S.D. Yacht Club, Sail America Petition : N.Y. Court Is Asked to Intercede in Cup Dispute

The legal wrangling over the America’s Cup continued Friday when the San Diego Yacht Club and the Sail America Foundation--their plans to stage the next Cup regatta in 1991 being held hostage by a maverick challenge from New Zealander Michael Fay--petitioned the New York Supreme Court to intercede.

The petition asks the court, which holds jurisdiction over the Cup’s Deed of Gift--the document outlining the rules governing custody of and racing for the Cup--to uphold the “practices and procedures” that have been followed since 1956, when 12-meter yachts became the uniform vessels used in Cup matches.

Fay, an Auckland merchant banker who sponsored New Zealand’s KZ7 yacht in the last Cup races, has issued a challenge that the Cup races be held next June in boats with a 90-foot waterline instead of a 12-meter. He maintains that he is exercising his rights under the literal terms of the Deed of Gift, a document that is 100 years old.

Got Restraining Order

After filing suit in New York Supreme Court--which, despite the name, is equivalent to California’s Superior Court--Fay last Monday obtained a temporary restraining order preventing the San Diego Yacht Club from planning or publicly discussing its plans. The order put a stop to the formal announcement that San Diego has been selected as the site for the next regatta.

A hearing on Fay’s suit is scheduled for Wednesday in New York. In order to take care of all the outstanding issues at one time, the yacht club and Sail America in their petition have asked the court to consolidate both suits as part of Wednesday’s hearing.

And in yet another legal maneuver, San Diego Mayor Maureen O’Connor announced that the New York attorney general has agreed to intervene in the hearing, most likely on behalf of the yacht club’s interpretation of the Deed of Gift.

City Atty. John Witt and Sail America’s chief operating officer, Thomas F. Ehman Jr., both speaking at a City Hall press conference, said that under New York law, the attorney general is obligated to represent the interests of the public and the possible beneficiaries of a New York charitable trust.

“They are more or less a trustee for the beneficiaries of the Deed of Gift,” explained Witt. The beneficiaries, according to Ehman, include the general public, the international yachting community, the 19 yacht clubs from eight countries that have already challenged for the Cup and the City of San Diego.

Ken Poovey, a San Diego attorney representing Sail America and the yacht club, said following the press conference that he expects New York Atty. Gen. Robert Abrams to embrace San Diego’s position and urge the court to dismiss the New Zealand lawsuit.

Appealed to Mayor Koch

O’Connor said that at the urging of Sail America President Malin Burnham she appealed directly to New York Mayor Ed Koch on Wednesday and asked him to contact the attorney general on her behalf. Additionally, the City of San Diego, although it is not formally a party to the petition filed Friday, has retained a New York law firm to represent the city should it become legally involved, according to Witt.

O’Connor did, however, submit an affidavit in support of the yacht club’s petition in which she described the city’s interest in hosting the Cup races, the various ongoing civic efforts involved in planning for the regatta and the uncertainty now caused by Fay’s lawsuit. “The City of San Diego has no desire to be involved in an event which, through litigation or otherwise, forces a ‘competition’ on bizarre or unfair terms, or one which excludes qualified and interested competitors,” she said in her affidavit.

During the press conference, O’Connor called the New Zealand lawsuit an “unfair and unsportsmanlike action” that if allowed to go unchallenged would “cost the (San Diego) economy hundreds of millions of dollars” because a race next year between a very few competitors would be substantially smaller than a heavily attended regatta in 1991.

O’Connor said she plans to attend the court hearing in New York next Wednesday. She said skipper Dennis Conner and Burnham also would be there. Accompanying the mayor will be Asst. City Atty. Curtis Fitzpatrick.