raining on Alinghi's parade, and they need a little more Old Testament sense of urgency when it comes to boat building.

To all of which, my response was… yeah, well, yada, yada, whatever…

So it’s been hard to summon the enthusiasm to write something that might be worth reading. But eventually, guilt and/or a misguided protestant work ethic kicked in and I sat down to have a quick scout around the usual suspects on the interweb, to see if there was anything I'd missed. But when I turned up at the ever reliable Mariantic, I found this…

Mariantic is taking a break. Thanks for your support. More later.

I thought… maybe I’m not the only one with Cup fatigue.

And then I thought… what a great idea.

Enough already.

I have no fear for the future of the Cup. George Schuyler’s Deed of Gift and the desires that it inspires have always proven to be bigger than the shabby behaviour (and there’s a long, long history of it) that those very same desires can provoke. It’s the nature of the thing - the peaks of Fremantle’s liquid Himalayas were followed by the troughs in the swells of San Diego's 1988 mismatch - boom and bust, recession and bubble…

The Cup will get back on the water and put this shambles behind it, and that’ll be a good time to start taking an interest again. But I don’t need to follow every memo, motion, argument, appeal, order, stay, toll and cross-motion in the meantime, not least because Cory Friedman is doing a vastly superior job of it.

But also because I can see a whole lot more golf in that particular hole - given the attitude of the protagonists - and frankly, I’d rather write about sail boat racing, or travel, or just about anything other than two or three (four, five?) more years of arcane legal procedures in a New York court, accompanied by Alice in Wonderland press releases and briefly interrupted by three days of (albeit spectacular) but very one sided yacht racing.

So this blog will be back with a new brief, just as soon as I’ve figured it out. And if nothing inspires before then, the Volvo Ocean Race is coming up at the end of the northern summer, and that is going to be worth watching.

In the meantime, so long, and thanks for all the fish.


Mark Chisnell ©

Groundhog Day

Out of court, and straight back into court, sounds familiar, right? Ernesto Bertarelli’s promise to get the America’s Cup show back on the water turned out to be about as reliable as England’s so-called ‘golden generation’ were on Wednesday night… No, sorry, that’s not a good metaphor; the over-paid, over-rated bling merchants are reliably awful.

The week started with another exchange of volleys in the press release/letter war. You may recall that when we left things just over a week ago the warring factions were primarily engaged in a skirmish over the date of the Cup match – July 2008 (as specified in the Golden Gate Yacht Club’s (GGYC) original Deed of Gift Challenge), October 2008 (the date GGYC say they subsequently agreed to with Societe Nautique de Geneve (SNG) last November) and July 2009 (the date that SNG are claiming for the match).

After that story was posted, things really livened up, with a flurry of letters, claims and counter-claims. There might have been a time when I’d have sifted through these, and summarized each missive with a link… though I prefer to think not. Anyway, now I have a life. If you don’t, you can find them all in the usual places – the GGYC and Alinghi websites.

When you stick it on high heat for a while, all these words boil down to the usual: both sides blame each other for the current impasse, and neither will shift from their position.

They eventually got the opportunity to tell each other this in person, with a meeting on Wednesday 26th March in Geneva. The outcome was soooo predictable… Alinghi’s press release was entitled - SNG frustrated with meeting outcome. Oh really? I never would have guessed. GGYC were more guarded, but it made no difference. Alinghi followed up in short order with an announcement that they were returning to Justice Cahn and the New York State Supreme court for a decision on the date of the Deed of Gift Match. Alinghi posted their letter to Justice Cahn for us all to read, and GGYC followed up with their own legal response.

Again, cutting to the chase, Alinghi’s case is all about the idea that the 10-month notice period stipulated in the Deed of Gift is suspended (or 'tolled' as Alinghi call it) by the legal action – as they claim GGYC have already agreed to, and GGYC vehemently deny (this is a good BYM News interview with Tom Ehman). I could harp on about this legal stuff, but frankly, Cory Friedman will do a better job on Scuttlebutt when he posts his latest missive on the opposing arguments on Monday 31st March…

Meanwhile, the good Justice (who would be well on the way to winning ISAF’s World Sailor of the Year if it wasn’t for the fact that our august governing body have given every appearance of siding with Alinghi) hasn’t wasted any time, and he’s set a date for the court hearing of Wednesday April 2nd - after which, we can all tune our sets to stand-by again (or switch them off, if you’re carbon neutrally inclined) until Justice Cahn pronounces.

Then what happens…?

My money has it that the court is more likely to set a date of July 2008 than July 2009 and if that happens SNG/Alinghi are in a whole world of hurt. Expect the toys to come hurtling out of the pram and Alinghi to either return the whole thing to the court with an appeal, or less likely but more entertainingly, try something like the forfeit/rechallenge strategy I outlined in the last post.

