Team Seacats

The America’s Cup teams (both sides) have capsized Volvo 40′s in the last two weeks. Here’s a video of Alingi flipping this morning in Europe…it’s a steep learning curve to go to one of these boats in conditions as gusty as seen in this video! The Holmatro boat almost went over too but they seemed to get the bow up just in time before the foils in the water, typically known as “rudders”, became “elevators”.

So here’s where we are with the America’s Cup. Alinghi has filed for an appeal on the entirety of Justice Cahn’s rulings to date and asked for an expedited hearing. They got the expedited hearing and it’s scheduled to happen on June 5th. BMW/Oracle filed to have the whole thing tossed – we’ll hear more about that on June 5th but the word on the street is that Alinghi has very little chance of success with the appeal.

Meanwhile, we’re still waiting for Cahn’s ruling regarding the date of the event. One would presume that he has delayed his ruling due to the appeal filed by Alinghi – which could potentially negate anything he has to say (so why bother?). His ruling could come out any day but don’t hold your breath.

Across the pond, Alinghi has announced that they have begun design of their DoG boat and will be ready for a May 2009 event…as if repeating 2009 will magically make the October 2008 date go away. That’s the nutshell.

Not only before “the ink dried” but before the pen even hit the paper, Alinghi files for appeal on the whole shebang today with the New York Supreme Court. From Alinghi’s website, Lucien Masmejan (SNG lead counsel), explains their latest maneuver…I’ve dissected it a little inserting my own commentary:

Why have you appealed?
Our goal is to have it decided on the water and have a competitive America’s Cup in 2009.

Cough, cough, Gaggg…huh? Seriously? Let’s roll through this briefly; I paraphrase; we filed for appeal asking for a stay (delay) so we can compete on the water, not sooner, in 2009. What’s wrong with 2008? Besides, your rights as a challenger are very clear – you can’t touch the date! You pick the place…focus here…please focus…we’re waiting for the place, not the date.

We are in the process of appealing and filing a motion to request an expedited appeal and to stay the case in order to attempt to fast track the legal process.

Here’s an idea; fast track it by NOT FILING APPEALS and specify the place for the event!

We have spent eight months engaged at trial court fighting a law suit brought by GGYC to force their way to the America’s Cup Match at the expense of 12 other challengers.

Ummm…no – actually GGYC tried several times to find an agreement with you that would INCLUDE the other challengers…and wait a minute – 12? Who ever said there were 12?

Justice Cahn’s order dated 17 March 2008 left key elements unanswered, including the dates for the event. Since then, we had a hearing with Justice Cahn but we still have no certainty as to the ruling. We are now less than 3 months from the dates indicated in the original GGYC challenge and we still do not know when the 10 months notice has started and which will be their boat.

Actually you do have a date as was stipulated in the official challenge by GGYC – YOU contended that date in court and YOU are the reason we are waiting for a ruling regarding the date. Establishing a date is not the responsibility of the court – they just interpret the deed and the law and apply it to the situation.

In that respect, the Challenge submitted by GGYC on 11 July 2007 does not supply the information prescribed in the Deed of Gift and is not only ambiguous but also contradictory in places. GGYC are now tactically withholding the custom-house registry and vital technical information regarding the boat that they will challenge with from the defender. This tactic is against the terms of the Deed of Gift and most certainly in contrast with the intentions of George Schuyler.

The Deed leaves a bit to be desired in this area – as well as another area, in my opinion, Alinghi is guilty of exploiting. The Deed does not explicitly specify WHEN the registry of the challenging vessel needs to be presented and it also doesn’t specify explicitly WHEN the location needs to be announced by the Defender…and we’re still waiting on that piece of information too….seeing as GGYC doesn’t know the location of the event, it’s kinda hard for them to finalize the technical details of their vessel (are we racing in the Southern Ocean or the shifty calm of something near the equator?). It’s pretty clear that the wording of the Deed assumed that a defense mounted by a club would be done so in their home waters. Given that it was written in the 1800s, it also does not take into account that we can fly boats to any location in the world in a matter of days nor does it consider that there would be a defender from a landlocked country.

There’s about 70 pages of the official appeal documentation on the GGYC website. While I’m certain there are loads of golden nuggets in there, I’m going to sit back and wait for the legal analysts to dissect this one. Tomorrow’s news should be interesting.

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.

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