The Sanity of the Judiciary

The brilliance of what was handed down today by Justice Shirley Werner Kornreich in the Supreme Court of the State of New York is, in its own way, definitive, and frankly, emblematic.

In a nutshell, Justice Kornreich asserted that load on the waterline means exactly that – load on the waterline. All loaded ballast should be taken into account when measuring defender and challenger vessels engaged in America’s Cup 33.

In addition, she ruled, Valencia serves as a viable venue for the defense.

And the International Sailing Federation (ISAF) – despite its so-called ‘covert’ agreements with the America’s Cup defender, Société Nautique de Genève (SNG) – has assured the Court that it will appoint an independent jury to adjudicate any, all, and potential AC33 disputes, and that this independent jury will be free from interference by SNG.

Which is something, certainly.

Amazingly, both the AC33 Challenger, Golden Gate Yacht Club (GGYC), and Defender (SNG), apparently acquiesced with the Justice Kornreich's decision. Yet the Justice, a tough-minded jurist, has demanded confirmation from both parties.

Which is legal stuff.

For the rest of us, the message is that something decidedly non-legal, non-litigious, and non-lawyerly decided this event.

Key to Justice Kornreich’s deliberations was a panel of three expert jurors, appointed in turn by GGYC (1 juror), SNG (1 juror), and a third juror, appointed by the jurors nominated by GGYC and SNG.

This is noteworthy.

Apart from the fact that it’s yet another move in the Great Game of Chess that is America’s Cup 33, Justice Kornreich, in fact, asked sailors to assist in her deliberations.

Sailors, as in veteran sailing officials.

Where experience, common sense, fairness, and objectivity reside.

And where classic racing rules are respected.

Which makes us wonder.

Why has it taken millions and millions of dollars in legal fees, months and months of wasted time, and billions and billions of words – fair, meaningless, and vituperative – to get where we are now?

Couldn’t the world that is America's Cup have achieved this – or some of this – or a lot of this – by asking fair-minded sportsmen, their sailing clubs, and their advisors to sit down together, in July 2007, and work this through?

Of course, they could.

Any reason why it didn't happen?

That’s for history to decide. You have your view.

But it’s hard to say that Larry Ellison (USA), owner of BMW Oracle, GGYC’s sailing team, is the villain here. All Ellison has ever wanted is fair rules, American style. Look it up.

It’s easier to say that Ernesto Bertarelli (SUI), owner of Alinghi, SNG’s sailing team, was not interested in a fair contest, not interested in protecting the traditions of America’s Cup, not motivated by sportsmanship – but to the contrary, was motivated by the manifold concerns of a sports promoter, a deal maker, a manipulator, a self-dealer, a major dissembler, working back from a projected, desired goal (victory in AC33 at any cost) to what he and his cohorts had to do to make that happen.

Maybe that’s a Swiss thing. Or a European thing.

It certainly isn’t American.

New York Justice Decks RAK

In a surprisingly brisk judgment from the bench, Justice Shirley W. Kornreich of the New York State Supreme Court in Albany, New York, today eliminated Ras Al Khaimah as the location for America’s Cup 33, ruling in favor of Golden Gate Yacht Club (GGYC), the America’s Cup challenger, over Société Nautique de Genève (SNG), the defender.

Leaving the door wide open for Valencia as the venue for AC33 – and for an SNG appeal – the Judge then waded into deep water on other matters, including rules, changing rules, and who changes them; length-on-the-waterline measurements, not including the rudder, except on toy boats, which don’t count; and ballast, movable ballast, and other weighty issues.

Justice Kornreich, apparently, will soon rule on the remaining items.

According to courtroom observers from the AC Anarchy division of the website Sailing Anarchy, which provided members with gavel-to-gavel coverage online, the eminent David Boies of Boies, Schiller & Flexner of New York, acting for GGYC, was as out of his depth as the good Justice herself on boats, racing and rules
– neither of them helped by the ultimately defeated Barry R. Ostrager of Simpson Thacher & Bartlett, head of litigation at that firm and a known dissembler, acting for SNG.

GGYC awaits the Justice’s ruling on other matters, but pockets a considerable victory.

SNG, their legal team, and sailing team Alinghi, represented in the courtroom by Skipper Brad Butterworth (NZL), must feel like stunned mullets.

Shown respect by Justice Kornreich for their perspective on security matters, but only briefly, officials from Ras Al Khaimah are now left with a half-completed facility in the desert which, if ultimately completed, will enhance their resort but will not host an international sailing event.

At least, not any time soon.

Given the definitive outcome, curious observers could be forgiven for wondering why on earth SNG and Alinghi felt that Ras Al Khaimah was the perfect location for AC33 in the first place; how they possibly could have expected GGYC to support this bizarre decision; or how their understanding of the plain language of the venerable Deed of Gift could be so badly informed.

