Emirates Team New Zealand.

Rennmaus

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Full text: 
Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match of this 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.”

A literal interpretation of this clause might be that once a challenge has been accepted, anyone can join and race in the AC, not CSS (the absence of the latter is what the rumoured row about the RYS challenge seems to be about). 

But usual rules of interpretation require you to look at the context and intent of the document – both of which speak to a match race between defender and challenger, not a free for all where any club can enter a yacht provided the other criteria are met.  

So, this clause would seem to pertain to the qualities of the Challenging Club, which may be one of “any organized Yacht Club” meeting all the other criteria.  

I don’t see how favouring the AC75 would be in breach of this clause. 
 
Looks like a misunderstanding. 
I deliberately left out all the stuff that is unnecessary for my question, but I will rephrase my question.

This is the Deed provision:

"Any organized Yacht Club of a foreign country,... , shall always be entitled to the right of sailing a match of this Cup, ..."

This is the situation (just a "what if":
An agreement between the Defender (RNZYS) and possible challengers (RYS, NYYC, CVS,...) says that whoever wins AC37 shall favor a challenger for AC38 that will use the AC75s.

This is the question:
Apart from the clause that AC38 cannot be handled in the AC37 protocol, would above agreement unlawfully exclude (= not favor) prospective challengers that do NOT want to keep the AC75s?

IOW, will this agreement stipulate that the "Rennmaus Yacht Club" (that has somehow circumvented the hip pocket hand-over of the AC38 challenge by RYS) will never have a chance to be accepted as challenger, because it wants TP52s as boats?

 
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Looks like a misunderstanding. 
I deliberately left out all the stuff that is unnecessary for my question, but I will rephrase my question.

This is the Deed provision:

"Any organized Yacht Club of a foreign country,... , shall always be entitled to the right of sailing a match of this Cup, ..."

This is the situation (just a "what if":
An agreement between the Defender (RNZYS) and possible challengers (RYS, NYYC, CVS,...) says that whoever wins AC37 shall favor a challenger for AC38 that will use the AC75s.

This is the question:
Apart from the clause that AC38 cannot be handled in the AC37 protocol, would above agreement unlawfully exclude (= not favor) prospective challengers that do NOT want to keep the AC75s?

IOW, will this agreement stipulate that the "Rennmaus Yacht Club" (that has somehow circumvented the hip pocket hand-over of the AC38 challenge by RYS) will never have a chance to be accepted as challenger, because it wants TP52s as boats?
Right. I thought that I had misunderstood after re-reading my text, which is why I edited it to cut out the other parts. 

So, the question is whether the "favouring AC75" clause is a breach of the "any YC" clause, right? The "favouring AC75" clause might dissuade TP52-inclined challengers or whatever other hypothetical. I could be dead wrong on this, but I'd think you need more restrictive language, such as "no challenges other than those premised on the use of an AC75 shall be considered for AC38." 

 

MR.CLEAN

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“Favoring” doesn’t mean anything in this context. Monetary penalties are immaterial too. All that matters is timing and validity of the first challenge received following the winning of the cup match. 
 

and the only way you’re gonna beat a hip pocket challenge is with a very slick drone delivery to an unsuspecting commodore on the official RNZYS tender. 

 
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Rennmaus

Super Anarchist
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“Favoring” doesn’t mean anything in this context. Monetary penalties are immaterial too. All that matters is timing and validity of the first challenge received following the winning of the cup match. 
 

and the only way you’re gonna beat a hip pocket challenge is with a very slick drone delivery to an unsuspecting commodore on the official RNZYS tender. 
Haha, thanks  thumbs-up-sign_1f44d.png

 

timmytwinstay

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[SIZE=12pt]What if the board of directors of a yacht club which met the qualifications of a challenger under the Deed of Gift, for themselves and through their agents, put forth commercially reasonable efforts in multiple ways as they attempted to present a legitimate challenge to the Royal New Zealand Yacht Squadron et al., immediately after Te Rehutai crossed the finish line on March 17, 2021.  [/SIZE]If this yacht club were unsuccessful in its efforts to be the first to present such challenge because it was frustrated/thwarted by the actions of Royal New Zealand Yacht Squadron et al., in ways that could be well documented, do you think a complaint could be filed in the New York Court of appropriate jurisdiction in the near future.

 

Blitzkrieg9

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[SIZE=12pt] because it was frustrated/thwarted by the actions of Royal New Zealand Yacht Squadron et al., in ways that could be well documented, [/SIZE]
It is well documented and there is nothing to be done about it. In one article a guy from the RNZYS mentioned that they locked the doors, shutdown the email server, and took the phones off the hook.  So what?  Its their private property. You have to right contact them if they don't want to be contacted. 

