Exposed by Alan Sefton

Author:Alan Sefton
Language: eng
Format: epub
ISBN: 9781472942906
Publisher: Bloomsbury Publishing

DEFEND OR FORFEIT

At 9.30am on 9 September 1987, Judge Ciparick mounted the bench in the Manhattan Supreme Court to be faced by a dozen lawyers, representing not only the San Diego Yacht Club and the Mercury Bay Boating Club, but also the office of the Attorney General of New York, the City of San Diego, the New York Yacht Club, and the Royal Burnham Yacht Club (of England). Also present were Michael Fay, Malin Burnham and other representatives of the principal parties, along with a host of reporters and other interested onlookers.

Taken aback by the large attendance, Judge Ciparick moved the hearing to her robing room, with only counsel present, and there set the ground rules for what clearly was going to be a bigger affair than she had probably anticipated.

It took until 25 November 1987 for the judge to hand down her decisions, in which she said:

In the face of the Mercury Bay challenge, San Diego asks the court to retroactively interpret or amend the Deed to allow it to ignore the Mercury Bay challenge, to give the defender the right to designate, among other things, the size of the boat, the dates of the races and to organise an elimination series between challengers. In effect, San Diego seeks to have fundamental changes written (or interpreted) into the Deed to take away rights given to the challenger under the Deed, rather than relying on the mutual consent provisions as has been done in the past.

Judge Ciparick then ruled:

Applying the relevant standard, the court finds that the San Diego Yacht Club has failed to make the required showing to justify making truly radical and fundamental changes in the Deed … For the court to decide otherwise would be to allow the holder of the America’s Cup to virtually unilaterally dictate the conditions of future competitions. That result is unjustified in view of the workable Deed and would clearly violate the donor’s intent … Therefore, in the face of a properly tendered challenge, the San Diego Yacht Club, having accepted the Cup pursuant to the terms of the Deed, may either accept the challenge, forfeit the Cup, or negotiate agreeable terms with the challenger.

Sail America’s clandestine attempt to arbitrarily amend the Deed had failed and the SDYC had been instructed by the court to defend against a legitimate challenge by Mercury Bay, or hand the trophy back. Despite their posturing and aggressive media statements, the San Diegans had clearly harboured their own reservations and had been preparing the ground for their next moves should Judge Ciparick rule against them.

On 10 November 1987, at the Tuesday Yachtsman’s Luncheon of the St Francis Yacht Club, Sail America’s chief operating officer Tom Ehman told the gathering that, if it lost in court, Sail America would do whatever was necessary to make sure that Michael Fay had no chance whatsoever of winning on the water – even if there was nothing fair or sportsmanlike about how they did it. The audience of San Franciscan yachtsmen was taken aback.

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