America’s Cup : Fay’s Court Order Puts a Damper on Sail America’s Day

America’s Cup officials said Wednesday they are confident they can sink New Zealand’s extraordinary challenge in a hearing before the New York State Supreme Court next week.

Auckland merchant banker Michael Fay has challenged to sail for the Cup next June in a boat with a 90-foot waterline, instead of a 12-meter three or four years from now, as would be customary for postwar Cup competition.

President Malin Burnham of Sail America Foundation said, “It is our contention that Fay’s challenge does not even begin to hold water.”

Even Burnham had to smile at his remark, but it wasn’t as happy an occasion as originally was anticipated. On Monday, while the media was being alerted to the press conference at the San Diego Yacht Club to learn the site and dates of the next defense--San Diego in the spring or fall of 1991--Fay’s American lawyers were obtaining a temporary restraining order in New York to prevent further planning or public discussion of their plans.

So, instead of banners and balloons, it was a day for posturing, pontificating and unintentional puns, the sum of which was that Fay was being a poor sport in a gentleman’s game.

While not disputing that Fay’s challenge under the aegis of the Mercury Bay Boating Club--”I had never heard of the Mercury Bay Boating Club,” Burnham said--complied with the basic terms of the 100-year-old Deed of Gift that governs the Cup, yacht club and Sail America officials maintained that latter-day “enabling resolutions” should override the original stipulations.

“You should not isolate your thinking to that (original) document,” Burnham said.

Instead, he frequently referred to the deed as the “living Deed of Gift,” implying an ongoing interpretation of its conditions.

Although reporters were provided no physical evidence of those enabling resolutions, Burnham cited three that would preclude Fay’s challenge.

One, he said, calls for multinational challenges and another stipulates that the event “should not be contested annually (and) they proposed that the contest would not take place more often than each three years.”

Fay has said his challenge should be considered first because it was submitted first, July 17, but Burnham had an enabling resolution answer to that, too.

“It was determined by the New York Yacht Club in another enabling resolution that any challenge received within six months of the last race would be deemed to have been received at an equal time of all other challenges received within that same six-month period,” Burnham said. “That period expired Aug. 4, prior to which we had numerous challenges from around the world. Mr. Fay is now asking us to take his out of the heap and treat it in a preferential manner.”

Burnham is a former world-class sailor with deep roots in San Diego and wealth generated through three generations of real estate and insurance business. The Fay challenge is an emotional issue for him.

“We haven’t taken the gloves off yet,” he said. “We will if we have to.”

But he wasn’t pulling many punches, either, Wednesday. After his formal remarks, he spotted Laurent Esquier, who as the operations director for Fay’s syndicate has been in San Diego for a few weeks checking out possible sites for 1988.

“Say hello to Sir Hemorrhoid for me,” Burnham told Esquier.

“Who?” Esquier said.

“Fay,” Burnham said. “That’s what the Europeans are calling him. They say he’s a royal pain in the . . . “

Burnham said that Sail America had “14 signed affidavits from (syndicates) around the world” who want to sail in 12-meters in ‘91, not in bigger boats in ’88.

He said the America’s Cup should be contested as are the Olympic Games and World Cup soccer, “Open to all nations, all competitors, while (Fay’s proposal) would eliminate 90% of the potential entrants.”

John Marshall, the Sail America trustee who was the design team director for the successful Stars & Stripes campaign, said something good may come from the New Zealand challenge.

“Malin’s on record in view of the unsportsmanlike position that Fay has taken, but when something like that is hanging over an event it does cast a shadow,” Marshall said. “Clearing this thing up and getting vindication for Sail America’s position as trustee is important. The quicker the better. It’s in no one’s interest to drag it on.”