Team Seacats

9:30am, April 2nd, Justice Cahn will hear arguments from SNG and GGYC about the coming date of the cup. A lot of slop has since been tossed around by Alinghi in the last day or so and through an article on BYM news goes so far as to begin to hint that there may be an American conspiracy around the cup and the courts dating back to 1987. I’m beginning to be more and more suspicious of anything I read on that site anymore – which is disappointing because it’s such a rich site. That particular article doesn’t even reference an author other than “Alinghi”.

ANNNNyway, so Alinghi claims that Ehman has “changed his tack” from the 1987 case where tolling (suspending) the notice period took place while the court case was settled (while the American Team was on the ropes) but now is arguing against tolling. What they fail to mention is that during one of the many attempts to negotiate by GGYC, a tolling agreement WAS presented to Alinghi but they turned it down. Cory E. Friedman, who is providing some legal insight to the case on Sailing Scuttlebutt.com had this to say about the tolling agreement that was on the table but never agreed to by Alinghi – which was a HUGE blunder on their part.

From the article by Cory E. Friedman on Sailing Scuttlebutt:

Obviously, both parties thought they would have a tolling agreement, (although it is much more important to defendant SNG, which does not want the Match to happen), and Jim Kearney, GGYC’s lawyer at Latham & Watkins, sent David Hille, SNG’s lawyer at White & Case, a proposed stipulation. In an outbreak of “irrational exuberance,” Kearney even signed the proposed stipulation and referred in his cover letter to “the tolling agreement agreed to before Justice Cahn at the September 10, 2007 hearing.” Indeed, the proposed stipulation was extremely generous – perhaps too generous — as it tolled the Match until 10 months after all litigation was completed, including appeals to the Appellate Division and the Court of Appeals. Thus, it could easily have tolled the Match for years if SNG decided to drag its feet.

Amazingly, SNG declined to sign and file the stipulation and sent back a counter offer unjustifiably demanding more than just maintenance of the status quo. Negotiations broke down and nothing was agreed. Every law student is taught in first year Contracts class that, except for sales of goods under the Uniform Commercial Code, a counter offer acts as a rejection of the offer to which it responds. Thus, not only had the parties not agreed, but, by making a counter offer, SNG had rejected the offered stipulation. (Just goes to show that legal education is about as effective as sex ed is.) Thanks to overreaching that could only have come from the client, rather than the lawyers, SNG, the party that needed the toll the most, was now going bare, as it will be on April 2, 2008 at 9:30 am. It probably seemed like a good idea at the time.

Also of note, if you’ve been living under a rock for the last couple of days (still worth noting), while training onboard the Foncia 60 foot ORMA class trimaran outside of Lorient, France, the Alinghi team capsized while bearing away (turning through the wind to go downwind…as if rounding a windward mark). Winning Alinghi helmsman and American, Ed Baird, was at the helm at the time. Two sailors were airlifted to a local hospital with reportedly “minor injuries” while the boat suffered a broken mast and broken rear beam. This happening brings up a lot of questions; mainly, are a bunch of sailors who are used to having 50,000lbs of lead under them up to the task of racing an overpowered super-light multihull in a short 10 months? I bet this capsize will also make them wonder this same question and they start hiring some high-end multi-hull skippers.

PS – watch out for the April Fool’s articles tomorrow…this tradition is starting to get boring.

Thanks to Erez over at Catsailor - here’s a little hull flying action from a fun day / relay racing in Israel (Tel Aviv?). I’ve been there on business – what a wonderful place to sail.

Vincenzo Onorato of the Mascalzone Latino (the previous Italian Team) issued a very powerful letter this morning about the status of the America’s Cup and provides some pretty damning insight to the dealings with Alinghi – I’ve only just now had some time to read it. Alinghi once used the fact that Mascalzone Latino had signed up for the 33rd protocol as evidence that their protocol was fair and just. Vincenzo explains that this is pretty far from the truth because they had only signed up due to word of a 2nd Italian challenge starting up. They wanted to ensure that they were not denied a position in the event by Alinghi if there was another Italian Challenge. Vincenzo also goes into some detail about how their challenge was accepted in consideration of the declaration they had filed with the New York Courts as part of Oracle’s stance. Vincenzo strikes me as one cool, very thoughtful, and sharp dude.

Since the start of this letter, I have given Alinghi credit for the fact that the affair has an underlying sense of comedy, although this is probably unintentional. Following the launch of the challenge, ACM sent us an invoice for fifty thousand euros which we paid immediately. Are we perhaps the only ones to have done so to date? They replied in writing that they would accept our challenge only if we withdrew our declaration filed with the Supreme Court of New York. This is not required by the protocol, but it is clear that Alinghi writes and rewrites the rules to suit its needs. I answered by reminding them that a citizen accepts the laws even if he doesn’t agree with them and that in a democracy there is freedom of speech and criticism. The simple metaphor was not understood. ACM/Alinghi replied by claiming a public abjuration. It would have been pointless to remind them that the last Italian forced to make such a strong retraction was Giordano Bruno, in medieval times under the Holy Inquisition.

Read the entire letter at BYM News

While I had hoped to be able to announce yesterday that a date has been set for the America’s Cup match on monster 90 foot multi-hulls, it didn’t happen. Alinghi/SNG claims that OracleGGYC came to the table with no willingness to budge on the date – Oracle isn’t saying much at all other than they don’t “wish to disclose details of the discussion at this stage.” Alinghi filed for a hearing again with Justice Cahn for a ruling – obviously hoping to move the date due to the delays caused by the court hearings. GGYC pleaded the court for a quick hearing. Cahn delivers and, this afternoon, granted the hearing date for next week to hear arguments (but as in the past, there’s no guarantee for the delivery of a ruling).

Here’s the bit of the Deed of Gift language in dispute;

…The Challenging Club shall give ten months’ notice, in writing, naming the days for the proposed races; but no race shall be sailed in the days intervening between November 1st and May 1st…

It certainly doesn’t say what to do in the event the match is contested in court but it clearly says “The Challenging Club shall give ten month’s notice…”. GGYC did give ten months (actually 12 months) notice with their challenge. GGYC first filed motion that SNG has accepted an invalid challenge and that theirs should be the valid one. That was ruled on by Cahn making GGYC the official challenger based on their challenge. SNG then filed back to the courts disputing the validity of the same challenge because it included the phrase “keel yacht”. The Court dismissed this claim and again pronounced the GGYC challenge as the official one. The only official challenge is the challenge filed by GGYC in October….and it had the minimum 10 month challenge in it. I really don’t see how Alinghi is going to get out of this…even more so than the last motion they filed with the court.

The request for hearing to Justice Cahn issued by SNG/Alinghi’s legal team REALLY struck me as arrogant and bound to fail. In it, they dispute every ruling the Cahn has previously made in this case but then plead for more time to prepare for the match. They also hollowly claim that the Deed of Gift “Requires the Defender be Allowed No Less than 10 Months to Prepare for the Match”…read the verbiage from the actual deed in the above quote again and see if you agree with me that that is not even close to the the context provided in the wording of the Deed. Read Alinghi’s letter for yourself and decide. Hopefully this shouldn’t take long to hear from Cahn this time.