Then, the commodore sequestered himself on a boat with the RYS commodore.  So what?  You have no right to trespass on their vessel.  

The only valid complaint you could have is if they DIDN'T take these precautions, and you walked up and handed them a challenge and they refused to accept it. In that case, the NYSC would probably consider that they have been "served notice".

 
99
65
“Favoring” doesn’t mean anything in this context. Monetary penalties are immaterial too. All that matters is timing and validity of the first challenge received following the winning of the cup match. 
 

and the only way you’re gonna beat a hip pocket challenge is with a very slick drone delivery to an unsuspecting commodore on the official RNZYS tender. 
I think the argument would be that "favouring" affects the validity of the challenge. I don't think that it does, but that's what I understand the gripe to be. 

 

timmytwinstay

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It is well documented and there is nothing to be done about it. In one article a guy from the RNZYS mentioned that they locked the doors, shutdown the email server, and took the phones off the hook.  So what?  Its their private property. You have to right contact them if they don't want to be contacted. 

Then, the commodore sequestered himself on a boat with the RYS commodore.  So what?  You have no right to trespass on their vessel.  

The only valid complaint you could have is if they DIDN'T take these precautions, and you walked up and handed them a challenge and they refused to accept it. In that case, the NYSC would probably consider that they have been "served notice".
[SIZE=12pt]All of your examples and more are applicable.  [/SIZE]However, because The Deed of Gift is technically administered as a public trust under the laws of the State of New York, the applicable statues are different than the statues private individuals/enterprise must comply with and this has the effect of turning “So what” into a cause of action.

 

Blitzkrieg9

Member
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[SIZE=12pt]All of your examples and more are applicable.  [/SIZE]However, because The Deed of Gift is technically administered as a public trust under the laws of the State of New York, the applicable statues are different than the statues private individuals/enterprise must comply with and this has the effect of turning “So what” into a cause of action.
Interesting point!  I have no idea what the NYSC would feel about a trustee purposely making himself unavailable to the beneficiaries of said trust.  I hadn't thought of it like that! 

 

Rennmaus

Super Anarchist
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[SIZE=12pt]What if the board of directors of a yacht club which met the qualifications of a challenger under the Deed of Gift, for themselves and through their agents, put forth commercially reasonable efforts in multiple ways as they attempted to present a legitimate challenge to the Royal New Zealand Yacht Squadron et al., immediately after Te Rehutai crossed the finish line on March 17, 2021.  [/SIZE]If this yacht club were unsuccessful in its efforts to be the first to present such challenge because it was frustrated/thwarted by the actions of Royal New Zealand Yacht Squadron et al., in ways that could be well documented, do you think a complaint could be filed in the New York Court of appropriate jurisdiction in the near future.
Wow, I would like that to be contested at the NYSC! It could be the death of the hip pocket challenge. Unfortunately, it would delay the respective race for the Cup, so another law suit wouldn't do any immediate good.  

[SIZE=12pt]All of your examples and more are applicable.  [/SIZE]However, because The Deed of Gift is technically administered as a public trust under the laws of the State of New York, the applicable statues are different than the statues private individuals/enterprise must comply with and this has the effect of turning “So what” into a cause of action.
Agreed. As I learned yesterday, all eligible YCs are beneficiaries of the AC trust. So a trustee that is not available for the beneficiaries at the moment one of the most important duties of the trustee is performed... Yes, very interesting.

 

jaysper

Super Anarchist
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Wellington
Wow, I would like that to be contested at the NYSC! It could be the death of the hip pocket challenge. Unfortunately, it would delay the respective race for the Cup, so another law suit wouldn't do any immediate good.  

Agreed. As I learned yesterday, all eligible YCs are beneficiaries of the AC trust. So a trustee that is not available for the beneficiaries at the moment one of the most important duties of the trustee is performed... Yes, very interesting.
Easy work around.

No trustee must be available for the beneficiaries 24x7.

So all the YC needs to do is take it's communications systems down for "scheduled maintenance" and have the commodore play cards with the hip pocket challenger somewhere quiet and private.

You can argue till you are blue in the face about the real intent, but I think you'd be well and truly fucked.

 

Rennmaus

Super Anarchist
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Easy work around.

No trustee must be available for the beneficiaries 24x7.

So all the YC needs to do is take it's communications systems down for "scheduled maintenance" and have the commodore play cards with the hip pocket challenger somewhere quiet and private.

You can argue till you are blue in the face about the real intent, but I think you'd be well and truly fucked.
That's how it's been done, yes. And never questioned.

