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The AC 37 has started, news and rumours


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21 minutes ago, dg_sailingfan said:

I wonder in what universe this guy lives comparing the Apartheit in South Africa to current conditions in Saudi Arabia. Conditions in the Arabian Countries have changed quite a bit over the last 36 years or so.

Though you have to wonder when one of their top spooks defects to Canada and then calls his ex-boss a psychopath who ordered a journalist to be dismembered. 

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On Hamish Ross and the Discrimination Issue: This will be long, pedantic, and legal.  I apologize for the length; read at your own risk. Hamish Ross has recently claimed on multiple occasion

I’m not calling this out for the sake of ostracizing you, nor to play PC police on a forum that is notorious for the opposite of that. I could just hit ignore, delete or whatever. I’m calling this out

Hilarious to watch Kiwis who've been around since AC35 twist themselves into intellectual pretzels to give ETNZ a pass on what they screamed bloody murder about when Oracle did it. Even Oracle di

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14 minutes ago, Section 23 said:

Acceptance of a challenge does not enjoin the cause of action, but it does contribute to the validity of the claims.

You seem to be  implying that RNZYS violated their responsibilities as trustee either by:

failing to do due diligence as to the eligibility of a challenger (RYSL), or

knowingly accepting a challenge from a non-compliant entity (RYSL).

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4 minutes ago, accnick said:

You seem to be  implying that RNZYS violated their responsibilities as trustee either by:

failing to do due diligence as to the eligibility of a challenger (RYSL), or

knowingly accepting a challenge from a non-compliant entity (RYSL).

That will be short court case.

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25 minutes ago, porthos said:

As long as there is an accepted challenge by a valid challenger, no other club has any right under the Deed to participate in AC37. With no right to participate in AC37, every other club has a standing problem because there is no relief the court can provide to that club. 

If you throw out the notion of fiduciary duties, you are going to get Mercury Bay thrown back at you.

He may not be suing about anything related to the deed. If there’s one guy who knows where all the kiwi bones are buried, it’s Farmer.

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4 minutes ago, sunseeker said:

He may not be suing about anything related to the deed. If there’s one guy who knows where all the kiwi bones are buried, it’s Farmer.

Our mysterious new friend who intentionally (or maybe unintentionally) uses the passive voice referenced NY trust law, so I assume s/he/it is talking about the Deed. But maybe there is some claim that RNZYS violated some law in New Zealand. On that I would have no idea.

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1 minute ago, porthos said:

Our mysterious new friend who intentionally (or maybe unintentionally) uses the passive voice referenced NY trust law, so I assume s/he/it is talking about the Deed. But maybe there is some claim that RNZYS violated some law in New Zealand. On that I would have no idea.

I’m just enjoying all this potential kiwi on kiwi litigation, where ever it happens. 

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About all this potential kiwi litigation from the likes of Squeamish Ross I’m reminded of a saying a former America’s Cup tactician uses to describe kiwis, Keenly Interested Without Intelligence.

Ultimately, everyone is just suing for the money, not about the sport.

What’s funny about the kiwi fanboys in this forum, they think Dalton cares about them. Dalton cares about one thing and one thing only, making money off the Cup.

I hope Dalton does sell his soul to the Saudis. He’ll never be welcomed back into New Zealand.

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5 hours ago, enigmatically2 said:

Ratcliffe doesn't need to challenge it in the courts. As I have said he merely has to threaten to decline the protocol and issue a DOG challenge in February. Then the timing means it has to be southern hemisphere. So NZ would have little money and a DOG match Vs a well funded competitor. It's not a bluff ETNZ would call. So if Ratcliffe wants to avoid Jeddah he can.

Ross & Dunphy? Can't see much grounds for challenging

Ratcliffe has previously stated that he doesn't want to buy the cup, assuming that he his a man of his word the threat that you describe is not a tool that he would use.

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1 hour ago, mako23 said:

We’re living in a Covid world, many countries are struggling to keep their supply chains moving. Shortages in supermarkets are common in western countries. Hardly the environment for ETNZ to rake up corporate sponsors. It’s a bit like after WW2 where no one had the money to go J boat racing. 

The only sponsors are Billionaires with large egos. When I last checked we are all out of those in NZ.  ETNZ could wait until it finds the sponsors which could drag out the cup for years.

The alternative is a cost controlled Cup with one boat per team and a total budget of 50 Mil USD. No more than 70 people in a syndicate. Every team has an independent auditor who keeps a check on all costs.  All accepted free offers of material, research or labour will be valued to its true commercial cost and deducted from their budget. Challenging syndicates will be allowed an extra million out of budget for accommodation costs when in the host country. 
 

We could use the F1 rules as a template

 

financial_regulations_06.03.20_clean_pub

Hardly the best solution but better than a cup in 2025 or later. 

Ratcliffe and ETNZ already have a team of 30 people carrying out design work so when does the 50 MI USD start? when the protocol is announced? I understand that Luna Rossi and Alinghi have also started employing people, are their costs included if they enter AC37?  How do you account for the costs incurred for the writing of the protocol?

ETNZ are designing and building hydrogen powered chase boats, where do these costs fall?

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On 10/26/2021 at 12:25 PM, porthos said:

I am convinced Ross fundamentally misunderstands the justice system here and should stop talking about it.

As an initial matter, courts speak through orders, not through what they say at oral argument.  Assuming Ross's transcript of what the judge said at that hearing is correct -- and I assume it is -- you can't cite that transcript as any form of judicial precedent. You have to cite the actual order issued by the judge, and I doubt the actual order the judge issued includes any of those incidental remarks. I think I have seen all of the orders and there was none of that discussion in them.  In other words, those incidental remarks by the judge at oral argument have no precedential value. We have a word for that -- dicta.  And if you cite dicta in a later case, you'll look like an idiot.

More importantly, SNG appealed that order to the NY Appellate Division, and the Appellate Division ruled on that appeal, finding that RAK was not a permissible venue because it was in the wrong hemisphere.  The appellate ruling said absolutely nothing about RAK being an impermissible venue because of discrimination laws. That appellate ruling from the higher court becomes the precedent over the ruling of the lower (trial) court that Ross cites. In other words, you can forget about anything the lower court said that wasn't ruled on by the appellate court.

He even uses the wrong term. He says this "judgment" was "upheld by a New York appellate court."  The lower court didn't issue a judgment; it issued an order. Judgments come at the end of a trial. A first year law school student understands the difference, but Ross apparently doesn't.

His longevity in this area remains baffling to me.

You make sense, and didn't even insult anyone in the process. Are you sure this is the forum for you?

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1 hour ago, Terry Hollis said:

Ratcliffe and ETNZ already have a team of 30 people carrying out design work so when does the 50 MI USD start? when the protocol is announced? I understand that Luna Rossi and Alinghi have also started employing people, are their costs included if they enter AC37?  How do you account for the costs incurred for the writing of the protocol?