The October 2008 date is the more interesting, as Alinghi could make this one – whatever they may claim. They have time to build a boat even if they start now, never mind if, as Tom Ehman points out in the above interview and one of the GGYC’s many press releases of the last week, they started back in December ’07 (they have signed up Alain Gautier for multi-hull training).

So this one could go either way, SNG can still play the venue card – they get to decide whether the race is in 5 knots off the Island of Capri, or 25 knots of the island of Oahu (the word on the Valencian street is that the Oracle camp is fully packed and containerised and ready to go anywhere in the world). Not to mention that SNG/Alinghi can choose the rules (How about... no boat shall be penalized for a collision... take that one and ram it into your lightweight multi-hull, Larry). Alinghi might just decide that they really aren’t getting any joy from the court, and return to what they’ve demonstrated they are good at – winning tough yacht races. Or they might not.

And if it’s July 2009, I don’t think we’ll be hearing much from Alinghi except for the crowing. And although GGYC might make a fuss about being hard done by, if the rules and venue are something they can live with, I suspect they will also accept the date. They still have a headstart, and there’s nothing to stop them maintaining it by building a second multi-hull, based on the lessons they learn from the first. In fact, given that Alinghi’s Protocol limitations on two-boat testing won’t be applying to this regatta, they could conceivably crank up a full two boat programme between now and then, and wouldn’t that be fun to be a part of…

The other possibility is that Alinghi swaps horses mid-race and offers a multi-challenge event for 2011 (or even 2009) under the compromise Protocol (proposed by GGYC and backed by the other challengers) that they, SNG/Alinghi, had previously turned down last autumn. This one would really put the cat amongst the pigeons back at Oracle Towers.

Whatever their motives when they issued their Deed of Gift challenge back in July last year, I doubt that Oracle believed that Alinghi would so comprehensively sail themselves downwind into a narrow creek with a square rigger. But they have, and right now, Oracle have a hand on the prize. They are one court judgement away from going into a Cup match with a serious jump on their opponents. Would you give that up if you had the opportunity – even if, when you started out, you just wanted a fairer deal for the Challengers in a multi-team event? I didn’t think so… but that call ain't gonna make you look good.

And finally, there’s a peach of an article by Vincenzo Onorato on the Mascalzone Latino website, where Vincenzo gives it to Alinghi with both barrels, loaded with number ten shot (you don’t want to break the glass - I’ve been reading No Country for Old Men).

The story finishes by looking forward to a day where the 33rd Match is all over, and Oracle have won – clearly a glass-half-full kind of guy - but the ideas are rock solid:

If possible, get Louis Vuitton back on board – they define the event, as much as the name America’s Cup, and their presence will reassure other sponsors.

Use the old boats and limit new hull builds to one – there’s a need to cut costs at a time when all the teams are struggling for sponsors and cash. (And personally, I doubt the credit crunch/US recession is going to improve matters for anyone anytime soon.)

Race as soon as possible – like, you know, 2009.

You can’t argue with any of that – roll on the day…

And don’t worry, Vincenzo, we haven’t forgotten why this all kicked off in the first place.


Mark Chisnell ©

A DoG fight between CaTs…

It’s been sliding this way for a while, but events in the last couple of weeks confirm that the America’s Cup has slipped off the edge into a looking glass world where nothing is as it seems, or as anyone says it is…

Exhibit 1

Posted on the Alinghi website, where Tom Schnackenberg gave his views on the 90’ long barge that he (apparently) believes Oracle will be using in the Deed of Gift challenge. We talked in the last post about Alinghi’s latest legal contention to the New York State Supreme Court that the Golden Gate Yacht Club’s (GGYC) challenge is invalid. The Société Nautique de Genève (SNG)/Alinghi argument is that an error on the GGYC boat certificate forces the club to turn up with a 90 foot wide mono-hull, and that the boat would be so unseaworthy as to be unfit for the race course, thus invalidating Oracle’s challenge. Or something like that. Next thing we know, Schnackenburg appears on the Alinghi website discussing how little Rolf Vrolijk (Alinghi’s head designer) knows about the sailing barges of his Dutch homeland, and how this puts Alinghi at a disadvantage.

It’s a joke, Jim, but not as we know it.

Exhibit 2

Posted on the BYM website, a story all about how the word ‘keel yacht’ can’t be applied to a multi-hull, despite the arguments of the GGYC, posted on their website. At least, I think that’s what it’s about as my eyes started to glaze over half way down…

Then came the day in court - January 14th you will recall was the day that Justice Cahn was going to make the order from the November decision in Oracle’s favour, which would give us a date for the next America’s Cup - a race between Oracle and Alinghi under the basic definitions of the Deed of Gift. A proper DoG fight. Or is it a cat fight? I know, it’s a dog fight between cats – as I said, it’s a looking glass world.

Not much happened in court, or rather a lot happened, but it got us no closer to a decision or a date for the match.

Exhibit 3

Posted on the GGYC website - their take on the court proceedings - they were happy that the Judge would soon sign an order to enforce the November decision and were pleased with the day.