 

timmytwinstay

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[SIZE=12pt]Such a tactic may work where you practice, however, New York law places unusual standards upon the operations of a public trust.  [/SIZE]Therefore, do not be surprised if the court rules against the defender, replaces the challenger of record with the yacht club whose legitimate yet unsuccessful challenge was frustrated/thwarted by the actions of the defender, and imposes a method of accepting challenges upon future defenders so this matter does not come before the court again.

 
G

Guest

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ETNZ are being a bit tricky, in the local press;

In sum, Emirates has made a major commitment to Portsmouth/Isle of Wight as a sailing centre of excellence – and voila, that’s where the next challenger of record is coming from, and where the next Cup contest could well be sailed. Such incredible luck for Emirates, right? Over on the other side of the table, Emirates also retains naming rights for the New Zealand team. Can anyone doubt that the crucial inputs as to the when and where of the next America’s Cup challenge are likely to be made by Emirates, and not by anyone in New Zealand? That process seems already under way. By “accepting” the British Royal Yacht Squad Racing as the challenger of record, the New Zealand holders have enabled Emirates to skip the trouble of bothering themselves with funding another qualifying regatta.

At the time of Emirates’ initial involvement with Portsmouth, Sir Tim Clark, President of Emirates airline, said: “Emirates is proud to expand its commitment to the United Kingdom, which we service with over 130 weekly flights, by bringing world-class sailing boats to the shores of the UK and giving Portsmouth City the chance to host and show its visitors the most sensational event in the sailing calendar.”
Who knew that having a shady Sheik from a pretty repressive country as the main sponsor was a deal with the devil

 

aucklander

Anarchist
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Auckland
[SIZE=12pt]Such a tactic may work where you practice, however, New York law places unusual standards upon the operations of a public trust.  [/SIZE]Therefore, do not be surprised if the court rules against the defender, replaces the challenger of record with the yacht club whose legitimate yet unsuccessful challenge was frustrated/thwarted by the actions of the defender, and imposes a method of accepting challenges upon future defenders so this matter does not come before the court again.
This is really interesting and I can see your argument.  If this outcome were to happen, that hip pocket challenges were deemed not defendable - how would courts rule when there were multiple challenges that all met requirements?  It seems that the hip pocket challenge is the most logical way to establish the first to the gate.

 

timmytwinstay

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[SIZE=12pt]The New York Supreme Court has a no nonsense tradition that goes back centuries, and the maneuvering that can take place in other jurisdictions is mostly absent.  [/SIZE]In a case such as this, the court will look at the evidence, hear testimony, review the four corners of the Deed of Gift, the law, and previous rulings.  If other “challengers” are allowed joinder (which the plaintiff would likely oppose) then their evidence will be heard.  The court will then make a well-reasoned ruling (that uses its typical economy of words) which places public benefit at the forefront of the decision and everything else a distant secondary consideration.  If your case is righteous, no matter how complicated or contentious, you want the New York Supreme Court to hear it. 

 

MR.CLEAN

Moderator
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[SIZE=12pt]The New York Supreme Court has a no nonsense tradition that goes back centuries, and the maneuvering that can take place in other jurisdictions is mostly absent.  [/SIZE]In a case such as this, the court will look at the evidence, hear testimony, review the four corners of the Deed of Gift, the law, and previous rulings.  If other “challengers” are allowed joinder (which the plaintiff would likely oppose) then their evidence will be heard.  The court will then make a well-reasoned ruling (that uses its typical economy of words) which places public benefit at the forefront of the decision and everything else a distant secondary consideration.  If your case is righteous, no matter how complicated or contentious, you want the New York Supreme Court to hear it. 
You started strong but ended up hip deep in bullshit and hyperbole. 

The court has very clearly and unanimously explained, most recently in 2009,  that it is not the arbiter of the content, fairness or practicability of any challenge so long as it meets the threshold requirements of the deed.  It’s a checklist, and it doesn’t include any room for some bullshit about commercial practice or someone’s legitimate challenge received second in time. Dem judges don’t care. 

 

45Roller

Super Anarchist
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Ireland
[SIZE=12pt]The New York Supreme Court has a no nonsense tradition that goes back centuries, and the maneuvering that can take place in other jurisdictions is mostly absent.  [/SIZE]In a case such as this, the court will look at the evidence, hear testimony, review the four corners of the Deed of Gift, the law, and previous rulings.  If other “challengers” are allowed joinder (which the plaintiff would likely oppose) then their evidence will be heard.  The court will then make a well-reasoned ruling (that uses its typical economy of words) which places public benefit at the forefront of the decision and everything else a distant secondary consideration.  If your case is righteous, no matter how complicated or contentious, you want the New York Supreme Court to hear it. 
Do you know @billy backstay? I think you could be good friends  

 


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