Ruling Over High Seas of Cup Racing

About a year ago, in a burst of misguided public weal, Pepperdine University made me a lawyer--well, they gave me an honorary degree in law, which I took to be the same thing.

Immediately, I began to have this vast sympathy for ax murderers, serial killers, bail jumpers, absconders. I’d always been a law-and-order man, but all of a sudden, defendants all began to look like Joan of Arc or the Prisoner of Shark Island to me. The world as victim. When some guy would refer to that organization as the “American Criminal Liberties Union,” I’d want to fight him.

I could even nod my head in approval when an arbitrator, who would have thrown out a conviction against a guy who killed six nurses because they had no right to arrest him while he was eating breakfast, ruled collusion against baseball owners on evidence that would qualify as hearsay anywhere else in the world of jurisprudence. That’s the way we lawyers work. If they ever caught Jack the Ripper, we would not only have gotten him off, we would have gotten him his knife back.

But what this honor has really done for me is something I have wanted to do all my life. It makes me qualified to cover the America’s Cup yacht race. I can do it in a three-piece suit, carrying a briefcase. I don’t have to get rubber shoes, seasick, wet, cold, scared, claustrophobic, humiliated--all the things a landlubber gets when he gets off the freeway and out onto a greasy deck in a boiling sea.


The America’s Cup is not a race anymore, it’s a suit. It won’t be decided by a spinnaker, it’ll be decided by a writ. Sailors are superfluous. As a matter of fact, so is water. This contest will be adjudicated, not sailed.

So, if you’ll pardon me whilst I get on my black robe and powdered wig, I’ll bring you up to date on this most important naval battle since the Battle of Midway.

You will recall our Dennis Conner, America’s answer to Captain Bligh, went over to Australia last year and walloped the Aussies in their home waters and shanghaied the America’s Cup, which the perfidious Aussies had stolen at Newport, R.I., sporting a mystery keel that any lawyer in the world might have made them disclose before the race, citing the principle of discovery. It was a legal failure, not a nautical.

When Captain Conner won it back, he thought he had retired the trophy for the usual three to five years during which he could bask in its glory and get ready for a multi-nation defense that would be held off Point Loma in the ‘90s and bring in millions in tourist bucks to his city of San Diego.


He reckoned without us lawyers. Along we came, with an Anzac character named Michael Fay, an investment banker who didn’t get rich by ignoring paper work, and he found the only thing any lawyer needs--a piece of paper with a set of ambiguous instructions on it. What every law ever drawn is.

Turns out, the New York State Supreme Court holds the cognizant document (Deed of Gift) on the race, a musty old piece of parchment regulating the America’s Cup competition. A lawyer’s dream. A set of words to twist. A lawyer’s credo, you have to understand, is not found in Blackstone’s, it’s found in Alice In Wonderland. (“When I use a word,” Humpty Dumpty said, “it means just what I choose it to mean--neither more nor less.”)

Michael Fay didn’t have to wait for 1991 or ’92, his not-so-humpty-dumpty legals told him. He could just show up with his boat, and Conner would have to take the water against him.

We lawyers won again. Conner would have no time to build and test a boat to repel Fay’s challenge. (The lawyers found a 10-month limit on the challenge in the fine print.) Fay was going to show up with a 133-foot scratch boat that would be a match for the USS Ticonderoga.


But Captain Conner had his lawyers, too. They decided he could launch any kind of defender boat he wanted. Nowhere in the rules did it say that it had to be single-hulled. (That’s the only kind they had when the America’s Cup was established.)

Captain Conner said he would put a twin-hulled catamaran on the course. The racing establishment reacted as if he had said he was going to race in a U-boat, as if he had just hoisted the Jolly Roger.

A catamaran, you have to know, will beat anything on the water in a downwind slide. I remember years ago when I was sailing in the Ensenada Race, a catamaran (or a trimaran) would make the yacht club sailors gnash their teeth. They barred it from the Ensenada (and the Trans-Pac to Hawaii) race. They said it was too fragile, it would break up in heavy seas. I remember going to Rudy Choy, the resident builder and defiant defender of multi-hulled yachts and saying, “Are catamarans too unsafe?” Rudy was scornful. “No, they’re too fast.” Although they were unofficial competitors, they would beat even the lordly scratch boats like the Morning Star to Hawaii in the Trans-Pac.

Fay’s dreadnought weighs at least 10 times as much as Conner’s catamaran. Beating into the wind, the capital ship may be able to keep the cat in sight. Going downwind, it’ll be a Mike Tyson fight.


If the weather turns foul, the conventional hull has an edge. Fay’s boat could survive Halsey’s Typhoon. A catamaran is little more than a seagoing canoe, held together by lightweight spars and a net for a floor.

But, heavy weather is not the thing to look for in San Diego in September. A more real concern is that the air will be so light, they might not even get in a legal race.

All of this is academic. Because, in the final analysis, it will just be a courtroom drama. We lawyers will let you know who won it sometime next year, when we can get on a docket (or when we get back from Europe). You see, if he loses, Fay is going to sue on the basis that a catamaran is an illegal entry. It’s a little bit like one team showing up for the World Series with aluminum bats or a fighter with loaded gloves. A cat doesn’t exactly sail the sea, it flies it.

The race does not always go to the swift. It goes to the lawyers. At the dock, you don’t get a cup, you get a subpoena. Makes me proud to be a lawyer. Today, the America’s Cup. Tomorrow, the World Series. Hey, if we’d been around, we would have made John Paul Jones give back the Serapis. Illegal search and seizure. Instead of saying, “I have not yet begun to fight,” he should have read them their rights.