Commentary- Blame the NY court system for Cup's legal malaise

by Damian Christie on 30 Sep 2009
The America’s Cup is in a legal deadlock now not just because of the intransigence of its Swiss masters and the American challenger, but also because of the erroneous rulings that the New York court system made two decades ago on the outcome of the 1988 catamaran/big boat mismatch.

It has always been my opinion that Judge Ciparick got it absolutely right in her March 1989 ruling that proposed disqualifying the San Diego Yacht Club for its use of a catamaran against New Zealand’s monohull challenger in the Cup match. On that occasion she ruled that a broad reading of the notice of challenge provision in the Deed of Gift strongly indicated that the Cup donor had intended that the defending yacht would relate in some way to the challenger’s specifications, and therefore the boats would be similar and, as she put it, 'somewhat evenly matched'. Notwithstanding the fact that the Deed uses no express language to promulgate that the competing boats must be alike, it is ridiculous to assume that this would not have been George Schuyler’s intention.

Mr Schuyler himself confirmed as much when he spoke about the third drafting of the Deed in the interview he gave to the New York Times in May 1890: 'The main reason we ask for the load waterline length, draught of water, beam at the waterline and extreme beam is to know what kind of a vessel we have to meet. I believe the challenged party has a right to know what the yacht challenging is like, so it can meet her with a yacht of its own type if it is so desired.'
The fact that the Deed explicitly specifies that the challenger’s 'dimensions shall not be exceeded' is consistent with Mr Schuyler’s comments – it was always his intention that the defender would build a comparable yacht to the challenger (ie of similar size and dimensions, such as the prominent sailing boats of the time such as cutters and schooners), thereby securing a fair contest.

It would also give the defender recourse to disqualify the challenger for exceeding the specified dimensions because it could argue it had built a boat to the notice of challenge specifications in good faith, eg if a challenger had nominated a LWL of 60 feet in its notice of challenge, the defender had built a yacht of 60 feet LWL but the challenger had turned up with a boat that was 90 feet LWL, then surely the New York Yacht Club would have had reasonable grounds to disqualify the challenger.

Even allowing for Mr Schuyler’s statements that 'we would be content to meet the challenger [whose LWL is 90 feet] with a boat four feet shorter' and that the defender would meet the challenger with a comparable yacht 'if it is so desired' (an unfortunate turn of phrase in my opinion that does not in any way imply his endorsement of a future catamaran defence!), it is both ridiculous and illogical for both the courts and Golden Gate Yacht Club and Société Nautique de Genève to conclude that it was his intention that the Cup could be contested by such radically different vessels, whether that be a catamaran vs a monohull or a catamaran vs a trimaran.

As Judge Ciparick concluded in her 1989 ruling, the notice of challenge provisions would be 'rendered meaningless' if the defender could respond with any yacht or vessel whose measurements did not relate to those of the challenger.
By that logic, for example, would it have mattered if in 1988 the KZ1 big boat had been ruled to be 92 feet LWL when the US catamaran was only 60 feet? How could that have been such a massive disadvantage for the defender when they were not even sailing (by choice) an identical, or inferior, boat?

Similarly, it is ludicrous for SNG to be arguing in its latest court submission that GGYC’s yacht must 'match' the dimensions in its notice of challenge – ie 90 feet LWL by 90 feet beam on load waterline- when its own yacht, also designed to the maximum LWL and BLW, is so radically different again. Even the way SNG is deviously proposing to measure the yachts (including rudders and other appendages in the LWL) is inconsistent with Mr Schuyler’s vision – it is likely another reason the challenging yacht’s dimensions were requested in advance was so there could be no confusion or illusion about the way in which the contesting yachts would be measured. Yet SNG is expecting GGYC’s yacht – a trimaran - to comply with a measurement system that is blatantly biased towards its catamaran.

The simple fact is that the New York court system got it wrong two decades ago when it upheld the outcome of the 1988 Cup defence – and both the America’s Cup and sailing in general are paying the price for it today. The New York court today is required to abide by an erroneous precedent that has merely opened up a legal can of worms for SNG and GGYC’s lawyers to exploit. The language in the Deed of Gift is quite simple and logical in a broad reading (especially when you consider the historical factors behind some of the clauses), yet the New York courts’ insistence on a literal interpretation of the Deed has meant that the lawyers of both parties have sought to stretch some of its more ambiguous statements (eg 'having', 'exceeded') beyond credulity.

Damian Christie, Melbourne, Australia