ETNZ are designing and building hydrogen powered chase boats, where do these costs fall?

(Hydrogen chase boats- cost of normal chase boats) not carried into the cost cap. However a sum for normal chase boats carried into cost cap. Existing design work costs carried into cost cap. 
 

Similar calculation for existing work teams doing work.

 

look I know a cost cap is never going to happen. What is good for the sport and what happens rarely match up.  The cost cap for F1 is working really well, and the teams are a lot closer in speed. 

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2 hours ago, Terry Hollis said:

Ratcliffe has previously stated that he doesn't want to buy the cup, assuming that he his a man of his word the threat that you describe is not a tool that he would use.

At what level of funding does it register as "buying something" when you are a billionaire?

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3 hours ago, sunseeker said:

He may not be suing about anything related to the deed. If there’s one guy who knows where all the kiwi bones are buried, it’s Farmer.

Only because he was standing by leaning on a shovel.  Farmer has only one agenda and it isn't a design led America's Cup primarily because he doesn't make any money out of that type of event.

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17 minutes ago, Kate short for Bob said:

Only because he was standing by leaning on a shovel.  Farmer has only one agenda and it isn't a design led America's Cup primarily because he doesn't make any money out of that type of event.

Pick your poison, Dalton or Farmer. All I’m saying is Farmer can seriously fuck with Dalton, and I hope he does. Not saying Farmer would prevail, but a kiwi on kiwi shitfight will expose the kiwis for what they are. It’s just about making money. 

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5 hours ago, Terry Hollis said:

Ratcliffe has previously stated that he doesn't want to buy the cup, assuming that he his a man of his word the threat that you describe is not a tool that he would use.

I  agree, up to a point. It depends on how long GD drags his feet. Presumably there's a dialogue in progress between defender on challenger that they haven't chosen to conduct in public.  Whether those claiming inside knowledge have it or are just having a laugh, is unknowable.

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6 hours ago, porthos said:

Our mysterious new friend

There is a lengthy history on SAAC of make-believe "litigators" claiming inside knowledge of impending cases and a surprising degree of willingness to take them seriously. Whether our new friend is for real or one of those, it is so far hard to say.

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6 hours ago, sunseeker said:

About all this potential kiwi litigation from the likes of Squeamish Ross I’m reminded of a saying a former America’s Cup tactician uses to describe kiwis, Keenly Interested Without Intelligence.

Ultimately, everyone is just suing for the money, not about the sport.

What’s funny about the kiwi fanboys in this forum, they think Dalton cares about them. Dalton cares about one thing and one thing only, making money off the Cup.

I hope Dalton does sell his soul to the Saudis. He’ll never be welcomed back into New Zealand.

Whats funny is you thinking you know what Dalton cares about.

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9 hours ago, Kate short for Bob said:

If Farmer was consistent wouldn't he be mounting a legal challenge against the NZ Cricket Team playing in the T20 World Cup in UAE?

Based on a racist assumption that UAE & Saudi must be all the same?

UAE are much higher up the human rights ranking tables than KSA so there is not necessarily any inconsistency at all.

Inevitably there is an arbitrary choice of where human rights is "good enough" to allow them to have events. 

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8 hours ago, NeedAClew said:

That you Russell?

We'll know if you disappear for a month. I once guessed butterballs and promptly disappeared, to my never ending pleasure :D

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3 hours ago, Stingray~ said:

Not sure if this means Jeddah is out of the running, but it might. I think it’s from in the paywalled NZ Herald article. 
 

image.thumb.jpeg.653902855bc1536bebd3a2727200a97a.jpeg

Sounds like RNZYS is heading off some claim that it is abrogating its duties as the Trustee. 

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2 hours ago, porthos said:

Sounds like RNZYS is heading off some claim that it is abrogating its duties as the Trustee. 

I believe it was a response to Farmer’s letter. HR said on SI yesterday he found that response reassuring. 

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18 hours ago, enigmatically2 said:

Ratcliffe doesn't need to challenge it in the courts. As I have said he merely has to threaten to decline the protocol and issue a DOG challenge in February. Then the timing means it has to be southern hemisphere. So NZ would have little money and a DOG match Vs a well funded competitor. It's not a bluff ETNZ would call. So if Ratcliffe wants to avoid Jeddah he can.

Ross & Dunphy? Can't see much grounds for challenging

Actually, the current challenge is already running since 7 months. To have a better timing, RYS can withdraw the current challenge and immediately re-challenge at a convenient point in time, making sure that the match is 10 months away in the SH.

17 hours ago, dg_sailingfan said:

BOOM

https://www.nzherald.co.nz/business/former-team-nz-director-warns-he-will-sue-if-saudi-arabia-named-as-next-americas-cup-host/NVJRTV2BOPKQCWPM3JMXK3YJPU/

(Unfortunately I can't get behind that Paywall; Anyone who has a subscription can help.

It's apparently Jim Farmer!

 

FF + Addon "Bypass Paywalls"

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3 minutes ago, Rennmaus said:

Actually, the current challenge is already running since 7 months. To have a better timing, RYS can withdraw the current challenge and immediately re-challenge at a convenient point in time, making sure that the match is 10 months away in the SH.

FF + Addon "Bypass Paywalls"

No they can’t. The moment they withdraw the challenge anyone else is free to submit a challenge. Would be perfect for Ernesto to submit a DoG challenge. 

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8 minutes ago, Stingray~ said:

I believe it was a response to Farmer’s letter. HR said on SI yesterday he found that response reassuring. 

That's only the tip of the iceberg! Dunphy apparently wants to start and investigation and the Protocol to be delayed!

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21 minutes ago, sunseeker said:

No they can’t. The moment they withdraw the challenge anyone else is free to submit a challenge. Would be perfect for Ernesto to submit a DoG challenge. 

They can if they immediately re-challenge, as I wrote. Then there would be no time for another YC to wrestle a challenge in. Of course they should not announce their wish to withdraw plus the date in the evening news.

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3 minutes ago, Rennmaus said:

They can if they immediately re-challenge, as I wrote. Then there would be no time for another YC to wrestle a challenge in. Of course they should not announce their wish to withdraw plus the date in the evening news.

Depending on how the original Challenge was worded a withdrawal and re-challenge may not be necessary. 

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On Hamish Ross and the Discrimination Issue:

This will be long, pedantic, and legal.  I apologize for the length; read at your own risk.

Hamish Ross has recently claimed on multiple occasions that, in conjunction with ruling on the viability of RAK as a venue on October 27, 2009, Judge Kornreich likewise established that: (1) the Deed is subject to NY discrimination laws; and (2) any venue for a match must comply with those discrimination laws. Dr. Ross further claimed that this ruling by Judge Kornreich was upheld on appeal, and is thus the law of the cup.1 

One of these claims is probably sort of true but not in the way Dr. Ross thinks it is; the other is patently false (spoiler alert: that makes all the difference).

