Judge Rules in Favor of New Zealand America’s Cup Challenge

New Zealand’s challenge to sail the America’s Cup in a new super boat in 1988 was declared valid Wednesday by the New York Supreme Court.

A 19-page ruling by Judge Carmen Beauchamp Ciparick upheld the literal terms of George L. Schuyler’s simpler 2 1/2-page, 100-year-old Deed of Gift that has governed conditions of Cup competition since he wrote it in 1887.

Ciparick saw no reason to change it now.

The San Diego Yacht Club, which thought otherwise, is now left with three choices, as stated by Ciparick:

“In face of a properly tendered challenge, the San Diego Yacht Club, having accepted the Cup pursuant to the terms of the deed, may either accept the challenge, forfeit the Cup, or negotiate agreeable terms with the challenger.”

The Sail American Foundation, which will manage the next defense, issued a statement quoting Chief Executive Officer Malin Burnham:

“I am disappointed by today’s decision. We are evaluating the ruling. We will stand true to our obligations and will determine the best course for this city, the Cup and its competitors.”

Fred Frye, commodore of the San Diego Yacht Club, said: “The yacht club is firm in its resolve to defend the Cup successfully, whenever it is necessary.”

A spokesman said that Sail America officials are scheduled to meet today and will announce plans in the next few days.

The man behind the upheaval is Michael Fay, an Auckland merchant banker who backed New Zealand’s first America’s Cup effort last year. Until Fay came along, challengers had accepted whatever conditions were set down by the defenders, ignoring their rights as stated in the deed.

Fay said Wednesday from New Zealand: “The court’s very considered and complete judgment clearly vindicates the New Zealand interpretation of the deed and supports everything we have viewed as the essence and tradition of the Cup.

“We went to court reluctantly to prove our right to sail for the Cup and to protect the right of challengers. Despite this favorable ruling, the real event and challenge for New Zealand is to win on the water in San Diego next year.

“This will be a match between the most thrilling racing yachts in history and the whole world will be watching to see the outcome on American waters.”

Earlier, Sail America had claimed Fay was shutting out other challengers, but Fay said he would welcome anyone else who wanted to build a special boat. Australia’s Alan Bond and Britain’s Peter DeSavary apparently already are.

Since the deed allows the challenger to dictate the time--”10 months’ notice in writing”--the first race could be conducted as early as next Sept. 25, presumably off San Diego.

Now, Ciparik said, the clock is running again.

That could discourage the San Diego defenders from appealing the ruling because time is limited for building a boat that involves so much new technology.

The deed requires a challenger to declare the dimensions of his boat. Fay said his would measure 90 feet at the waterline--the maximum allowed by the deed.

It was learned later that the material will be fiberglass, the same as the New Zealand 12-meters that shook up the America’s Cup community at Fremantle, Western Australia, a year ago.

Fay started building his boat shortly after his challenge and said this week that it is scheduled to be launched March 27.

The defender can build any kind of boat it wants to, within the parameters of the deed, and doesn’t have to reveal its entry “until at a time agreed upon for the start.”

However, anything less than 90 feet at the waterline might not be competitive with New Zealand--and the deed would allow a boat up to 115 feet at the waterline “if (the boat is) of more than one mast.”

San Diego interests had hinted that if Fay won the case, they would build an even larger boat with two masts.

All of this was anticipated by Schuyler, the last surviving donor of the Cup, when he turned it over to the custody of the New York Yacht Club. He set down the conditions hoping to avert disputes such as this.

The defender would not necessarily be Dennis Conner, who won the Cup for the San Diego Yacht Club at Fremantle. He would have to survive an elimination series first.

The Sail America Foundation, which will manage the defense, had planned to have it in 12-meters in 1991 and recently announced a list of 18 challengers from 10 countries, each paying a $25,000 entry fee.

Challengers were assured their money would be refunded if Fay won his case.

Ciparick also stated in her ruling that “San Diego has failed to support its contentions that the Mercury Bay Challenge (by Fay) will hurt the level of competition for the Cup. Further, applying the relevant standard, the court finds that the San Diego Yacht club has failed to make the required showing to justify making truly radical and fundamental changes in the deed.”

San Diego had protested that the new Cup tradition had been established in the last 30 years by having three or four years between defenses, and that building boats larger than 12-meters would be too expensive for some potential challengers.

Ciparick didn’t buy it.

Racing 90-footers every 10 months, she said, “may turn out to be more economical, given the shorter interval proposed between competitions.”

In addition, although she is not a sailor herself, she said that larger yachts may make more sense because of San Diego’s notorious “light winds.”

Tom Ehman, Sail America’s executive director, hinted at moving the competition to a strong-wind venue, such as Hawaii, and leaving New Zealand stuck with a light-wind boat.

New Zealand spokesman Peter Debreceney said, however, that any change in location could only be made with Fay’s approval.

Fay announced earlier this week that he would have his boat in San Diego for tuneup sailing in May.

“Pretty strange,” Ehman said. “More New Zealand bluster.”