‘Dirty Tricks’ at Sea? : Having Won Case, Fay Must Now Be Concerned About Terms of America’s Cup Defense

While the San Diego Yacht Club and the Sail America Foundation squabbled over control of the America’s Cup, New Zealand’s Michael Fay sailed a boat with a 90-foot water line through the breach.

Now Fay is the one concerned about what he calls possible “dirty tricks” by San Diego to beat back his challenge.

Although Fay has won his case seeking a 1988 Cup challenge in a boat with a 90-foot waterline as permitted in the express terms of the 100-year-old Deed of Gift that governs Cup competition, he may find that the deed is a double-edged sword that San Diego can now turn against him.

Nowhere in the deed does it say what kind of boat the defender must sail or where he must sail it. As a result, San Diego is hinting at building a catamaran to defend the Cup, not in the mild zephyrs off San Diego but off Hawaii, where Fay’s declared entry--already within days of completion--figures to be blown away.

In moderate-to-strong wind conditions, a mono-hull is too heavy to be competitive with a twin hull of comparable size.

Would San Diego really do that?

Sail America has scheduled a press conference next Wednesday “to sort it all out.”

Meanwhile, Fay conducted a global press conference via satellite hookup Friday, appearing on screen to answer questions from reporters in Los Angeles, New York and London.

“This is a question of, hopefully, not seeing the Cup, or anybody suggesting it should, go into the dirty-tricks department,” Fay said.

“The challenger has now, under the Deed of Gift, picked the class of boat for the next America’s Cup. San Diego, in essence, must sail in that class of boat.

“When you read the Deed of Gift you will see that it’s quite clear that a multihull is indeed not contemplated by the deed. Naturally, New Zealand looked at that as an option. Our advice and our considered opinion is that it is not allowed.

“The tradition of the Cup is not about multihulls, and we don’t think anybody in the world would like to see the America’s Cup sailed in multihulls.”

Earlier, it was San Diego talking about the “tradition” of the Cup, while Fay leaned on the deed. Now, apparently, the strategy has switched.

Dr. Fred Frye, commodore of the San Diego Yacht Club, was contacted later and disputed Fay’s points.

“Mr. Fay told us what his boat is all about,” Frye said. “We’re under no obligation to tell him what our boat is all about. We can just show up on the starting line in whatever we want.

“Sail America and the yacht club have not been sitting on our hands since this challenge was given on July 15. While we do not have a boat under construction, it hasn’t been that we haven’t been thinking about what we might build.”

Indeed, in issuing her judgment Wednesday, New York Supreme Court Judge Carmen Beauchamp Ciparick quoted the Deed of Gift: “The challenger is given the right to designate the size or dimensions of its boat within the limits of the deed . . . “

The inference is that the defender can sail anything it wants, within the water line limits of 45 to 90 feet.

Fay, in fact, declared the maximum 90 feet to assure that San Diego couldn’t build a bigger, faster boat. But the deed also allows for boats with water lines up to 115 feet “if of more than one mast.”

Yawls, schooners and ketches--conventional boats with more than one mast--are not practical for closed-course racing, but what’s to keep San Diego from building a 115-foot mono-hull sloop with one mast and sticking a broomstick on the stern and calling it a second mast?

Judge Ciparick wrote in her 19-page ruling that although no challenger had ever challenged the conditions of competition, the San Diego Yacht Club left itself wide open “by disagreements with its contractual agent for the defense of the cup, Sail America Foundation, on how the defense should be handled. In the interim . . . Mercury Bay issued the disputed challenge.”

Clearly, the dispute isn’t over yet. The sides also disagree now on where the Cup must be sailed.

Fay said: “We consent that San Diego Yacht Club could move to another venue. However, at the practical level, San Diego has announced where it will defend the next America’s Cup.”

Frye said: “That applies to 12-meters in 1991. The (1988) venue is not decided and will not be decided and will not be announced until we choose to.”

The deed makes no reference to the site, except, as Ciparick noted, “the holder-defender has the right to set the courses.”

Fay said: “I don’t believe the Sail America Foundation or the yacht club would find the solution to a challenge from New Zealand was now to move away from San Diego . . . on the basis they couldn’t defend successfully in San Diego.

“The issue of venue is one the judge does touch on, and when you read the Deed of Gift and look at tradition and the circumstances around the Cup, you will find it is not contemplated that the Cup is sailed anywhere other than around the local yacht club.”

Except that the New York Yacht Club chose to hold it off Newport, R.I., for many years until Australia took it away in 1983.

Frye said that if Fay gets stuck with a non-competitive boat, he has only himself to blame for leading the Cup away from conventional 12-meters--the smallest boats permitted under the deed--to the largest allowed.

“Mr. Fay opened this up to an open classification,” Frye said.

Fay said: “The logic of a big boat for San Diego was obvious, given the (light-wind) conditions there. The opportunity to move away from 12-meters, and (New Zealand) being current world champion after having won the 12-meter contest in Sardinia, I think we’re qualified to say that we doubt the ultimate success of a 12-meter regatta in San Diego.

“The 12-meter boat is not a boat that sails well in light airs (and therefore) it would be difficult to maintain a high level of public interest.”

Finally, Fay insisted it was now San Diego, not New Zealand, that was trying to exclude other competitors.

“I encourage San Diego, as indeed they encouraged us publicly over the last few weeks, to put the legal contest behind us, to get onto the water and defend the Cup against New Zealand and any other challenger that could be there for the match in 1988,” Fay said.

“New Zealand has given a commitment to Britain and Australia and the French syndicate, that if they are at San Diego in 1988, we are prepared to sail off against any other challenger. The winner of such sail-off can take New Zealand’s place as challenger.”

Fay said British and Australian syndicates are building the larger boats, and that France and Japan have shown interest.

But even the dates are not clear. The deed stipulates 10 months from the challenge, which was issued July 15, but it’s not clear when the clock stopped during Judge Ciparick’s 2 1/2-month deliberation or whether it will be restarted from scratch.

Fay says the first race will be Aug. 29, after eliminations.

Frye said, “We’re not clear on that. We do not know when the tolling time starts. According to the judge’s ruling, it looks like the tolling time starts at the time the order is issued, and the order has not been issued.”

He meant that San Diego had not received official notification of Ciparick’s ruling.

Fay said: “We have picked our boat. We have picked our time. Those obviously would not be negotiable points. We are open to negotiation on any (other) point.”