New Zealand’s Challenge Beaten Back, for Now : New York Judge Rules San Diego Can Set Date and Site for America’s Cup

Sail America President Malin Burnham wasn’t sure at first, Dennis Conner thought he’d won, but their lawyer Jack Zepp had no doubts at all that New Zealand’s America’s Cup challenge had been sunk, at least temporarily.

“We won today,” said Zepp, after Judge Carmen Beauchamp Ciparick of the New York State Supreme Court ruled Wednesday that:

--The San Diego Yacht Club can proceed with plans to defend the Cup whenever and wherever it chooses. (A week earlier it had planned to announce it would be San Diego in 1991, before the Kiwis obtained a temporary restraining order to stop all preparations.)

--Michael Fay and the Mercury Bay Boating Club of New Zealand shall not intervene in San Diego’s separate petition to amend the Cup’s Deed of Gift to permit the defender, not the challenger, to call the shots on boats and dates.

--Ciparick will consolidate both of those issues and receive further submissions until Sept. 18, then render a final decision as soon as possible.

“That will minimize the tolling I’ll put into the record at this time,” she said.

“Tolling” means the meter is running on extending New Zealand’s challenge date from June 1, 1988, by as many days as it takes her to reach a decision.

In case New Zealand would still win its case to sail in ’88 in a boat measuring 90 feet at the waterline, instead of a conventional 12-meter half the size, that gives San Diego additional time to build a boat that would be competitive with Fay’s new craft.

The crux of the dispute involves interpretation of the 100-year-old deed as written by George L. Schuyler, the last surviving donor of the Cup to the New York Yacht Club.

San Diego maintains that the Cup has grown beyond Schuyler’s original comprehension of the event into a multinational, standard-boat affair, which would have been compatible with Schuyler’s intent for “competition between friendly nations.”

Fay, however, issued his challenge under the letter of the deed, which would allow a challenger to designate the time and the boat he intends to sail.

Since Schuyler died 97 years ago, only three years after writing the deed, nobody can be certain what he intended, so it’s up to Ciparick now.

Conner, who had stopped off in New York en route home from competing in the maxi world championships at Sardinia, was as confused as most of the non-lawyers in the old Supreme Court building in downtown Manhattan.

“But it sounds to me like the judge said, ‘Go ahead with your plans.’ I don’t think she would have said that if she didn’t think things were gonna work out in favor of the (San Diego) Yacht Club.”

New Zealand withdrew its application to extend the temporary restraining order because, Fay said, “The purpose of it was to get the case into court. Now that the judge will decide the case on its merits, we’re satisfied.

“San Diego can go ahead with its plans (for 1991). We’re going to build a (90-foot) boat.”

Fay still hoped he would eventually win out, but Conner noted, “He looked like he had a pretty long face.”

San Diego Mayor Maureen O’Connor also was present, she said, “to look after the city’s interests,” along with assistant city attorney Curtis Fitzpatrick and other aides.

She was delighted that San Diego had been given the green light to proceed with plans.

“They didn’t put any restraints on anything--the site or the date,” she said, “so it looks good for San Diego.”

Burnham made it clear he was representing Sail America but not the SDYC or the club’s America’s Cup committee. Since Sail America will only manage the defense, he said “it’s not up to me” to announce anything.

Unexpectedly, oral arguments lasting 2 hours 12 minutes were conducted in the judge’s closed chambers to reduce the courtroom formalities that could bog down such a complex proceeding.

“We objected to that,” said David G. Samuels, an assistant state attorney general who represented Attorney General Robert Abrams, but he didn’t press the point.

However, at one point Samuels suggested that the judge should dismiss the whole case because it was so frivolous that it was a waste of the court’s time.

Abrams’ office was involved because of the nature of the Deed of Gift, which is regarded as a charitable trust. On Tuesday Abrams held a press conference to throw his support behind San Diego.

Fay’s lawyer, George N. Tompkins Jr. of New York, objected to that.

“The attorney general’s part is to protect the interests of the beneficiaries of the trust, which is the general public,” Tompkins said. “Instead, he’s protecting San Diego’s interest.”

Both sides came armed with public relations people and lawyers, but San Diego had better numbers. San Diego’s cause was carried by six lawyers representing the city and Sail America. Zepp, from the New York branch of Latham and Watkins, was the principal attorney, but he generally deferred to Samuels.

After a 2 1/2-hour lunch recess, Ciparick announced her decisions. Her final findings are expected by the end of the month.