Up front disclaimer:

Everything Hamish is claiming comes from the transcript of a hearing Judge Kornreich held on October 27, 2009. I do not have a copy of that transcript; however, I can find some references to it (and Hamish restates part of it in his recent posting). If anyone has a copy of that transcript and can send it to me, I would appreciate it. I'm in the process of getting the entire record from the NY courts, but it is going to take a bit.

Quick Background:

SNG announced in August, 2009, that RAK would be the venue for AC33. GGYC filed a motion with the court asking the court to invalidate RAK as a venue on two grounds: (1) RAK was in the northern hemisphere and is not Deed-compliant for a race to be held in February; and (2) RAK was an unsafe location in which to hold AC33. Those were the two grounds -- and the only two grounds -- for the request: location and security. SNG opposed the motion. Judge Kornreich held a hearing on October 27, 2009.

The October 27, 2009 Hearing:

The internet can have a long memory. Here is a page on Marian's old site recounting the hearing:

https://www.bymnews.com/americas-cup-33/dilemma.php

I assume Marian's account is accurate, just as I assume Hamish's recounting of the hearing is accurate. Marian's account is instructive. As expected, GGYC's attorney at the hearing covered the two grounds -- location and security -- for disqualifying RAK. SNG opposed on those grounds, and RAK's attorney talked about how safe RAK was. Critically, nobody talked about discrimination laws, nobody requested any relief based on discrimination laws, and I bet all the money in my pocket against all the money in your pocket that nobody even mentioned discrimination laws in any brief. 

Judge Kornreich addressed the two grounds (location and security) GGYC raised, finding one dispositive of the matter and therefore not needing to address the other.  More specifically, Judge Kornreich found that RAK was not Deed-compliant for a February race because it was in the northern hemisphere.2  Having resolved the matter, Judge Kornreich decided she didn't even need to address and would not address the security issue.3

And then, apparently, out-of-the-blue and after having just indicated she resolved the matter, Judge Kornreich added this (according to Hamish, which again I assume is true)4:

"Again, although not specifically addressed, what I do want to state, and I’m stating this because in the future it may come up, the Deed of Trust requires “friendly competition between foreign nations [sic].”

Now in keeping with this requirement, I believe that any venue – in keeping with this requirement, and also in keeping with the laws of New York and of the United States against discrimination, any venue that is selected must be a venue that permits spectators and competitors from any nation and religion to take part.

I’m just stating for the record, because that would be an issue were any nation or any religion barred from taking part, both as a spectator and as a competitor in any race, in any nation.

This is a Deed of Trust under New York and United States law, and there is no discrimination under our laws." (Underlined emphasis mine.)

Judge Kornreich specifically noted that her statement on the applicability of discrimination laws to the Deed and venues was not addressed by any of the parties. She just raised it on her own after having already resolved the dispute before the court. This commentary clearly was not necessary to decide the issue, as Judge Kornriech disposed of it on the location grounds and specifically indicated that she need not consider anything further.  That will be important.

Contrary to Hamish's claims, Judge Kornreich (as she must under the court rules) issued a written order memorializing her decisions in the wake of the hearing. A copy is attached.5 SNG appealed the order.

The Appeal

The Appellate Division upheld Judge Kornreich's decision that RAK was not a permissible venue for AC33. A copy of the decision is attached. Importantly, the Appellate Division upheld Judge Kornreich's decision on the grounds that RAK is not a Deed-complaint venue because it is in the wrong hemisphere for a February race:

"RAK, which is in the Northern Hemisphere, is not a Deed-compliant location for a February race.

The court never discussed any discrimination issues. The court never discussed any security issues. The court only discussed the hemisphere issue. In fact, the last line of the opinion makes clear that the court found irrelevant every other argument the parties made:

"We have considered the remaining contentions and find them unavailing."

To the extent any of the parties raised the discrimination issue, the Appellate Division found it "unavailing". I'll find out when I get the briefs.  In any event, the Appellate Division clearly affirmed that the only issue that mattered was the location of RAK.

Okay, So What?

Why does all of this matter? Judge Kornreich's commentary on the applicability of discrimination laws to cup venues is quintessential legal dicta.  In the legal world, dicta are any comments by a judge that may be related to the case but are not necessary to decide it. Here is the definition of "dictum" from the NY Court's own website:

"dictum:  A part of a written opinion in a court case that is related to the case, but not needed to decide it.  It can't be used as precedent in future cases."  (Underlined emphasis mine.)6

Judge Kornreich's discrimination commentary came after she already decided the dispute before her on other grounds. In other words, her comments were "related to the case, but not needed to decide it."  As a result, and contrary to Hamish's claim, Judge Kornreich's dicta has no precedential value. Someone can't cite to that in the future as binding on a future court.  This was a throw-away comment. Judges do that sometimes, and our law is clear: a judge can't craft whole new areas of law through mere commentary. And that makes sense.

As the final nail in the coffin, the decision of the Appellate Division specifically noted that the location issue was dispositive of the matter and all other contentions were "unavailing." The Appellate Division > The Supreme Court, and presumably the "other contentions" included the discrimination argument. Or maybe none of the parties even raised it on appeal. Either way, the dispositive opinion is from the Appellate Division and the Appellate Division did not endorse or affirm Judge Kornreich's unsolicited thoughts on whether NY discrimination laws apply to cup venues. 

Where Judge Kornreich's beliefs could have merit would be if future AC litigation somehow ended up in front of her again. She would be free, of course, to continue applying her apparent belief that discrimination laws apply to cup venues. That won't happen, however, because she is retired and no longer on the bench. No future judge is bound by what she said in her dicta.

Simply put, NY discrimination laws, at least at present, do not apply to any cup venues. 

Q.E.D.

--------------------------------------------------------

1I assume Mr. Ross is making these claims now as a precursor to or perhaps foreshadowing of legal action should RNZYS attempt to select a venue in the Middle East (to claim that any ME venue would violate NY discrimination laws and cannot therefore be a venue).

2"Therefore, since RAK is in the Northern Hemisphere, it cannot under the Deed of Trust take place in RAK."

3"The Court, however -- the Court will not comment and does not believe it is appropriate for me to comment, or need I comment at this point, about security and safety." 

4I got this of of Hamish's facebook page.

5In fairness, that written order just references the discussion on record at the hearing. Courts often do this. Nonetheless, Hamish's repeated claim that there was no written order from the court is flat out wrong, as is his repeated claim that the court issued a "judgment". The court issued an order, not a judgment. Are these small things? Yes they are. Are they pedantic? Equally so. But if Hamish can't get the small things right, I'm not sure why I should trust him on the big things.

6Link here: https://nycourts.gov/courthelp/GoingToCourt/glossary.shtml

2009-10-27 Kornreich Order.pdf 2009-12-15 Appellate Division Opinion.pdf

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1 hour ago, Rennmaus said:

Actually, the current challenge is already running since 7 months. To have a better timing, RYS can withdraw the current challenge and immediately re-challenge at a convenient point in time, making sure that the match is 10 months away in the SH.

