11:25 PM Sat 3 Oct 2009 GMT
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'Alinghi 5 soon to be sailing at Ras al-Khaimah (UAE)'
Monsta
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Just hours after Alinghi 5 was unloaded from a freighter in the United Arab Emirates state of Ras al Khaimah, the Challenger for the 33rd America's Cup was filing papers in the New York Supreme Court contesting the venue selected by the Defender.
For what was its shop window event, the sailing world now has a tragicomedy.
Currently two show-stopping legal actions are underway in the New York Supreme Court. The venue of the Match and the Rules under which it will be conducted.
A third, alleging breach of fiduciary duty by the Defender is believed to be imminent. That was signaled by CEO Russell Coutts in a statement released by the Challenger which said: 'The choice of RAK underscores SNG's abject failure in its responsibilities as Trustee of the America's Cup. It seems that the Defender is prepared to go to any lengths to make this America's Cup a travesty.'
While the Defender, Societe Nautique de Geneve is quick to claim that the Challenger, Golden Gate Yacht Club is trying to win the America's Cup in the Courts, rather than on the water. The fact of the matter is that the legal traffic is pretty well all one way. Of the six or so decisions that have been handed down from the New York judicial system, only one has gone the way of the hapless Swiss - and that was a majority decision which was overturned 6-0 by the Appeal Court in Albany NY.
That is not a good look.
When a club wins the America's Cup, it assumes two roles. Firstly it is the Defender of the trophy for the next match. As the Cup is a Challenger trophy it is open to the any yacht club in the world who fits a few basic tests prescribed in the Deed of Gift under which the trophy is donated, to issue a Challenge in naming a yacht in which they wish to sail, and they set the date for the match - at least ten months hence.
The other role the winning club assumes is that of Trustee of the America's Cup. This role is prescribed in the penultimate clause of the Deed of Gift and effectively stands it in the shoes of the previous holder, in a lineage back to the original donor, and agrees that the new holder/AC Trustee will assign the trophy to a new winner under the same terms and conditions of the deed of Gift.
The current Trustee, Societe Nautique de Geneve, signed such an agreement with the previous Defender and Trustee, the Royal New Zealand Yacht Squadron in 2003. The contents of that agreement are not known they would no doubt be similar to the previous transfers between New York YC, the original Defender and Trustee and the Royal Perth YC, who in turn transferred to San Diego YC in February 1987.
There is nothing in the Deed which talks about standards of conduct expected of the Trustee, or how the Match should be organized, save for the terms of a match where Mutual Consent does not apply.
If such an action were to be launched, then it would fall to Golden Gate YC's uber-lawyer, David Boies to stretch the skin tight over the Fiduciary Responsibility drum, and then beat a tune for Justice Shirley Kornreich. In this regard, Fudicial Duty refers to a person or trustee who holds a position of trust and is expected to act for that person, or trust's benefit.
For its part, Societe Nautqiue de Geneve will argue that it has done nothing wrong under the Deed of Gift; taken no advantage that was not properly conferred; and has acted in a similar fashion to the New York Yacht Club in the period leading up to 1983, and also the San Diego Yacht Club, when faced with a hostile, Deed of Gift, challenge from Mercury Bay Boating Club in 1987-1991.
Such action on this legal front, with the America's Cup, would be unprecedented.
The sailing world is now treated to the ludicrous sight of the defending Swiss yacht club, now in the Middle East preparing for the America's Cup Match. An event which by rights should have taken place in its own waters.
The Challenger, meanwhile is 7,500nm away in West Coast, USA, arguing for another venue and proper rules in Courts on the East Coast, USA; and the so-called controlling body of the sport, the International Sailing Federation, seems powerless to intervene.
A similar situation threatened in Formula 1 Motor Racing, and lasted less than 24 hours before the parties went behind closed doors and reached an agreement with their word body, the FIA.
While sailors weep, at a situation which could have several more years to run in the Courts, the rest of the sporting world dismisses the America's Cup with a mix of derision and opprobrium. And rightly so.
by Richard Gladwell
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