San Diego to Appeal Cup Decision : Organizers to Challenge Ruling That Favors New Zealand

During last September’s mismatch between San Diego’s catamaran and New Zealand’s monohull, the San Diego, New York and Royal Perth yacht clubs announced what they called “an historic document” to settle future America’s Cup disputes.

Now they may have their first dispute--determining whether that document is worth the paper it was written on.

San Diego said Monday it will appeal last week’s ruling by New York Supreme Court Justice Carmen Ciparick that awarded the America’s Cup to New Zealand because San Diego used a catamaran against Michael Fay’s monohull. Then the sides disagreed on whether the delay caused by an appeal will preclude the next defense both planned for 1991.

According to the protocol signed by the three clubs last summer and a promise from Fay to abide by its terms, the next defense may start “no earlier than 24 months after the conclusion of all proceedings, including any legal proceedings.”

Tom Mitchell, spokesman for the America’s Cup Organizing Committee, said of the agreement: “Sail America helped to initiate it. (Former SDYC Commodore) Doug Alford’s signature is on top. We were definitely party to it.

“But that protocol has no legal standing at all.”

Fay hoped to defend the Cup he won in court starting in April of ’91 at Auckland, New Zealand. According to the Deed of Gift, which would take precedence over the San Diego agreement, a Cup defense in the Southern Hemisphere must be completed by May 1.

San Diego said that if Fay abided by the two-year condition, that wouldn’t have been possible even without an appeal, because tying up the legal loose ends could run into this summer.

Peter Debreceny, a spokesman for Fay, said Monday: “Of course, there would have been an event in April of 1991. The order (to implement the ruling) is only a few days away. Andrew Johns (Fay’s lawyer) has been in Perth, Western Australia, the last four days meeting with the Royal Perth Yacht Club on internal procedures.”

The Royal Perth YC is the official challenger of record for the next defense. A meeting of challengers is scheduled in Auckland in May.

“And I think we’ll proceed with that,” Debreceny said. “There’s no doubt we would have been ready. We may proceed with these plans and have a World Championship in ’91 for the new (America’s Cup) class, if the challengers want that.”

The new boats, also agreed upon at San Diego, would be 75 feet at the waterline--and all monohulls.

There also was disagreement on whether San Diego, anticipating victory in court as well as at sea, tried to persuade Fay to agree not to appeal if he lost the case.

One New Zealander said: “They have, over the last few months, put a lot of pressure on us not to appeal if the decision went against us.”

“Not true,” Mitchell said. “We never did ask. The challengers told us they deserved their day in court, and we agreed. We put absolutely no pressure on them at all.”

Fay stated on several occasions, even before the San Diego races, that he intended to appeal if he lost in court.

But Monday, he said: “The world will condemn San Diego for being poor sports and now bad losers. They should be saying, ‘Enough is enough.’ It’s time to let the next America’s Cup proceed quickly from here.”

Mitchell said: “It’s pretty self-evident that it’s self-serving. (Fay) flip-flopped in 1987, going to court, saying his case was just the four corners of the Deed (of Gift). The judge agreed, and then he said his case was an interpretation of the deed, and the judge agreed again.”

Debreceny said: “We would have appealed because (a) we knew our rights, and (b) fundamental principles were at stake pertaining to challengers’ rights. (With last week’s ruling), the challengers’ rights have been preserved, and sportsmanship and fair play have been preserved as part of the America’s Cup.”

SDYC Commodore Pat Goddard said Monday that the club’s board of directors voted unanimously to appeal, as the organizing committee recommended unanimously. They will take their case to the appellate division of the New York Supreme Court. The next and last step would be the New York Court of Appeals. The issues involved would not be relevant to the U.S. Supreme Court because they raise no Constitutional questions.

Goddard said that Ciparick “mousetrapped” the club by switching tacks from a literal interpretation of the deed in 1987, ordering San Diego to defend against Fay’s maverick challenge, to last week’s interpretation based on the spirit of the deed that held the catamaran to be illegal.