 

So basically the same as I said?

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@porthosThank you for that analysis.

Whilst recognising that no-one can cite any prior ruling, surely the fact that she made that comment at least suggests a possibility (even a significant probability) that another judge today might decide the same and rule that way

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1 hour ago, Rennmaus said:

They can if they immediately re-challenge, as I wrote. Then there would be no time for another YC to wrestle a challenge in. Of course they should not announce their wish to withdraw plus the date in the evening news.

The problem with that is, if they withdraw, their challenge is over as it has been decided. It is then up to the RNZYS (or Team NZ) to accept the next challenger. If a second challenge has officially been lodged with the RNZYS, and I assume it has, (for this very reason, that there is a back up CoR) they will become CoR and RYS, if they decide to re challenge, will essentially be just another challenger. 

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1 hour ago, Rennmaus said:

They can if they immediately re-challenge, as I wrote. Then there would be no time for another YC to wrestle a challenge in. Of course they should not announce their wish to withdraw plus the date in the evening news.

After thinking about it a bit, I’m not sure they could withdraw a challenge and immediately re-challenge. We’d need Bob Fisher to tell us if that’s ever happened in the history of the Cup, but he’s unavailable. I’d think any one of several clubs would file a suit if they did as you propose. Maybe Porthos has a legal view on this.

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18 minutes ago, enigmatically2 said:

@porthosThank you for that analysis.

Whilst recognising that no-one can cite any prior ruling, surely the fact that she made that comment at least suggests a possibility (even a significant probability) that another judge today might decide the same and rule that way

The possibility always exists that because one judge thought something was relevant, a subsequent judge might as well. Which is why I concluded my too-long post as I did. 

I disagree that there is a "significant probability" that will happen. Judge Kornreich's dicta was unprecedented and sweeping -- with a few words at the end of a discussion she attempted to apply a massive area of the law to the America's cup in a manner that no court at any level even considered before. That's extreme. There are all kinds of jurisdictional, jurisprudential, and interpretive issues with what Judge Kornreich did such that I don't expect another judge to pick up that mantle. I could always be wrong.   

Edit: recall that the Appellate Division found every other contention "unavailing". One of these days, I will get my hands on the briefing from that appeal and will be able to determine if anyone raised the discrimination issue with the Appellate Division.

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20 hours ago, Section 23 said:

The firm was retained long ago.  The complaint has been drafted.  Purgation of what the America’s Cup has become may well be nigh.

I had to look that up. oh. "the purification or cleansing of someone or something."

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19 minutes ago, sunseeker said:

After thinking about it a bit, I’m not sure they could withdraw a challenge and immediately re-challenge. We’d need Bob Fisher to tell us if that’s ever happened in the history of the Cup, but he’s unavailable. I’d think any one of several clubs would file a suit if they did as you propose. Maybe Porthos has a legal view on this.

You don't need Bob, you just need his book or a bit of knowledge about AC history.

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1 hour ago, porthos said:

On Hamish Ross and the Discrimination Issue:

This will be long, pedantic, and legal.  I apologize for the length; read at your own risk.

Hamish Ross has recently claimed on multiple occasions that, in conjunction with ruling on the viability of RAK as a venue on October 27, 2009, Judge Kornreich likewise established that: (1) the Deed is subject to NY discrimination laws; and (2) any venue for a match must comply with those discrimination laws. Dr. Ross further claimed that this ruling by Judge Kornreich was upheld on appeal, and is thus the law of the cup.1 

One of these claims is probably sort of true but not in the way Dr. Ross thinks it is; the other is patently false (spoiler alert: that makes all the difference).

Up front disclaimer:

Everything Hamish is claiming comes from the transcript of a hearing Judge Kornreich held on October 27, 2009. I do not have a copy of that transcript; however, I can find some references to it (and Hamish restates part of it in his recent posting). If anyone has a copy of that transcript and can send it to me, I would appreciate it. I'm in the process of getting the entire record from the NY courts, but it is going to take a bit.

Quick Background:

SNG announced in August, 2009, that RAK would be the venue for AC33. GGYC filed a motion with the court asking the court to invalidate RAK as a venue on two grounds: (1) RAK was in the northern hemisphere and is not Deed-compliant for a race to be held in February; and (2) RAK was an unsafe location in which to hold AC33. Those were the two grounds -- and the only two grounds -- for the request: location and security. SNG opposed the motion. Judge Kornreich held a hearing on October 27, 2009.

The October 27, 2009 Hearing:

The internet can have a long memory. Here is a page on Marian's old site recounting the hearing:

https://www.bymnews.com/americas-cup-33/dilemma.php

I assume Marian's account is accurate, just as I assume Hamish's recounting of the hearing is accurate. Marian's account is instructive. As expected, GGYC's attorney at the hearing covered the two grounds -- location and security -- for disqualifying RAK. SNG opposed on those grounds, and RAK's attorney talked about how safe RAK was. Critically, nobody talked about discrimination laws, nobody requested any relief based on discrimination laws, and I bet all the money in my pocket against all the money in your pocket that nobody even mentioned discrimination laws in any brief. 

Judge Kornreich addressed the two grounds (location and security) GGYC raised, finding one dispositive of the matter and therefore not needing to address the other.  More specifically, Judge Kornreich found that RAK was not Deed-compliant for a February race because it was in the northern hemisphere.2  Having resolved the matter, Judge Kornreich decided she didn't even need to address and would not address the security issue.3

And then, apparently, out-of-the-blue and after having just indicated she resolved the matter, Judge Kornreich added this (according to Hamish, which again I assume is true)4:

"Again, although not specifically addressed, what I do want to state, and I’m stating this because in the future it may come up, the Deed of Trust requires “friendly competition between foreign nations [sic].”

Now in keeping with this requirement, I believe that any venue – in keeping with this requirement, and also in keeping with the laws of New York and of the United States against discrimination, any venue that is selected must be a venue that permits spectators and competitors from any nation and religion to take part.

I’m just stating for the record, because that would be an issue were any nation or any religion barred from taking part, both as a spectator and as a competitor in any race, in any nation.

This is a Deed of Trust under New York and United States law, and there is no discrimination under our laws." (Underlined emphasis mine.)

Judge Kornreich specifically noted that her statement on the applicability of discrimination laws to the Deed and venues was not addressed by any of the parties. She just raised it on her own after having already resolved the dispute before the court. This commentary clearly was not necessary to decide the issue, as Judge Kornriech disposed of it on the location grounds and specifically indicated that she need not consider anything further.  That will be important.

Contrary to Hamish's claims, Judge Kornreich (as she must under the court rules) issued a written order memorializing her decisions in the wake of the hearing. A copy is attached.5 SNG appealed the order.