The image we have in our mind is of a wild and reckless 17-year-old on a Hobie Cat, tearing along on a scorching breeze, on a direct line for the marina and the vessels moored there, with absolutely no idea how to turn, slow, stop, or avoid the imminent catastrophe.

He looks a lot like Ernesto Bertarelli (SUI).

Armageddon, Dirty Bert, and the Disgrace of America's Cup 33

“In exchange for selecting Ras Al Khaimah to host the 33rd America’s Cup, SNG (Société Nautique de Genève) secured the following commitments, among others: the Ras Al Khaimah Investment Authority (“RAKIA”) agreed to finance a shipyard to be built in Ras Al Khaimah by Décision SA, a Swiss yacht-building firm that has built all five of SNG’s America’s Cup racing yachts and which is owned in part by Ernestor Bertarelli (SUI), who controls SNG’s racing team, Alinghi.”

Does that sound to you like self-dealing?

Well, that’s just part of it.

“RAKIA agreed to finance the building of a campus in Ras Al Khaimah for Ecole Pol(y)technique Fédérale de Lausanne (“EPFL”), a Swiss institution that has served as a scientific advisor and partner to Alinghi since 2003 and has played an important role in the design of Alinghi 5, the catamaran SNG/Alinghi built to defend the 33rd America’s Cup; and RAKIA agreed to provide funding for EPFL’s Center for Neuroprostheses, which is overseen by five chairs, two of which are endowed by the Bertarelli Foundation, a foundation established by the Bertarelli family, including Ernesto Bertarelli, to manage and fund the family’s philanthropic interests.”

All this from a complaint filed in the New York Supreme Court by the mega-mega-law firm Boies, Schiller & Flexner of New York, acting for the America’s Cup Challenger of Record, Golden Gate Yacht Club (GGYC) of San Francisco.

With the dull clethunk of a court clerk's rubber stamp, Société Nautique de Genève's trusteeship of the America's Cup has been formally challenged.

Perhaps fatally.

What it isn’t discussed in the complaint, of course, is the highly theoretical, abstract, and fanciful possibility that Ernesto’s cost of construction of his magnificent catamaran, Alinghi 5, was seriously discounted by Décision, a boat builder, in favor of a choice by SNG of RAK as a location for the defense of AC33, where Décision is seriously invested.

But is that possible? Could that happen? We have no idea. It would take legal discovery to discover it.

Perhaps that could happen.

Otherwise, Boies’s complaint hammers one fact after another in a punishing repudiation of SNG’s behavior as a as Trustee of the America’s Cup.

Virtually everything about the AC33 defense is a sham, says the complaint. Effectively, SNG's defense is a slap in the face to the venerable Deed of Gift, the august document that controls America’s Cup.

Articulated in the complaint:

Alinghi’s arbitrary, bizarre and total control of the rules, without exception.

A secret pact agreed with the International Sailing Federation (ISAF) to control the rules, including – amazingly – the emasculation of ISAF in an abrupt and definitive way, decidedly neutering the world’s sailing authority, relative to AC33, authorizing them to do virtually nothing.

Measurement mania, in violation of the Deed of Gift, which favors the picayune measurement of the competing vessel in favor of Alinghi.

Mortal danger – well, not to put too fine a point on it – the risks of the impacts of war – in the waters off Ras Al Khaimah, which are less than 20 miles from Iran. All of which is a very serious consideration for any owner, club member, sponsor, or fan who wishes to bring a private vessel to the RAK location – given that no navigable way exists to get there without reckless exposure to threats from pirates (who are routinely successful) or aggressive Iranian Navy commanders (who don’t hesitate to act).

Self-dealing deals in Valencia – even before AC32, deals were concluded involving Bertarelli real estate, infertility clinics, and Ernesto’s mega-pharmaceutical firm. This is icky.

The failed proposition of Real Federaćion Español de Vela (RFEV), as a potential cup challenger, and its subsequent substitution by the pathetic and inadequate Club Náutico Español de Vela (CNEV), manifestly not a club.

Total control by Alinghi and SNG over anything and everything, including who can challenge for AC33 and enter, and who cannot, as well as the race committee, competition judges, and every other official, including the class rules themselves, racing rules, and the details of the challenger series, and a lot more – literally and absolutely everything, without exception, under Alinghi's control.

The AC Defender (Alinghi) as a virtual challenger – meaning Alinghi’s ability to compete in the challenger series, even if their performance negatively affects the standings of other competitors.

All of that, and more.

It’s amazing.

Suddenly, everything you ever felt was wrong about AC33 – and more – has been laid before the Courts of New York by Golden Gate Yacht Club (GGYC), in an attempt to bring the Depravity of America’s Cup to an end, in a major way.

Will sanity prevail?

Well, AC33 at Ras Al Khaimah may happen. Then again, it may not.

