In a ruling unprecedented in the 138-year history of the America’s Cup, a judge Tuesday said that Dennis Conner and the San Diego Yacht Club violated the spirit of fair competition called for in the Cup’s rules and awarded sailing’s most prestigious trophy to New Zealand.
New York Supreme Court Judge Carmen Ciparick decided that, by racing a catamaran against a monohull last September, San Diego had created a “gross mismatch” not in accordance with the “friendly competition between foreign countries” intended by the author of the 19th Century Deed of Gift governing the race.
The long-awaited decision by the New York court, which has jurisdiction over the interpretation of Cup rules, was a shocking blow not only to the sailing community, but to the city of San Diego, which was expecting a billion-dollar bonanza from hosting the next scheduled Cup regatta in 1991.
Leaders of the both the San Diego Yacht Club and the America’s Cup Organizing Committee (ACOC) criticized the judge for what one high-ranking ACOC member called a legal “flip-flop.” The lawyer representing the yacht club said bluntly: “We’ve been had.”
Those officials gave every indication that they expect to appeal the judge’s ruling, but a decision probably won’t be made until today at the earliest. They said they had to analyze the 14-page ruling and would be guided by “what is best for the America’s Cup.”
Almost from the moment skipper Dennis Conner won the Cup for the San Diego Yacht Club during races off the coast of Fremantle, Australia, in February, 1987, the Cup has been under siege. First there was a months-long controversy over where the next regatta would be held--San Diego or Hawaii--in what amounted to a bidding war, and then merchant banker Michael Fay of New Zealand stepped into the vacuum and issued an unusual one-on-one challenge.
The gambit by Fay sent the contest once determined by sailors at sea into the hands of lawyers and the courtroom.
Fay’s challenge, which called for him to race off the coast of San Diego in a $10-million, 123-foot monohull, was upheld by the New York court in November, 1987, touching off a decision by an angry San Diego Yacht Club and the Sail America Foundation, ACOC’s predecessor, to “dispose” of Fay’s maverick challenge as quickly and efficiently as possible.
What the San Diegans were seeking was a guaranteed victory, and that led Conner and the yacht club to select a 60-foot catamaran, a boat clearly faster than Fay’s monohull. No catamaran had ever raced for the Cup, and the San Diegans defended their unusual choice, which was criticized by many in the yachting world for being unsportsmanlike, as legal under the Cup’s racing rules embodied in the 1887 Deed of Gift.
Last September off Point Loma, the two vessels raced in a best-of-three series. The result was an anti-climactic blowout for the San Diego Yacht Club and Conner, who won the first two races by wide margins. The loss sent Fay back to court.
On Tuesday, Judge Ciparick sharply criticized the San Diego Yacht Club for selecting a catamaran and said the club fell short of its responsibility as a trustee of the Cup. Acknowledging that forfeiture is an extreme remedy, the judge said she had no choice but to turn over the Cup to Fay and his Mercury Bay Boating Club Inc.
‘Aware of Risk’
“San Diego was well aware of the risk it ran when it chose to follow the unprecedented course of defending in a catamaran,” the judge said in her ruling. “Barely paying lip service to the significance of the competition, its clear goal was to retain the Cup at all costs so that it could host a competition on its own terms. San Diego thus violated the spirit of the Deed (of Gift).
According to the judge, “The holder of the America’s Cup is bound to a higher obligation than the victory of the Stanley Cup or the Super Bowl.”
The foundation of Cup racing, since its inception in 1851, the judge wrote, is fair competition, and the use of a catamaran so strayed from that concept, that “accordingly, San Diego shall be disqualified. . . . “
“It is clear that a catamaran may not defend in America’s Cup competition against a monohull.”
The announcement of Ciparick’s decision came at 5:25 a.m. Auckland time and set off impromptu celebrations throughout the city of 1 million, which calls itself “the city of sails” because of the high interest in the sport. Joggers stopped their early-morning exercise to discuss the news, and a fireboat motored into Auckland Harbor to spray its hoses.
Fay, who has devoted himself to a dogged pursuit of the Cup, was awakened by a phone call from aide Alan Sefton, who told him of the decision. Then Fay went for his own morning jog, receiving congratulations from his countrymen along the way.