The Appeal

The Appellate Division upheld Judge Kornreich's decision that RAK was not a permissible venue for AC33. A copy of the decision is attached. Importantly, the Appellate Division upheld Judge Kornreich's decision on the grounds that RAK is not a Deed-complaint venue because it is in the wrong hemisphere for a February race:

"RAK, which is in the Northern Hemisphere, is not a Deed-compliant location for a February race.

The court never discussed any discrimination issues. The court never discussed any security issues. The court only discussed the hemisphere issue. In fact, the last line of the opinion makes clear that the court found irrelevant every other argument the parties made:

"We have considered the remaining contentions and find them unavailing."

To the extent any of the parties raised the discrimination issue, the Appellate Division found it "unavailing". I'll find out when I get the briefs.  In any event, the Appellate Division clearly affirmed that the only issue that mattered was the location of RAK.

Okay, So What?

Why does all of this matter? Judge Kornreich's commentary on the applicability of discrimination laws to cup venues is quintessential legal dicta.  In the legal world, dicta are any comments by a judge that may be related to the case but are not necessary to decide it. Here is the definition of "dictum" from the NY Court's own website:

"dictum:  A part of a written opinion in a court case that is related to the case, but not needed to decide it.  It can't be used as precedent in future cases."  (Underlined emphasis mine.)6

Judge Kornreich's discrimination commentary came after she already decided the dispute before her on other grounds. In other words, her comments were "related to the case, but not needed to decide it."  As a result, and contrary to Hamish's claim, Judge Kornreich's dicta has no precedential value. Someone can't cite to that in the future as binding on a future court.  This was a throw-away comment. Judges do that sometimes, and our law is clear: a judge can't craft whole new areas of law through mere commentary. And that makes sense.

As the final nail in the coffin, the decision of the Appellate Division specifically noted that the location issue was dispositive of the matter and all other contentions were "unavailing." The Appellate Division > The Supreme Court, and presumably the "other contentions" included the discrimination argument. Or maybe none of the parties even raised it on appeal. Either way, the dispositive opinion is from the Appellate Division and the Appellate Division did not endorse or affirm Judge Kornreich's unsolicited thoughts on whether NY discrimination laws apply to cup venues. 

Where Judge Kornreich's beliefs could have merit would be if future AC litigation somehow ended up in front of her again. She would be free, of course, to continue applying her apparent belief that discrimination laws apply to cup venues. That won't happen, however, because she is retired and no longer on the bench. No future judge is bound by what she said in her dicta.

Simply put, NY discrimination laws, at least at present, do not apply to any cup venues. 

Q.E.D.

--------------------------------------------------------

1I assume Mr. Ross is making these claims now as a precursor to or perhaps foreshadowing of legal action should RNZYS attempt to select a venue in the Middle East (to claim that any ME venue would violate NY discrimination laws and cannot therefore be a venue).

2"Therefore, since RAK is in the Northern Hemisphere, it cannot under the Deed of Trust take place in RAK."

3"The Court, however -- the Court will not comment and does not believe it is appropriate for me to comment, or need I comment at this point, about security and safety." 

4I got this of of Hamish's facebook page.

5In fairness, that written order just references the discussion on record at the hearing. Courts often do this. Nonetheless, Hamish's repeated claim that there was no written order from the court is flat out wrong, as is his repeated claim that the court issued a "judgment". The court issued an order, not a judgment. Are these small things? Yes they are. Are they pedantic? Equally so. But if Hamish can't get the small things right, I'm not sure why I should trust him on the big things.

6Link here: https://nycourts.gov/courthelp/GoingToCourt/glossary.shtml

2009-10-27 Kornreich Order.pdf 45.51 kB · 0 downloads 2009-12-15 Appellate Division Opinion.pdf 84.66 kB · 0 downloads

Impressive

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Lovely work porthos. Would be a good treatment for a 1-L textbook teaching meaning of dicta

if you search the forums you will probably find a play by play thread i authored from the courtroom that day

 

 

 

 

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2 minutes ago, NeedAClew said:

So are TE and HR working for someone who wants to issue a DoG challenge if mutual consent breaks down?

If mutual consent breaks down then the present challenge becomes a Dog match.

I think...

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2 minutes ago, Gissie said:

If mutual consent breaks down then the present challenge becomes a Dog match.

I think...

Correct. The only way RYSL would not participate in a DoG match is if decides voluntarily to bow out and not participate in such a match. That said, I am becoming increasingly convinced that, if there is legal action, someone is going to challenge the validity of RYSL as a CoR. I don't see that succeeding, but if it did, then we'd have a mess. NYYC may or may not still have a pending challenge.  

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I think Ineos or whoever has to deliver the challenge for DoG match naming date and with description of the challenging boat. Be amusing to see them sail the big boy course. Perhaps not in an AC75, lol. 

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1 hour ago, porthos said:

Correct. The only way RYSL would not participate in a DoG match is if decides voluntarily to bow out and not participate in such a match. That said, I am becoming increasingly convinced that, if there is legal action, someone is going to challenge the validity of RYSL as a CoR. I don't see that succeeding, but if it did, then we'd have a mess. NYYC may or may not still have a pending challenge.  

Dunphy let out a hint on Tuesday Night with a TV Station in NZ that he thinks ETNZ should be investigated and he wants to delay the sign-off of the Protocol so it could be him.

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So are they all working for the same would be DoG challenger, or different ones? TE and Nyyc...HR and...?  Dunphy and Which are aligned?  1 2 or 3 would be DoG challengers? 

If RYSL is out, maybe JR has a challenge in hand for another club and boat for the big boy course, lolz.

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2 hours ago, dg_sailingfan said:

Dunphy let out a hint on Tuesday Night with a TV Station in NZ that he thinks ETNZ should be investigated and he wants to delay the sign-off of the Protocol so it could be him.

Investigated for what FFS?  I wonder if M&C are lurking behind Dunphy as well.

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Pete has said ( in the Nathan is the new helm :-) announcement ) that him And  Blair have issues with Jeddah as a venue. Why would the name Jeddah if it wasn’t even under consideration 

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23 minutes ago, JALhazmat said:

Pete has said ( in the Nathan is the new helm :-) announcement ) that him And  Blair have issues with Jeddah as a venue. Why would the name Jeddah if it wasn’t even under consideration 

Because everyone else is. Because somehow Ehman got info from Stingray and pushed the Jeddah rumour to the moon until enough people started believing the lie.

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31 minutes ago, JALhazmat said:

Pete has said ( in the Nathan is the new helm :-) announcement ) that him And  Blair have issues with Jeddah as a venue. Why would the name Jeddah if it wasn’t even under consideration 

Yep, read that comment the same way.. 

