America’s Cup : New Zealand Declines to Take Protest to Jury

With no authority willing to rule on the legality of Stars & Stripes’ catamaran, this America’s Cup seems doomed to continue as an endless series of legal actions interrupted by a couple of inconsequential sailboat races.

Although the best-of-three series is scheduled to start Wednesday, the worst and most likely scenario is that the ultimate winner may not be determined for years.

In the latest development, the San Diego Yacht Club Saturday night tried to urge New Zealand’s Michael Fay to submit his protest against the multihull to the race jury instead of waiting until after the event to return to the New York Supreme Court.

Sunday, Fay refused, a day after jury chairman Goran Petersson of Sweden declined to say whether the jury would even rule on the matter, if asked.

Earlier, Judge Carmen Ciparick of the New York Supreme Court dodged the issue when she told the principals to race, then return to court if a problem remained.

Malin Burnham, president of the Sail America Foundation that is managing the defense for the club, said Sunday: “I think the judge did a very clever and smart move. Judges are human like the rest of us. They want a good record and a good score.

“I think it’s quite clear that Judge Ciparick does not want to lose one of these actions on appeal.” However, eventually someone will have to make a stand. But, it probably won’t be until long after the event.

Fay’s view is that the legality of the catamaran is addressed in the Deed of Gift that governs Cup competition, and that “the jury’s function does not require an interpretation of the Deed of Gift,” only the racing rules.

Burnham disagreed, and said: “If they want to protest, there is an adequate body to do that. There are mechanisms in the IYRU rules to handle it. One is ‘fairness.’ ”

He referred to the first page of the International Yacht Racing Rules, Part I, Paragraph C, which addresses “Fair Sailing: A yacht shall participate . . . only by fair sailing, superior speed and skill, and . . . individual effort.”

Certainly, the catamaran has superior speed over the New Zealand monohull but, according to the rule, that’s OK.

Bill Ficker, who skippered the 12-meter Intrepid in defense of the America’s Cup in 1970, is an International Yacht Racing Union senior judge and believes the catamaran issue is within the jury’s authority.

Ficker is not involved in this event but, contacted at his home in Newport Beach Sunday, cited several points in the IYRU rule book, including Part VI, Rules, Paragraph (e) that defines rules as “any other conditions governing the event.”

Ficker: “I would think the Deed of Gift could be another condition governing the event.”

Ficker also cited Appendix 8, Paragraph 3.8, which lists one function of a jury as dealing with “such matters as may directly affect the fairness of the competition.”

Ficker added: “If I were on that (jury), I would expect to receive a protest and have to make a decision on it. The international jury has plenty of authority to act on almost any kind of protest.

“It would seem to me that Fay would have to protest . . . after the cat goes across the starting line.”

San Diego’s ploy seems to have been to pressure New Zealand into a move that would weaken its court case.

In his Saturday letter to Fay, SDYC Commodore Doug Alford said, “The failure to submit a protest (to the jury) is, of course, a waiver or abandonment of the alleged violation.”

Burnham: “That kind of puts ‘em in a tough spot, doesn’t it? That was the point of the letter.”

Fay: “They’re trying to create a defense of (New Zealand) not exhausting administrative remedies (before returning to court).”

A jury protest could backfire, however, if the catamaran were kicked out.

Asked if Sail America would abide by a jury decision, Burnham replied, “Yes.”

But Sail America, backed by the expertise of executive vice president Tom Ehman, himself an IYRU senior judge, apparently has calculated that the jury would approve the catamaran--and strengthen its case in New York.

But, Ehman added, “I don’t think the Kiwis are going to take it to the jury.”

Said Fay: “The (New Zealand) challenge will not be raising this issue in front of the international jury. (The judge) will have to decide whether the catamaran is a qualified boat.”

America’s Cup Notes

If a race had been scheduled Sunday it would have been postponed to another day. A strong, hot Santa Ana wind was blowing off the desert, meaning that to sail a 20-mile windward-leeward course, the boats would have had to start more than 20 miles offshore, sail toward the beach, then return to finish 20 miles offshore--a logistical nightmare for the race committee. . . . The prevailing wind is a westerly, but if it blows from the south on Friday when a triangular course is scheduled, race manager Terry Harper said, the course would be flopped for starboard roundings (right turns), or else the boats might wind up in Mexico on Rosarito Beach. . . . ESPN’s live coverage will start at 11:30 a.m. on race days Wednesday, Friday and Sunday (if necessary), with the races scheduled at noon. Starts can be delayed to as late as 2:40 p.m., and there is a seven-hour time limit on finishing--meaning the races could finish in the dark. ESPN also will have half-hour recap shows at 9 each night.