The America's Cup Files- Transcript of the NY Supreme Court Hearing

New York State Supreme Court, 60 Centre St, New York, by John Rousmaniere Event Media

James Kearney for GGYC makes a point at the New York Supreme Court Hearing © George Layton

MR. KEARNEY (Golden Gate Yacht Club): They can't, in essence, appeal again the judgment order that they already appealed all the way up to Albany, which is exactly what is happening here.

They're coming back and asking for a do-over, let's do a do-over. Let's try these arguments again.

THE COURT: By the same token, the two of you can decide and determine when the race should be. It can be changed, that date can be changed, on consent, can it not?

MR. KEARNEY: That's exactly right. The two of us can. But here's the rub, your Honor.

THE COURT: What is the rub there?

MR. KEARNEY: You must understand -- and that's what it is. It is what it is. If you look -- and it comes from their April 23 letter to us, which is in my affirmation on 007, in exhibit D, your Honor, their April 23 letter.

THE COURT: April of which year?

MR. KEARNEY: April 23 of '09. This is what constitutes the contempt. Here's what they say --

THE COURT: You're saying it's going to be in May, but there had been negotiations, there had been talks prior to that. Let me ask you one other thing: Is the race -- are you committed to a multi-hull vessel?

MR. KEARNEY: We would enter our discussions and --

THE COURT: I'd like to know. I'm asking you right now, is there a commitment to a multi-hull vessel?

MR. KEARNEY: We, Golden Gate --

THE COURT: I think that's a yes-or-no. It just seems to me that -- it appears to me that the vessel -- I know that there's been the challenge, and looking at the letters, continuously in the past the Golden Gate stated they've already applied to the Navy for a tonnage certificate and also for what's required. Now, I've forgotten what it's called.

MR. KEARNEY: A custom house registry.

THE COURT: That's right.

MR. KEARNEY: Or a certificate of documentation.

THE COURT: That's right, CHR, as it was called, that you've already applied for this, and now you've changed your position and said we've taken the vessel apart, even though there have been trials on this vessel, and which everybody assumed was the vessel you were going to race. It seems a little slick that, all of a sudden, this vessel has been taken apart.

MR. KEARNEY: Can I explain that.

THE COURT: Yes, I'd like to hear. And I'd like to hear why there has been an application and, all of a sudden, there is no application.

MR. KEARNEY: An application?

THE COURT: An application to the Navy and for the tonnage certificate. It seems to me that perhaps Golden Gate is playing fast and loose.

MR. KEARNEY: I'd like to explain that, if I can.

THE COURT: Yes, I'd like to hear, but you still haven't answered my question. Is it going to be multi-hulled or not?

MR. KEARNEY: Here's the answer: We have consistently said that we would prefer a conventional America's Cup on mono-hulls with multiple challengers. We have consistently said that. After we won the Court of Appeals, we sent a letter to SNG, saying we would like to meet with them to discuss exactly that. We wanted a multi-challenger mono-hull race, not with the multi-hulls, okay?

The lawyers line up yet again in the New York Supreme Court Hearing © George Layton

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Alinghi’s Barry Ostrager makes a point at the New York Supreme Court Hearing © George Layton

MR. OSTRAGER (Societe Nautique de Geneve): Good morning, your Honor, and thank you. I think premature and slick would fairly characterize the behavior of GGYC in making the application for contempt that they made to your Honor, as your Honor clearly knows from carefully reviewing the record.

THE COURT: I don't think their application was premature, frankly. I don't believe I have much authority beyond what the Court of Appeals has directed unless you both come to terms with regard to the date.

MR. OSTRAGER: Well, to be perfectly clear, there were almost a full year of proceedings before Justice Cahn. Justice Cahn ultimately issued an order. The order that Justice Cahn issued reads as follows: Quote 'Ordered that the location of the match shall be in Valencia, Spain or any location selected by SNG, provided SNG notifies GGYC in writing not less than six months in advance of the date set forth for the first challenge match race of the location it has selected for the challenge match race, and it is further ordered that GGYC and SNG may engage in a mutual consent process and make any arrangements satisfactory to both as to the dates, courses, number of trials, rules and sailing regulations and any other conditions on the challenge match race in accordance with the deed of gift.' Now, that order is entered on May 12. As of May 12 GGYC was the challenger of record, and GGYC remained the challenger of record until the Appellate Division reversed Justice Cahn.

THE COURT: What possible authority do I have to change the date set by the Court of Appeals?

MR. OSTRAGER: The long and the short of this is you have Mr. Masmejan's affidavit. He is seated next to me. He described a meeting that was had between SNG and GGYC last month. At the meeting there was absolutely no discussion with respect to race dates. SNG told GGYC that it was SNG's view that it would be best to have the race in May because these multi-hulled vessels go at three times the speed of wind and it's dangerous to the sailors to have a northern hemisphere race in February.

THE COURT: What about a southern hemisphere race?

MR. OSTRAGER: SNG is absolutely committed to a northern hemisphere race. There will be a northern hemisphere race. We thought we were going to have a discussion with them as to when that would be. We're going to have a northern hemisphere race. Whatever they agree to, wherever -- when they agree to it at such date they agree to it, as such date as the court directs, but we're going to have a northern hemisphere race.

The full transcript can be read by http://premium.fileden.com/premium/2006/7/3/105858/Transcript_GGYC-SNG_14-05-2009.pdf!clicking_here