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Someone mentioned Jeddah a while back, no one seems to know who mentioned it. Cork came out and confirmed they were in the running, and apparently still are, yet everyone said “nah it’s not gonna be there” then there was 2 bids from Spain who themselves confirmed they were being considered, and still are, and again everyone said “Nah it won’t be there”. Nothing from anyone from SA or any media or Team NZ or the CoR or any of the teams or anyone at all about Jeddah being considered, yet everyone’s saying “Yip it’s definitely Jeddah” WTF. It’s Chinese whispers. Someone said it, someone else picked up on it and spread it and so on and so on until it’s got to be this big thing that no one even knows if it’s even being considered or not.

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So Dunphy doesn't have the backers he once said he did. 

After all the bluster of Dalton stepping down, to not, then having backers who promised they'd help

To now not having any cash and now he's forced to admit "it might have to come from my family"

Fucking clown

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59 minutes ago, JALhazmat said:

Pete has said ( in the Nathan is the new helm :-) announcement ) that him And  Blair have issues with Jeddah as a venue. Why would the name Jeddah if it wasn’t even under consideration 

Gets noted here too: 

The reference to Jeddah, the port city on Saudi Arabia’s west coast, is not likely to have delighted team boss Grant Dalton, who is embroiled in the ticklish business of finding an overseas venue prepared to pay a hosting fee to help fund the team’s defence. Mention of Jeddah and the implied entry into political and human rights issues will not be in Burling and Tuke’s job descriptions.
https://theprojectsworld.com/sport/paul-lewis-what-team-new-zealands-signing-of-nathan-outerridge-means-for-next-americas-cup/

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This is a perfect example of chinese whispers.

Stingray keeps bringing up Jeddah. Jeddah this, Jeddah that, Jeddah, Jeddah, Jeddah.

Tom Ehman is also Jeddah this, Jeddah that, Jeddah Jeddah Jeddah

consequently Ehmans contacts, of which he has many in the sailing community just hear Jeddah, Jeddah, Jeddah.

Ehman even gets a spot on NZ TV and mentions Jeddah whenever he can.

Then the media picks up on it and they see a juicey story that they know looks bad for Dalton if they keep mentioning it, so they keep referencing Jeddah, Jeddah Jeddah

its no wonder Jeddah is always in the news.

Jeddah bad lol

But no one actually knows if Jeddah has anything to do with anything Americas Cup.

 

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A direct quote from Pete and Blair from  the link above 

So yeah I suppose you are right as they haven’t signed on they aren’t in the team so it’s not official ;-) :D

59645B86-F62D-4A0F-B9C7-366CA0D34B8C.jpeg

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59 minutes ago, Forourselves said:

This is a perfect example of chinese whispers.

Stingray keeps bringing up Jeddah. Jeddah this, Jeddah that, Jeddah, Jeddah, Jeddah.

Tom Ehman is also Jeddah this, Jeddah that, Jeddah Jeddah Jeddah

consequently Ehmans contacts, of which he has many in the sailing community just hear Jeddah, Jeddah, Jeddah.

Ehman even gets a spot on NZ TV and mentions Jeddah whenever he can.

Then the media picks up on it and they see a juicey story that they know looks bad for Dalton if they keep mentioning it, so they keep referencing Jeddah, Jeddah Jeddah

its no wonder Jeddah is always in the news.

Jeddah bad lol

But no one actually knows if Jeddah has anything to do with anything Americas Cup.

 

Great diversion though!

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1 hour ago, Forourselves said:

This is a perfect example of chinese whispers.

Stingray keeps bringing up Jeddah. Jeddah this, Jeddah that, Jeddah, Jeddah, Jeddah.

Tom Ehman is also Jeddah this, Jeddah that, Jeddah Jeddah Jeddah

consequently Ehmans contacts, of which he has many in the sailing community just hear Jeddah, Jeddah, Jeddah.

Ehman even gets a spot on NZ TV and mentions Jeddah whenever he can.

Then the media picks up on it and they see a juicey story that they know looks bad for Dalton if they keep mentioning it, so they keep referencing Jeddah, Jeddah Jeddah

its no wonder Jeddah is always in the news.

Jeddah bad lol

But no one actually knows if Jeddah has anything to do with anything Americas Cup.

 

Are Pete and Blair Chinese then? 

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Another reason for why I dislike seeing or reading reposts of 4’s BS.. 

The facts are that Jeddah was originally reported as being a ‘competitor’ to Cork, in Irish media. ETNZ have never denied it. And among many news items on the venue subject are comments by competitors, now also by P&B, and was recently addressed even by Farmer.
 

Jeddah has f-all to do with me, quite obviously!  :D 

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On 10/22/2021 at 4:33 PM, enigmatically2 said:

I agree that I would rather not have cyclors. 

However last year Chris Froome was paid 5.5m Euros. So comfortably more. I'm pretty sure he or any other top cyclist could do the job more than adequately

he most definitely did not earn that, as that number was linked to performance bonuses (he was only capable of finishing within the time limit mostly).

 

on the ridiculous notion that cyclors come back, i think you'd see mostly sailors learning how to push watts rather than cyclists/rowers going boating. Sure Ineos has got access to some of the best riders and trainers in the world, but it's track cyclists you need more, and NZ have plenty of decent level stocks there.

 

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2 hours ago, Forourselves said:

Someone mentioned Jeddah a while back, no one seems to know who mentioned it. Cork came out and confirmed they were in the running, and apparently still are, yet everyone said “nah it’s not gonna be there” then there was 2 bids from Spain who themselves confirmed they were being considered, and still are, and again everyone said “Nah it won’t be there”. Nothing from anyone from SA or any media or Team NZ or the CoR or any of the teams or anyone at all about Jeddah being considered, yet everyone’s saying “Yip it’s definitely Jeddah” WTF. It’s Chinese whispers. Someone said it, someone else picked up on it and spread it and so on and so on until it’s got to be this big thing that no one even knows if it’s even being considered or not.

And B&T fell for the bullshit? They are basing career defining moves on a baseless bunch of AC Anarchy whispers?

:lol: You become a bigger idiot every day.

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21 minutes ago, Stingray~ said:

Interesting comments toward the end of this audio, about the suppressed MBIE sponsored AC36 accounting report.

https://www.spreaker.com/user/nzme/hamish-rutherford-herald-business-editor

Doesn't take much too interest you.  M&C at work again trying to resurrect their reputation.  Suggest you join the dots between them, an Auckland council organisation member, Farmer and Dunphy.

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On 10/26/2021 at 1:20 PM, enigmatically2 said:

I don't think it would be a DoG match in reality, merely the threat of a DoG challenge would be enough to get GD to drop any idea of the ME, but stay in AC75s which I think Ineos would want. But I don't think either party would want an out and out DoG match

Sir Jim said he doesn't want to "buy" the America's Cup, BUT the idea of an Ineos led DoG is mildly amusing.

Ineos would issue the challenge, the date and the length of boat, right? they would surely host it in the solent.

in Valencia '11 we saw the largest beasts allowed techincally, but one with a wing and no foils.

