Friday, January 9, 2009

New York Yacht Club nails colours to mast

Source The New Zealand Herald:
Club weighs in on America's Cup dispute to support BMW Oracle, says Mike Rose

In a move that has surprised even experienced America's Cup watchers, the New York Yacht Club has filed an amicus curiae ("friend of the court'') brief with the Appeal Court in New York, supporting the arguments of the Golden Gate Yacht Club.

San Francisco-based Golden Gate is the club under which Larry Ellison's BMW Oracle races. It successfully challenged, in the New York Supreme Court, the validity of the Spanish Club Nautico Espanol de Vela (CNEV), which is the current Challenger of Record. That decision was, however, overturned by the Court's Appellate Division and now Golden Gate is, in turn, appealing that decision.

While other yacht clubs, notably lesser-known entities who have signed on with Societe Nautique de Geneve (SNG) and Alinghi for the next America's Cup in Valencia, have also filed amicus curiae briefs (not surprisingly supporting the current defender), the filing from New York is in a whole different class.

For a start, the New York Yacht Club is not an interested party in any of the proposed America's Cup races (either Alinghi's proposed multi-challenger event or BMW Oracle's head to head battle in giant multihulls).

Perhaps even more importantly, the New York Yacht Club was the holder of the America's Cup for 132 years (from 1851 to 1983). It is, therefore, often regarded as the ``bastion'' of the America's Cup, even in times, like the present, when it is not actually a participant.

Perhaps as surprising as the filing is the strength of the club's arguments.

Although it has, until now, remained largely silent on the ongoing courtroom dramas, its brief leaves absolutely no doubt about its support for the arguments advanced by Golden Gate. This is in stark contrast to the brief filed by SNG's lawyers, which implied that the New York club supported the defender's position.

Urging the court to reverse the decision of the Appellate Division, the brief asks the judges to hold that the challenge submitted by CNEV was invalid under the Deed of Gift governing the America's Cup and that CNEV is, therefore, ineligible to act as the Challenger of Record in the 33rd America's Cup.

It is a strongly worded condemnation of the appointment of CNEV as challenger and experienced America's Cup commentators are predicting it could weigh heavily on the court.

The decision to overturn the original ruling, which was in favour of Golden Gate, was close. The Appellate Division of the New York Supreme Court ruled in SNG's favour by a 3-2 majority, with the court's two most senior members dissenting from the majority decision.

As well as weighing all the other arguments, the Appeal Court of New York will now have to decide whether it can overlook the view of a club of such standing.

The full hearing of the appeal will be on February 10, with a decision expected in late March or early April. This decision will be final as no further appeals are allowed.