America’s Cup Is Sent Back to S.D. : Decision That Gave Yachting Trophy to Kiwis Overturned

An appeals court in New York fired a torpedo into New Zealand’s claim on the America’s Cup Tuesday, returning sailing’s most coveted trophy to the San Diego Yacht Club.

The Appellate Division of the New York Supreme Court voted 4 to 1 after 3 1/2 months of deliberations that San Diego’s 60-foot catamaran was a legal defender when Dennis Conner sailed it to two easy victories over New Zealand’s 130-foot monohull boat last September. That reversed a March 28 ruling by New York Supreme Court Judge Carmen Ciparick, who had awarded the Cup to New Zealand’s Mercury Bay Boating Club.

Tuesday’s ruling was almost as lopsided as those races, which Conner won by 2 1/2 and 4 1/2 miles. Although Conner sailed cautiously, the margins were great enough to give substance to a claim by New Zealand syndicate chief Michael Fay that the races were a mismatch and contradicted the spirit and letter of the 19th-Century Deed of Gift that governs Cup competition.

Ciparick agreed, shocking the sailing world with her bold decision.

Now that Ciparick’s ruling has been overturned, however, Fay said he intends to pursue his case to the next and last station: the New York Court of Appeals. Since the Cup is held as a charitable trust by the state of New York, it is an inappropriate issue for the Supreme Court of the United States.

“If I could go to the U.S. Supreme Court, I think I would,” Fay said in a satellite TV interview from his high-rise office in Auckland, overlooking the bay where the races would have been in 1992. “New Zealand’s resolve is as strong as ever. Perhaps our confidence is shaken just at this moment. Our determination hasn’t changed. You won’t see New Zealand giving up on the America’s Cup, either now or in the future.”

Fay felt he was double-crossed when San Diego answered his challenge with a catamaran--inherently, a much faster boat than a monohull. The merchant banker said he has already ordered his American lawyers in New York to move on an appeal. If the ruling Tuesday had been 3-2, one would automatically be granted, but since it was 4-1, he must petition the Court of Appeals.

According to Mark Smith of the San Diego law firm of Latham & Watkins, which represents the San Diego Yacht Club, only two of the seven judges on the Court of Appeals must agree to grant an appeal--”but the statistics are that in 1988 they granted less than 15% of the requests,” Smith said.

George Tompkins Jr., who represents Fay, said the request for an appeal must be filed within 30 days but agreed with Smith that it has “a one in 10 chance” of being heard.

Tom Ehman, executive vice president of the America’s Cup Organizing Committee, said: “This decision makes an appeal by Michael Fay very unlikely, meaning that it’s very likely that the defense of America’s Cup 28 (the 28th race) will occur right here in San Diego, where it should have been all along.”

Francis Radford, vice commodore of the San Diego Yacht Club, said he thinks Mercury Bay’s chances of winning on appeal are “slim and none.”

San Diego Yacht Club Commodore Patrick Goddard was said to be in Britain on business but plans to retrieve the Cup in New York on his way home this week. During the appeal process, it was temporarily restored to the custody of the New York Yacht Club, which placed it in a vault at the Morgan Guaranty Trust Co.

If Tuesday’s ruling stands, Fay will be forced to return to San Diego as a challenger in 1992, the same role in which he first plunged into the fierce world of Cup competition at Fremantle, Western Australia, in 1986.

San Diego’s America’s Cup Organizing Committee has received 24 challenges from 11 countries, including the Soviet Union, Japan and others that would be competing for the first time. Eliminations for defenders and challengers are scheduled to start in January, 1992, with the finalists meeting in May.

Only two Americans have indicated they will compete for the right to defend the Cup: Conner and Peter Isler, who was Conner’s navigator at Fremantle. Ehman said he intends to meet soon with other potential American challengers to encourage participation and strengthen the defense.

“Some of the challengers are already building boats,” he said.

The drawback to most of the American syndicates is that they would be forced to defend the Cup not for their home yacht clubs but for the San Diego Yacht Club.

Three of the New York judges--Joseph P. Sullivan, E. Leo Molinas and Richard W. Wallach--based Tuesday’s decision on a different interpretation than Ciparick had given to the Deed of Gift, which was written by Cup donor George L. Schuyler Jr. in 1887. A fourth judge, Israel Rubin, also voted to overturn Ciparick but for different reasons.

Sullivan, the presiding judge, wrote in the 49-page opinion: “The Deed of Gift is silent as to the type of boat to be used by the defender . . . (and) does not specifically bar the use of a multihulled vessel . . . nor is there any express mandate that the competing vessels be identical or even substantially similar.”

Further, Sullivan wrote, “In finding that the vessels must be ‘somewhat evenly matched,’ the court (Ciparick) promulgated a rule that is neither expressed in, nor inferable from, the language of the Deed of Gift.”

Fay had based part of his case on sportsmanship, which is addressed in the deed only in referring to the purpose of the Cup as “friendly competition among foreign countries.” The judges differed on that point, also.

The lone dissenting opinion by Judge Bentley Kassal was that “the 1988 America’s Cup races were manifestly unfair in every sense.”

Rubin’s separate opinion contained rambling references to hockey and fox hunting, but conceded that “Stars & Stripes’ victory was virtually ensured . . . (but) I cannot agree with the proposition that the America’s Cup competition is now, if it ever was, a paradigm of good sportsmanship.”

Sullivan also wrote: “This language . . . imposes no affirmative obligation on the trustee to use any particular type of vessel . . . (and) if any inference is to be drawn, it would be that the donor intended to afford the defender a limited initial advantage. . . . Other than a waterline length limitation, the Deed does not contain any design constraints.”

Fay said: “If the majority ruling of the judges was to stand, then the defender has a built-in, unbeatable advantage . . . guaranteed to beat the (challenger). This majority ruling is a disgrace to sport. The America’s Cup has no future . . . if these are the rules that govern the competition.”

Several prospective competitors, including San Diego and New Zealand, signed a protocol written at San Diego last year that they would refrain from pulling such shenanigans in future Cups and everybody would sail similar boats--a new “America’s Cup” class of monohulls larger and faster than the 12-meter yachts used since World War II. But Fay doesn’t trust the San Diegans.

“San Diego might say to the next challenger, ‘We won’t sail a catamaran,’ but what is to stop them?” he said. “The challenger is powerless to do anything about it. This opinion has given them the power to do anything to ensure the event is fixed in their favor.”

JUBILATION--There was celebrating at the San Diego Yacht Club after the decision was announced. Sports.