Ineos would easily be able to outspend ETNZ, so would they just issue the largest possible anything, Would someome go get Ailinghi 5 from the Valencia dock it still sits on and get it foiling?

Would ETNZ just use their AC75, add some go fast tweaks and hope it's quicker round the course than whatever Ineos could build?

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1 hour ago, shebeen said:

Sir Jim said he doesn't want to "buy" the America's Cup, BUT the idea of an Ineos led DoG is mildly amusing.

Ineos would issue the challenge, the date and the length of boat, right? they would surely host it in the solent.

in Valencia '11 we saw the largest beasts allowed techincally, but one with a wing and no foils.

Ineos would easily be able to outspend ETNZ, so would they just issue the largest possible anything, Would someome go get Ailinghi 5 from the Valencia dock it still sits on and get it foiling?

Would ETNZ just use their AC75, add some go fast tweaks and hope it's quicker round the course than whatever Ineos could build?

The Challenger doesn't get to pick the venue. From the DoG:

"In case the parties cannot mutually agree upon the terms of a match, then three races shall be sailed, and the winner of two of such races shall be entitled to the Cup. All such races shall be on ocean courses, free from headlands, as follows: the first race, twenty nautical miles to windward and return; the second race, an equilateral triangular race of thirty-nine nautical miles, the first side of which shall be a beat to windward; the third race, (if necessary), twenty nautical miles to windward and return; and one week day shall intervene between the conclusion of one race and the starting of the next race. These ocean courses shall be practicable in all parts for vessels of twenty-two feet draught of water and shall be selected by the Club holding the Cup; and these races shall be sailed subject to its rules and sailing regulations so far as the same do not conflict with the provisions of this deed of gift, but without any time allowances whatever. The challenged Club shall not be required to name its representative vessel until at the time agreed upon for the start, but the vessel when named must compete in all the races; and each of such races must be completed within seven hours."

 

For a DoG match, with no constraints other than the min/max waterline limits, you could take an AC75, put a wing on it, and optimize foils without dimensional, functional, or material constraints.

However, there is also that pesky Constructed in Country clause which gets in the way. In a DoG match, if past is precursor to present, CiC will be strictly applied. Ask Larry and Ernesto about this one.

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14 minutes ago, accnick said:

The Challenger doesn't get to pick the venue. From the DoG:

"In case the parties cannot mutually agree upon the terms of a match, then three races shall be sailed, and the winner of two of such races shall be entitled to the Cup. All such races shall be on ocean courses, free from headlands, as follows: the first race, twenty nautical miles to windward and return; the second race, an equilateral triangular race of thirty-nine nautical miles, the first side of which shall be a beat to windward; the third race, (if necessary), twenty nautical miles to windward and return; and one week day shall intervene between the conclusion of one race and the starting of the next race. These ocean courses shall be practicable in all parts for vessels of twenty-two feet draught of water and shall be selected by the Club holding the Cup; and these races shall be sailed subject to its rules and sailing regulations so far as the same do not conflict with the provisions of this deed of gift, but without any time allowances whatever. The challenged Club shall not be required to name its representative vessel until at the time agreed upon for the start, but the vessel when named must compete in all the races; and each of such races must be completed within seven hours."

 

For a DoG match, with no constraints other than the min/max waterline limits, you could take an AC75, put a wing on it, and optimize foils without dimensional, functional, or material constraints.

However, there is also that pesky Constructed in Country clause which gets in the way. In a DoG match, if past is precursor to present, CiC will be strictly applied. Ask Larry and Ernesto about this one.

On the CiC issue, iirc then late in the game Oracle challenged even Alinghi’s American-manufactured sails. After EB complained that he’d have to fold if Oracle prevailed in court, LE dropped that part.

Since AC75’s can already hit the wall downwind, upwind is where open design DoG monsters are the most fun to imagine. 

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6 minutes ago, Stingray~ said:

On the CiC issue, iirc then late in the game Oracle challenged even Alinghi’s American-manufactured sails. After EB complained that he’d have to fold if Oracle prevailed in court, LE dropped that part.

Since AC75’s can already hit the wall downwind, upwind is where open design DoG monsters are the most fun to imagine. 

Don't forget that a true DoG match would be on more open water. So I would think they would end up with bigger, foiling multihulls.

But as I say, I don't think it will truly be a DoG match. From Ineos point of view the threat would be enough

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1 minute ago, enigmatically2 said:

Don't forget that a true DoG match would be on more open water. So I would think they would end up with bigger, foiling multihulls.

But as I say, I don't think it will truly be a DoG match. From Ineos point of view the threat would be enough

Agreed on both and for the boats (a fun subject) yes, really-big foiling multihulls with super-powerful wings!  

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24 minutes ago, Stingray~ said:

Agreed on both and for the boats (a fun subject) yes, really-big foiling multihulls with super-powerful wings!  

Well you might see one with Ineos logos. If TNZ is, apparently, too broke for an AC75 defence, I don't see where a foiling DogZilla would be coming from.

 

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43 minutes ago, enigmatically2 said:

But as I say, I don't think it will truly be a DoG match.

I don't think anyone here does. Just a Gedankenexperiment.

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"Burling and Tuke are expected to wait until the Protocol is announced for the 37th America's Cup on November 17th before deciding whether to remain with Emirates Team NZ or accept another option that works for them or step away from the America's Cup altogether."

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1 hour ago, enigmatically2 said:

Don't forget that a true DoG match would be on more open water. So I would think they would end up with bigger, foiling multihulls.

But as I say, I don't think it will truly be a DoG match. From Ineos point of view the threat would be enough

Agree with the threat being enough. TNZ’s got to know that all it would take for INEOS is building a scaled-down copy of SVR - already clocked at 48 kts in the first outings ...

 

30925E80-7647-4181-A614-7FC213A8F313.jpeg

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22 hours ago, porthos said:

On Hamish Ross and the Discrimination Issue:

This will be long, pedantic, and legal.  I apologize for the length; read at your own risk.

Hamish Ross has recently claimed on multiple occasions that, in conjunction with ruling on the viability of RAK as a venue on October 27, 2009, Judge Kornreich likewise established that: (1) the Deed is subject to NY discrimination laws; and (2) any venue for a match must comply with those discrimination laws. Dr. Ross further claimed that this ruling by Judge Kornreich was upheld on appeal, and is thus the law of the cup.1 

One of these claims is probably sort of true but not in the way Dr. Ross thinks it is; the other is patently false (spoiler alert: that makes all the difference).

Up front disclaimer:

Everything Hamish is claiming comes from the transcript of a hearing Judge Kornreich held on October 27, 2009. I do not have a copy of that transcript; however, I can find some references to it (and Hamish restates part of it in his recent posting). If anyone has a copy of that transcript and can send it to me, I would appreciate it. I'm in the process of getting the entire record from the NY courts, but it is going to take a bit.