Exhibit 4

Posted on the Alinghi website - their take on the court proceedings - they were happy that Justice Cahn had decided not to issue an order and were pleased with the day.

If there is any chance of sense on this matter, it resides in the writing of Cory Friedman, who continues to follow the case affidavit by memo of law for Scuttlebutt, with Part 12 posted before the January 14th court date. So far, Friedman’s writings on the matter have been a model of clarity and precision, even for us legal laymen. But such are the arcane details of this case that even he is now struggling to make it seem straightforward. But, on your behalf, I persisted with stuff like…

‘On or after the settlement date, now effectively January 14, 2008, Justice Cahn will enter an Order. Until he does so, there is no order to affect. Indeed CPLR 2221(d)(3) mandates that a motion to reargue “shall” [mandatory] be made within 30 days after the order in question is entered and served with notice of entry.’

Now, you would think that the issuing of an order is a kind of digital, one or zero, issued or not-issued sort of event. But no, it looks like we're in a grey, statistical world of order issuing a la Schrödinger's cat, with the state of the order depending on some quantum mechanical uncertainty - which is doubtless only right and proper in this looking glass Cup.

Anyway, essentially Friedman dismisses the SNG/Alinghi case in Part 12, not least because Hamish Ross (Alinghi’s general counsel) previously swore to the court, (supported by Fred Meyer, SNG Vice commodore) that the 90 by 90 foot boat in GGYC’s challenge could only be a multi-hull. So it’s tough for them to turn around now and say it sounds like an unseaworthy mono-hull. Friedman states, if this was a trial, counsel’s next question would be, ‘Were you lying then, or are you lying now?’

It makes the whole ‘keel yacht’ (or bargegate, if you like) issue moot, and Friedman reaches the conclusion – as this blog has previously - that the whole thing is just about delaying the sailing part of the game until Alinghi can catch up with Oracle’s headstart on multi-hull design.

Remember how one of the primary reasons this whole thing kicked off in the first place was because Alinghi had introduced a new boat for the next Cup, without any prior discussion with the Challengers, and was perceived to have got an advantage in the design race by doing so?

What goes around, comes around, even in the looking glass world.

Friedman then went to court to watch events on January 14th, and came back and posted Part 13 for us afterwards. And yes, the number does seem significant, as things have moved onto another plane of complexity, with different issues now before the court. But as I understand it, it works like this…

The issue of whether GGYC is a proper challenger (based on SNG’s arguments about the invalid boat certificate – bargegate – and others) will be heard on the 23rd January.

Then, if GGYC is still the challenger after that hearing (i.e. SNG lose on the 23rd), the court hearing to sort out the order pending from the November decision in GGYC’s favour (which should tell us when the Cup match will be) will be held on the 28th January.

After that, whatever the order says, SNG will appeal it anyway, and the whole thing gets carted off to the Appellate Division, where we all 'return to go' and the only people who 'collect £200' (or the equivalent) are the lawyers, anyone still on a salary at Oracle and Alinghi, and those who scored a retainer from any of the challenging teams that still have the money to pay them.

In the meantime, Alinghi get to work on sailing cats, while officialdom in Valencia is losing patience with the whole affair (much like the rest of us) and want their port back. Given that no teams, except Oracle and Alinghi, are likely to be sailing out of their bases in the short to medium term this seems entirely reasonable.

And finally (which seems appropriate in the week that News at Ten returned to British tv screens), it appears that Barry Ostrager, SNG’s new lead counsel, was… ‘lead trial counsel for Swiss Re in the highly publicized insurance coverage dispute involving the World Trade Center tragedy, which resulted in a unanimous jury verdict in favor of Swiss Re.’

So the man that litigated and won the insurance claims from 9/11 is now spending his (doubtless incredibly expensive) time, sorting out a sailboat race…

It’s a looking glass world.

But I’ll leave you with the positive note that Friedman strikes in his final ‘graf, after pointing out that Ostrager doesn’t believe the case should be in court, and knows the kind of top class mediator’s that might just bring Bertarelli and Ellison to a resolution…

‘A change of counsel can often have a positive effect on a case. Picking up the phone is a major change. Coming in after a loss on summary judgment, new counsel has to be candid with the client about how deep the hole they are in really is, if for no reason other than self-preservation. New counsel is also free from blame for the existing situation. New counsel is thus in a much better position to advocate for a reasonable approach to settlement. Of course, first he or she has to fight like hell to claw back into the race and bank some credibility with the client. Having bested Herb Wachtell in the mammoth World Trade Center Insurance Litigation, Barry Ostrager had the clout to get this gig and has the skills and resources to litigate for a long time, if he can convince the Appellate Division to grant him a stay of the order Justice Cahn will enter. That is not by any means a gimme. He also has the clout to get it resolved. The jury is out and we shall see how it unfolds.’

We can only live in hope. And if not hope, then that bit about Ostrager being able to litigate for a long time means it might be time to start looking for something else to write about...


Mark Chisnell ©