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San Diego Loses Its Gamble on America’s Cup

Times Staff Writer

The Sail America Foundation rolled the dice for the San Diego Yacht Club and lost.

Gambling that a catamaran would be deemed a legal defender of the America’s Cup, although the challenger had declared his intent to sail a monohull, the group that ran last September’s defense hoped to ride a sure thing, dispose of New Zealand’s major nuisance and protect its stake in a 1991 defense that projections said would generate $1.2 billion in revenue for the city.

“The stakes were high,” Mark Smith, a lawyer representing the San Diego Yacht Club, said Tuesday.

Instead, New York Supreme Court Justice Carmen Ciparick ruled Tuesday that catamarans vs. monohulls was not what George Schuyler had in mind when he transferred custody of the America’s Cup to the New York Yacht Club under terms of a Deed of Gift in 1887.

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Unless there is a successful appeal by San Diego, the judge’s ruling will result in the Cup being awarded to New Zealand’s Mercury Bay Boating Club.

While the deed does not specifically prohibit catamarans, Ciparick wrote in her 14-page decision that “it is clear that a catamaran may not defend an America’s Cup competition against a monohull.”

She said the San Diegans “violated the spirit” of the rules and “the donor’s primary purpose of fostering friendly competition.

“The holder of the America’s Cup is bound to a higher obligation than the victor of the Stanley Cup or the Super Bowl,” the ruling stated.

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“The court is mindful that forfeiture is a drastic remedy in the instance of a competition such as the America’s Cup, with its large economic significance and prestige. Nonetheless, the parties neither seek or suggest any alternative relief upon the disqualification of a competitor, nor is any alternative relief feasible under the circumstances.”

Ciparick found that last September’s defense at San Diego in which Dennis Conner sailed the 60-foot catamaran to two easy victories over the 123-foot monohull was a “gross mismatch.” That was the principal contention of Michael Fay, the Auckland merchant banker who has funded and directed New Zealand’s America’s Cup program.

Fay said of the decision: “The America’s Cup wins. The Deed works.”

He also said that, barring appeals or other delays, the next defense would be staged at Auckland starting in April of 1991.

The decision might make little difference to the 25 syndicates from 11 countries that have filed challenges for ’91, because there is an informal understanding that the challenges will be transferred to New Zealand, which also was preparing to stage a defense.

But it could make a major difference to U.S. sailing interests outside San Diego, such as ’87 challenger Tom Blackaller of San Francisco, who had no motivation to compete to defend the Cup for the San Diego Yacht Club. This way, any American club or syndicate may challenge New Zealand directly, just as San Diego challenged the Royal Perth Yacht Club at Fremantle, Australia, when Conner brought the Cup back to the United States in 1987.

Peter Isler was Conner’s navigator at Fremantle and subsequently was an employee at DC Sports Inc., Conner’s marketing arm, but Isler recently left to form his own company and syndicate to compete for the right to defend the Cup in 1991. Now, Isler said, he will become a challenger.

“I am personally extremely disappointed at the decision, but am prepared to do what we have to to win the Cup back for the U.S.,” Isler said. “If we have to go overseas to win the Cup back, then that’s what we’ll do.”

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Fay first surprised the San Diego Yacht Club with his challenge in July of 1987, citing terms of the Deed of Gift which stipulated that a challenger need not wait to be asked, and could even name the date and what kind of boat he would sail. Fay’s inference from the deed was that the defender would have to sail the same kind of boat, not necessarily one of the customary 12-meters.

Fay declared that he would sail a monohull measuring 90 feet at the waterline, the largest boat permitted by the Deed. When San Diego ignored his initial challenge, Fay went to court and won.

When San Diego indicated it would meet him in a catamaran, Fay went back to court. At that time, Ciparick ruled that Fay’s group would have to first compete in the event because the Deed said the defender did not have to declare his boat until the time of the first race. Therefore, San Diego’s entry was unofficial right up to the gun.

But, after the September races, Fay went back to court a third time, and this time Ciparick’s ruling was in Fay’s favor.

Since the sailing ship “America” first brought the Cup to the United States from Great Britain in 1851, the Cup has never changed hands through litigation. In fact, through its first 133 years, it never changed hands at all, until Australia’s Alan Bond wrested it from the New York Yacht Club in 1983.

Sail America interests explained their choice of a catamaran by stating that when the decision had to be made, they still did not know enough about Fay’s boat to think they could beat it with a conventional monohull, so they opted for the radical sure thing.

Some club members warned of the legal risk involved, but Sail America’s lawyers advised them they were on solid ground.

“The Deed makes no design constraints,” Smith said Tuesday. “The judge said, ‘The vessels should be evenly matched.’ We don’t know what that means.”

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At a press conference Tuesday, Smith spent about 15 minutes attempting to justify San Diego’s legal position and challenging Ciparick’s judgment--indications that San Diego will appeal.

San Diego had accused Fay of trying to win the America’s Cup in the courts after he was unable to win it on the water at Fremantle. Fay said a year ago this month in an appearance at the California Yacht Club in Marina del Rey that he would not accept the Cup that way.

Apparently, in the animosity of the ensuing months, he changed his mind.

“We put a challenge in and, unfortunately, the course was charted by the San Diego Yacht Club,” Fay said. “We did everything we could to convince them not to sail in a catamaran and offered to delay the regatta to allow them to build a qualifying boat. San Diego chose not to take up any of those offers.”

Maverick challenges and a mismatch of boats probably will not be issues in the America’s Cup again. During the September events, leading Cup interests from around the world reached an accord on the conduct of future events in which none would be excluded, and some of the world’s leading sailboat designers produced a consensus “America’s Cup-class” boat measuring 75-feet at the waterline that would be outperform the smaller but cumbersome 12-meters used since 1958.

This much seems certain--there will be no more catamarans in the Cup.

Said Fay: “It’s not the first time a yacht has ever been disqualified in a race. I hope it’s the last time it will happen in the America’s Cup.”


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