Quick Background:

SNG announced in August, 2009, that RAK would be the venue for AC33. GGYC filed a motion with the court asking the court to invalidate RAK as a venue on two grounds: (1) RAK was in the northern hemisphere and is not Deed-compliant for a race to be held in February; and (2) RAK was an unsafe location in which to hold AC33. Those were the two grounds -- and the only two grounds -- for the request: location and security. SNG opposed the motion. Judge Kornreich held a hearing on October 27, 2009.

The October 27, 2009 Hearing:

The internet can have a long memory. Here is a page on Marian's old site recounting the hearing:

https://www.bymnews.com/americas-cup-33/dilemma.php

I assume Marian's account is accurate, just as I assume Hamish's recounting of the hearing is accurate. Marian's account is instructive. As expected, GGYC's attorney at the hearing covered the two grounds -- location and security -- for disqualifying RAK. SNG opposed on those grounds, and RAK's attorney talked about how safe RAK was. Critically, nobody talked about discrimination laws, nobody requested any relief based on discrimination laws, and I bet all the money in my pocket against all the money in your pocket that nobody even mentioned discrimination laws in any brief. 

Judge Kornreich addressed the two grounds (location and security) GGYC raised, finding one dispositive of the matter and therefore not needing to address the other.  More specifically, Judge Kornreich found that RAK was not Deed-compliant for a February race because it was in the northern hemisphere.2  Having resolved the matter, Judge Kornreich decided she didn't even need to address and would not address the security issue.3

And then, apparently, out-of-the-blue and after having just indicated she resolved the matter, Judge Kornreich added this (according to Hamish, which again I assume is true)4:

"Again, although not specifically addressed, what I do want to state, and I’m stating this because in the future it may come up, the Deed of Trust requires “friendly competition between foreign nations [sic].”

Now in keeping with this requirement, I believe that any venue – in keeping with this requirement, and also in keeping with the laws of New York and of the United States against discrimination, any venue that is selected must be a venue that permits spectators and competitors from any nation and religion to take part.

I’m just stating for the record, because that would be an issue were any nation or any religion barred from taking part, both as a spectator and as a competitor in any race, in any nation.

This is a Deed of Trust under New York and United States law, and there is no discrimination under our laws." (Underlined emphasis mine.)

Judge Kornreich specifically noted that her statement on the applicability of discrimination laws to the Deed and venues was not addressed by any of the parties. She just raised it on her own after having already resolved the dispute before the court. This commentary clearly was not necessary to decide the issue, as Judge Kornriech disposed of it on the location grounds and specifically indicated that she need not consider anything further.  That will be important.

Contrary to Hamish's claims, Judge Kornreich (as she must under the court rules) issued a written order memorializing her decisions in the wake of the hearing. A copy is attached.5 SNG appealed the order.

The Appeal

The Appellate Division upheld Judge Kornreich's decision that RAK was not a permissible venue for AC33. A copy of the decision is attached. Importantly, the Appellate Division upheld Judge Kornreich's decision on the grounds that RAK is not a Deed-complaint venue because it is in the wrong hemisphere for a February race:

"RAK, which is in the Northern Hemisphere, is not a Deed-compliant location for a February race.

The court never discussed any discrimination issues. The court never discussed any security issues. The court only discussed the hemisphere issue. In fact, the last line of the opinion makes clear that the court found irrelevant every other argument the parties made:

"We have considered the remaining contentions and find them unavailing."

To the extent any of the parties raised the discrimination issue, the Appellate Division found it "unavailing". I'll find out when I get the briefs.  In any event, the Appellate Division clearly affirmed that the only issue that mattered was the location of RAK.

Okay, So What?

Why does all of this matter? Judge Kornreich's commentary on the applicability of discrimination laws to cup venues is quintessential legal dicta.  In the legal world, dicta are any comments by a judge that may be related to the case but are not necessary to decide it. Here is the definition of "dictum" from the NY Court's own website:

"dictum:  A part of a written opinion in a court case that is related to the case, but not needed to decide it.  It can't be used as precedent in future cases."  (Underlined emphasis mine.)6

Judge Kornreich's discrimination commentary came after she already decided the dispute before her on other grounds. In other words, her comments were "related to the case, but not needed to decide it."  As a result, and contrary to Hamish's claim, Judge Kornreich's dicta has no precedential value. Someone can't cite to that in the future as binding on a future court.  This was a throw-away comment. Judges do that sometimes, and our law is clear: a judge can't craft whole new areas of law through mere commentary. And that makes sense.

As the final nail in the coffin, the decision of the Appellate Division specifically noted that the location issue was dispositive of the matter and all other contentions were "unavailing." The Appellate Division > The Supreme Court, and presumably the "other contentions" included the discrimination argument. Or maybe none of the parties even raised it on appeal. Either way, the dispositive opinion is from the Appellate Division and the Appellate Division did not endorse or affirm Judge Kornreich's unsolicited thoughts on whether NY discrimination laws apply to cup venues. 

Where Judge Kornreich's beliefs could have merit would be if future AC litigation somehow ended up in front of her again. She would be free, of course, to continue applying her apparent belief that discrimination laws apply to cup venues. That won't happen, however, because she is retired and no longer on the bench. No future judge is bound by what she said in her dicta.

Simply put, NY discrimination laws, at least at present, do not apply to any cup venues. 

Q.E.D.

--------------------------------------------------------

1I assume Mr. Ross is making these claims now as a precursor to or perhaps foreshadowing of legal action should RNZYS attempt to select a venue in the Middle East (to claim that any ME venue would violate NY discrimination laws and cannot therefore be a venue).

2"Therefore, since RAK is in the Northern Hemisphere, it cannot under the Deed of Trust take place in RAK."

3"The Court, however -- the Court will not comment and does not believe it is appropriate for me to comment, or need I comment at this point, about security and safety." 

4I got this of of Hamish's facebook page.

5In fairness, that written order just references the discussion on record at the hearing. Courts often do this. Nonetheless, Hamish's repeated claim that there was no written order from the court is flat out wrong, as is his repeated claim that the court issued a "judgment". The court issued an order, not a judgment. Are these small things? Yes they are. Are they pedantic? Equally so. But if Hamish can't get the small things right, I'm not sure why I should trust him on the big things.

6Link here: https://nycourts.gov/courthelp/GoingToCourt/glossary.shtml

2009-10-27 Kornreich Order.pdf 45.51 kB · 1 download 2009-12-15 Appellate Division Opinion.pdf 84.66 kB · 0 downloads

Thank you for this great assessment.
And for sending me down Memory Lane. I thought I had an audio recording of this session, but I "only" have the e-mails from our court reporters that I posted here as a relay (the mails, not the reporters). Fun times going through them. The hemi/venue/VLC question indeed was as I remembered, Judge Cahn had assumed MC and Judge Kornreich agreed.

Nothing beats good archives:

 

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