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Member Since 23 Apr 2009
Offline Last Active Aug 23 2009 06:12 AM

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Gladwells Line - Golden Gate off beam with Defender claim?

23 May 2009 - 02:42 PM

Gladwell's Line: Golden Gate off beam with Defender claim?

Golden Gate Yacht Club would seem to have made a rare error in their almost two year long battle with the America's Cup Defender, Societe Nautique de Geneve.

In their letter to the Defender, dated 20 May 2009, GGYC stated:

'We assert that the Deed does not permit you to race a two-masted yacht, given that our Challenge Certificate describes a single-masted yacht.'

It is widely believed that the Defender is indeed intending to respond with a multihull yacht of the maximum dimensions permitted under the Deed of Gift.

Those are for a yacht that is two masted and 115ft on the Load Water Line.

The craft nominated in the Notice of Challenge by GGYC, was for a 90ft LWL yacht with a single mast.

It is believed that the logic behind GGYC's assertion in their letter stems from the wording in the Deed of Gift which states:

'The competing yachts or vessels, if of one mast, shall be not less than forty-four feet nor more than ninety feet on the load water-line; if of more than one mast they shall be not less than eighty feet nor more than one hundred and fifteen feet on the load water-line.'

GGYC believe that because the Deed talks about yachts in a plural sense, that by definition because they have nominated a single masted yacht as their challenger, then SNG must match her with a single masted yacht - meaning that her length would be restricted to 90ft LWL.

However that view would appear to be in conflict with the Appeal Court of New York Decision handed down in the case of Mercury Bay BC which dealt at length with the types of yachts that could be used by the Defender to respond to a Challenge in a Deed of Gift Match.

The following (not consecutive) extracts from that Decision do not support the view expressed by Golden Gate in their letter of 20 May:

Although the defending club, as holder of the Cup, is its trustee, it is nevertheless required to compete with challengers for the Cup. Nothing in the deed limits the design of the defending club's vessel other than the length on water-line limits applicable to all competing vessels, nor are the competing vessels expressly limited to monohulls. Moreover, there is no requirement that the defending vessel have the same [*262] number of hulls as the challenging vessel, or even that the competing vessels be substantially similar.

In reversing Supreme Court, the Appellate Division concluded that the Deed of Gift unambiguously permitted matches between 'yacht[s] or vessel[s]' meeting the length specifications articulated within the deed, that San Diego's catamaran was an eligible vessel, and therefore that San Diego is the rightful holder of the America's Cup. Mercury Bay appeals by leave of the Appellate Division.

Contrary to Mercury Bay's contentions, nowhere in the Deed of Gift have the donors expressed an intention to prohibit the use of multihull vessels or to require the defender of the Cup to race a vessel of the same type as the vessel to be used by the challenger. In fact, the unambiguous language of the deed is to the contrary. The deed accords a foreign yacht club 'the right of sailing a match for [the America's] Cup, with a yacht or vessel propelled by sails only and constructed in the country to which the Challenging Club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup' (emphasis added). Given its plain and natural meaning, the phrase 'any one yacht or vessel' requires the defender to defend in a single vessel of any type. If, as the dissenters argue, the term 'any' was intended to mean 'one', in the sense of limiting the defender to a defense in a single vessel (dissenting opn, at 286), the term would be redundant, since the very next word in the phrase so limits the defense to 'one' vessel. By limiting the defense to a single vessel, the deed ensures a 'match' which will be a one-on-one competition. In this match, however, the deed expressly permits a defense by any type of yacht or vessel, and restricts the actual vessels to be used only by the length on load water-line restrictions applicable to all 'competing vessels', the latter phrase again making clear the donors' intention to leave both the defender's and the challenger's choice of vessel otherwise unrestricted.

we conclude that the unambiguous language of the Deed of Gift, permitting the defending club to defend the Cup in 'any one yacht or vessel' within the specified range of load water-line length, does not require the defender to race a vessel of the same type or 'evenly matched' to that of the challenger and does not preclude the defender's use of a catamaran. Because the deed provisions on [*270] these issues are unambiguous, we may not look beyond the four corners of the deed in ascertaining the donors' intent and therefore may not consider any extrinsic evidence on the meaning of these provisions.

The full decision in ythe case of Mercury Bay can be viewed by clicking here

While the focus of the case is obviously on whether the defender can respond with a catamaran in response to a Deed of Gift Challenge in a monohull, and in the absence of Mutual Consent, the same arguments can be mounted to argue that a Defender is entitled to respond with a two masted yacht when challenged with a single masted yacht.

If the matter was to be taken to further litigation, by Golden Gate YC it would be likely that this would occur after the Match, due to the fact that under the terms of a Deed of Gift Match, the Defender does not need to name its yacht until the day of the Match (and can't change yachts during a Match).

However there are other issues with using a two masted vessel, and it is by no means certain that SNG/Alinghi have chosen this option for their Defending yacht.

by Richard Gladwell 12:59 PM Sat 23 May 2009