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THE AMERICA’S CUP CONTROVERSY : The Legal Basis Behind N.Y. Judge’s Cup Ruling

Times Staff Writer

For the first time in the 138-year history of the America’s Cup, a court of law has determined the winner of sailing’s most prestigious race.

On Tuesday, Justice Carmen Ciparick of the New York State Supreme Court ruled that the San Diego Yacht Club had violated the intent of the race’s rules when it used a catamaran to defeat the challenger, the Mercury Bay Boating Club, which sailed a single-hulled boat. The judge ruled that the Cup should be delivered to the challengers in Auckland, New Zealand.

Unless the lower-court decision is overturned, Mercury Bay will be the defender of the next series, scheduled for 1991.

The ruling by no means will quiet the legal wrangling on the matter, which so far has stretched out over three years. The San Diego group may appeal, although Mark Smith, an attorney for the SDYC, said Tuesday the club is unsure of its immediate plans. The case may be appealed to at least two more judicial levels--the appellate division of the New York Supreme Court and then to the New York Court of Appeals.

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However, considering the acrimony the lengthy debate has spawned, any further legal action is likely to draw criticism. Perhaps even from the courts. In her 14-page decision, Ciparick scolded both parties for allowing the matter to be dragged through the courts.

“Through their intransigence, San Diego and Mercury Bay have charted a course that has inextricably led them to the courthouse . . . " Ciparick said.

The crux of the legal debate:

For the America’s Cup race of September, 1988, the San Diego Yacht Club fielded a multihulled boat, Stars and Stripes, skippered by Dennis Conner, to compete against the huge monohulled yacht New Zealand, built by millionaire New Zealand banker Michael Fay.

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The New Zealand group protested that Conner’s catamaran violated the rules of the race, as set down in the Deed of Gift, which was established in 1887. The Deed sets forth the race conditions and basic specifications of the vessels. No external rules of yachting competition apply. The Deed has been amended twice, the last time in 1956 to permit 12-meter boats.

After preliminary court hearings, Ciparick ruled that the two sides should race first and seek judicial action later. As soon as New Zealand lost the series, Fay filed a suit calling for Stars and Stripes to be disqualified.

The lawyer for Fay told The Times Tuesday that the decision was vindication after a long battle. “It is confirmation that our interpretation of the Deed was right from day one,” George L. Tompkins, Jr. said.

Tompkins said the judge also confirmed Fay’s interpretation of the original intent of the Deed, which, according to Tompkins, included “The concept of fairness and sportsmanship and fair and equal vessels.”

The Deed, and through it, what the rules of the competition are, were closely scrutinized by the court. Ciparick wrote that the most significant sentence in the Deed is the one in which its purpose is set forth. She wrote that foremost to the those who designed the race was “that a genuine competition was of paramount importance to the donor.

” . . . The import is clear from the provisions of the Deed of Gift that although design variations are permitted, the vessels should be somewhat evenly matched.”

Ciparick characterized last year’s race as a “gross mismatch” which “therefore is violative of the donor’s primary purpose of fostering friendly competition.”

Ciparick said that the Deed--which was written by George Schuyler and placed in the keeping of the New York Yacht Club--was amended on two occasions to ensure that neither side would hold a built-in advantage.

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(For the next race, all challengers have agreed to replace the 12-meter yachts with a new, larger class 75-feet long yet 27% lighter. Clubs from about a dozen countries already have issued challenges.)

The intent and the spirit of the Deed of Gift was the axis on which the legal questions in the case revolved.

Charles Whitebread, a law professor at USC specializing in trusts and wills, said: “Let’s put it this way. When the First Amendment to the U.S. Constitution was drawn up, the one that allows for freedom of speech, was intended for speech and print. We didn’t have movies and TV. But there is no doubt now that the Constitution applies to both. That is the intent.

“Establishing intent is the important aspect of these cases. In my opinion, there is nothing worse in the law. This is what judges do all the time. What that tends to do is to bind you to things that you wanted (years ago) that seem silly today. In our legal system, the Constitution may be interpreted broadly, but wills and trusts are not.”

However, according to Charles Bird, a San Diego business attorney with Luce, Forward, Hamilton, and Scripps who has also handled First Amendment cases, the notion of original intent is not always automatically applied.

“That is just a theory, and it’s not even a very popular theory,” he said. “We have many centuries of precedence on this. You give it to a judge and ask, ‘What is your judgment.’ Almost by definition, the person who best knows what the intent was, is dead.”

The San Diego group has argued that when Schuyler wrote the Deed more than a century ago, he could not have foreseen technological advances such as catamarans or even today’s advanced materials such as fiberglass.

Ciparick pointed out that catamarans were in existence at the time of the Third Deed of Gift and had the donor intended for their inclusion in the race he could have specifically provided for their participation.

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The justice also noted that the frequent inclusion of certain waterline and load specifications--important to monohulled boats but not significant for multihulled boats--further indicated the race was intended to be limited to monohulls.

Regarding the technological changes that may have not been foreseen, Bird said each trust must be judged in context of the time in which it was written, not by today’s standards.

“For example, if somebody left a bunch of money to sponsor a baseball tournament and set up a rule in the will that said the game must be played according to the rules of major league baseball as they exist on Sept. 15, 1932,” Bird said. “Then no matter how much major league baseball changes after 1932, that one tournament, if it’s played at all, has to be played under 1932 rules. Scratch the designated hitter.”

Tompkins, whose law practice specializes in old treaties, wills and trusts, said the context in which the document was written--societal and ethical--must be considered.

“The Deed calls for fair play and sportsmanship,” Tompkins said. “That may not exist in sports today, but it is the atmosphere that was originally intended.”


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