Fay reacted to his courtroom victory with restrained celebration, saying he expects New Zealand to host a Cup regatta in April, 1991, that will feature yachts from countries throughout the world. Before Tuesday’s ruling, San Diego had also scheduled a Cup regatta off Point Loma for May, 1991, which 25 foreign challengers had already entered.
“San Diego went off on a tangent, if you could say that,” Fay told Radio New Zealand. “Even when we offered to delay the race, they didn’t seem to want to play the game. That was a big disappointment.”
“We have always been strong in our belief about what the Cup meant.” Fay said. “The America’s Cup is the winner. The Deed works.”
Conner was traveling abroad and unreachable for comment. Neither was Malin Burnham, head of the Sail America Foundation, a member of the ACOC and, along with Conner, the principal force behind the victory of the Stars & Stripes yachts in both Fremantle and San Diego.
At a press conference Tuesday afternoon, San Diego Yacht Club Commodore Patrick Goddard and other officials closed ranks behind Conner, saying that, despite the court ruling, the yacht club supports Conner and the decision to race in a catamaran.
“It’s important for me to say that the decision to defend in a catamaran was a joint decision” made by the yacht club and the Sail America Foundation, which was in charge of conducting the regatta and raising money for Stars & Stripes.
“I’m personally proud of Dennis Conner and John Marshall (chief designer of Stars & Stripes),” Goddard said. “I’m personally feeling great disappointment and a great amount of confusion about the judge’s decision.”
He said there are no deep divisions within the club about the use of the catamaran. “We stand as one,” he said.
Mark Smith, one of the attorneys representing the yacht club, criticized the judge for what he said was her reversal in reasoning from earlier Cup decisions involving the club and Fay. “Our feeling is that we’ve been had,” Smith said. “It’s inexplicable to me . . . how she would write what she did.”
He said the club will retain physical custody of the Cup until the appeals process is resolved.
Thomas Ehman, executive vice president of the ACOC, said the judge “has done a 180-degree flip-flop.” He said that, based on her earlier decisions in the matter, “none of us (would) do anything differently.”
Although an appeal seems likely, Ehman said both the yacht club and the ACOC must weigh how “dragging it out” affects the Cup. Ehman noted that, under a new “protocol” agreed to in the last three months among Cup challengers--including the selection of a new America’s Cup racing yacht--the likelihood of future challenges such as Fay’s is now improbable.
Among those most disappointed with Tuesday’s ruling was Gerry Driscoll, a veteran America’s Club sailor from San Diego who served on the America’s Cup Committee, the group formed in 1987 to pick where the next regatta would be held.
It was Driscoll who became the most visible opponent of the yacht club’s decision to race Fay in a catamaran, saying a race between a multihull boat and a monohull boat was both a mismatch and not in keeping with the tradition of yachting. On Tuesday, Driscoll, who owns a boatyard on Shelter Island, said he felt greatly for his yacht club.
“It’s certainly a sad bit of history for the San Diego Yacht Club to write,” he said. He noted that, even though Conner overwhelmed Fay in September, many sailing experts felt the catamaran wasn’t sailed to its potential and could have gone much faster. Of the result, he said, “It was nothing we can be proud of.”
Among those reacting to the ruling was San Diego Mayor Maureen O’Connor, who implied that the judge is a political pawn of the New York Yacht Club, which held custody of the Cup until 1984, when it was captured by Australian Alan Bond.
“I hate to say this decision was politically motivated, but we all know the New York Yacht Club wanted the Cup to go to New Zealand so they could compete for it on foreign soil in 1991,” she said. Under Cup rules, the only way an American yacht club can recapture custody of the Cup is to win it back from a foreign country.
“The decision is unfortunate for San Diego because we stand to lose hundreds of millions of dollars and the international media attention that would go with the race. I hope that the San Diego Yacht Club will vigorously appeal the ruling. . . . “
For others, the loss of the Cup will be felt economically. Tom Armstrong, general manager of Ensenada Express, which chartered boats to both Conner and Fay and the media last September, said that, if the decision stands, “we’ll lose at least . . . $200,000" in business he was anticipating in 1991.
Also contributing to this report were Times staff writers Leonard Bernstein, Chris Kraul and Greg Johnson.