Team Seacats

The dust around the America’s Cup litigation, stirred by the recent judgement from the New York Courts in favor of the American / GGYC team, is starting to settle enough to see some options in the near future.  One of a few things are going to happen; 1) GGYC and SNG negotiate an agreeable multiple challenger series in the near future 2) GGYC and SNG act like their negotiating an agreeable multiple challenger series but only to a means for delay (on the part of SNG) and on some minor irreconcilable difference we end up in a one on one DoG fight or 3) SNG refuses to come to the table and we immediately start court proceedings to get SNG to provide the information needed for a race.

Which one will happen?  I think SNG is strapped for cash and might actually be in favor of a cost controled multiple challenger event.  However, it’s hard to tell how much of the chest pounding proclomations were all for show, or how much was heart-felt leading up to the final court decision.   I think it all boils down to whether or not SNG believes that they can pull off a competitive boat to meet GGYC.  They’ve already seen a vision of their monster – though nobody has actually made the claim that this is the official challenge yacht of GGYC.

Both parties have now made a pretty vanilla statements – GGYC taking the high road stating simply that they are talking but will not be public about any of the talks in the hopes of reaching a quick “conclusion”.  I don’t like picking at words, but using “conclusion” instead of something like “agreement” probably speaks volumes.

BMW / Oracle / GGYC wins the appeal and are now the official challenger of record! More details and analysis soon.  The ruling by the judges was a unanimous 6-0 – that’s solid.

We could possibly have a final, final, final ruling from the New York State Court of Appeals today with regards to the America’s Cup….stay tuned.

The Appellate Division of the New York court system shocked the sailing community yesterday with a complete reversal of the America’s Cup case of GGYC (BMW/Oracle) vs. SNG (Alinghi). In a nutshell, three out of the five judges deemed that Justice Cahn’s ruling to date were null and void and reinstated CNEV (Spain) back in as the official Challenger of Record (COR). Nobody was ready for this ruling and I don’t believe that CNEV, the yacht club, technically exists anymore after they disconnected their phone, removed their board of directors, and admitted they were a legal adjustment put in place just for the America’s Cup.

The judges went back to the word “having” and determined that in this sentence from the Deed of Gift (DoG) that the wording is ambiguous and does not necessarily mean that the club must have already had regattas as Justice Cahn had determined. Because it was deemed ambiguous, they went back to precedent and determined that clubs that did not meet this requirement were allowed to compete in years past in the challenger series – Alinghi is one of them. Alinghi has never been the official Challenger of Record but competed in, and won, the challenger series and beat New Zealand in the finals several years ago.

Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match of this Cup…

The dust is still settling from the surprising result and while some commentary I’ve read questioned the ability of the judges to make some of the leaps they did, the fact that two of the three judges strongly dissented the ruling automatically gives BMW/Oracle the right to appeal the decision. The BMW camp is “evaluating their options” at the moment and Alinghi is touting justification of everything to date. It’s undoubtedly a black eye for BMW but I do think we’ll see them file a strong appeal. Rumour has it that their DoG Monster catamaran/trimaran is mostly ready for launch…but now it has no event….for the moment….

The New York Supreme Court held the hearing of appeal from SNG yesterday and we should hear a ruling pretty soon. The motion by SNG (Alinghi) is to, basically, appeal everything Justice Cahn has had to say about the case; whether CNEV was a valid challenger, the definition of the challenging yacht (regarding the words “keel yacht” in the challenge), and lastly the date of the event.

According to Cory E. Friedman, who is providing some great commentary on the specifics over at Sailing Scuttlebutt, there was a great deal of pressure placed on SNG’s lawyer, Barry Ostrager, by the Appellate Panel. As Mr. Friedman puts it, “…the bench, which was not just hot, but red hot, lit into him from the start.” The questions came fast and furious of Mr. Ostrager and he was not given much time to respond. By contrast, the representation for GGYC, Jim Kearney, had it easy as the questions came with little pressure and plenty of time to respond.

So what does all this mean? 80% of the time the Appellate panel upholds the previous judgements. Their questioning certainly wasn’t very kind to the SNG position and they did inquire of both sides why arbitration failed (which, in my opinion, really hurts the case of SNG since they refused arbitration on several occasions). It’s very likely we’ll see all of the decisions upheld with perhaps an exception to the date issue. GGYC made an argument that the date of the event should be sooner and the Panel does have the option of modifying the ruling. Mr. Friedman believes that there is a small chance that the date of the event may be moved up 6 weeks to May 1, 2009 and that we should have a ruling sometime later this month.