But the issue of SNG’s breech of responsibility as an America’s Cup trustee will survive RAK.

This issue will not be decided in racing that takes place on the war-infested, headland-sheltered waters off a narrow, barren piece of desert land that points to the heart of Iran.

It will be decided in the Courts of New York.

And this will decide the future of America’s Cup.

America's Cup Chess

I open with my pawn (e4).

You open with your pawn (e5).

Then I move my bishop (b5). And so on. Remember?

Somewhere beyond the standard openings, things get interesting.

It reminds me of America's Cup.

Knowing that movable ballast will plunge their vessel's length on the waterline over the limits imposed by the Deed of Gift, Société Nautique de Genève (SNG) decides, for the first time ever in America's Cup history, to include the rudder of the competitive vessel (the trimaran of Golden Gate Yacht Club (GGYC)) in that vessel's waterline measurement, forcing it over the limit imposed by the Deed of Gift. Ha, ha!

That's e4.

GGYC responds by challenging SNG's movable ballast, reminding SNG that the Deed requires every element of the vessel's racing load to be aboard for measurement, as SNG (in dissembling mode) avers their ballast isn't part of the racing load.

That's e5.

GGYC marks their response by punching the mega-clock of mega-lawyer David Boies of the mega-law firm, Boies, Schiller & Flexner, LLP, who files a memorandum of law in the Supreme Court of the State of New York in support of GGYC (a document that was very well written and very clearly articulated, we might add, at least for lubbers like us).

That's Bp5.

Meanwhile, His Excellency Fred Meyer (SUI), Vice Commodore of SNG, departs from all convention, repudiates his prior behaviors, flaunts elaborate courtesies, and writes a surprisingly temperate, respectful letter to his senior counterpart at GGYC, Commodore Marcus Young (USA).

From Vice Commodore Meyer, this, also, is a first in America's Cup history.

The dust barely settled on his powdered peruke, the Vice Commodore brings greetings from the Alpine nation, enquires into the health of the California Commodore and his colleagues, family and friends, utters felicitations of joy, and shares abundant blessings . . . well, no, that's overdoing it.

But Vice Commodore Meyer overdid it also.

In the first mannered letter he has ever written, Meyer sought to document that GGYC representatives had actually visited the desert port of Ras el-Khaimah, in the United Arab Emirates, and uttered nice remarks about preparations there for America's Cup 33.

Why?

Well, that's chess. It's a move.

At some point in the Grand Tour of the Courts of New York, SNG will seek to prove, somehow, some way, whatever actually happened, and whatever GGYC subsequently did, that GGYC actually visited the Middle East venue, and liked it.

And here is Myer's letter to prove it.

Anyway, that's the middle game.

Your move.

Now there are two America's Cups

Well, there's one, a real America's Cup.

Possibly, it's about to be sailed off Ras el-Khaimah, in the United Arab Emirates, close to a war zone, close to pirate havens, so close that no private vessel of any owner, commander, captain, master, mate or loblolly-boy could ever get there without having to pass through (i) a war zone, or (ii) pirate waters, whichever is worse, whether they come from the Suez Canal or the Indian Ocean.

So that's one America's Cup, if that's what you want to call it. Some call it AC33.

Then there's another America's Cup.

This America's Cup is redolent in the bright, bouncing, baby child born of a union between luxury goods marketer Louis Vuitton and the rest of the America's Cup universe, otherwise known as Those-Not-Participating-in-America's-Cup-33, all of whom (potentially and in reality) were escorted to the altar by the Hon. Grant Dalton, Father-in-Law-in-Chief, chief executive of America's Cup Team New Zealand.

This second America's Cup is a one class event, currently debating its reality with World Match Racing authorities over the use of the word "world" and perhaps over other items, all of which are arcane, minute, and will be satisfied only by a bureaucrat's passion for details.

Anyway.

Bruno Troublé (of Louis Vuitton), who is not to be outdone as a major sailor and a sponsor with the power to express his feelings and opinions, is pushing forward with his concept, and with his expansion of his successful One-Class-AC-Class-Version-5-Class America's Cup style event, held for the first time in Auckland, New Zealand, which just happens to be Bruno's favorite South Pacific port.

It will only take sheer failure, a meltdown, a fusion of failure factors for his series not to take hold and establish an AC-style, AC-level event, however the competition is designed, and whatever boats are used, deployed, developed -- or even built from scratch -- in order for the great sailors of the planet to compete in this event. And enjoy it.

So, naturally, M. Troublé's event will succeed, so long as there are AC Version 5 boats to sustain it, short term, and other designs to sustain it, medium term.

Longer term?

Well, that's an issue.

If Alinghi and BMWOracle pursue their duel in RAK, and one wins, and one loses, and if any loss or win in the event is taken to the Courts (like the Bush-Gore election), then I think we can say, assuredly, that the America's Cup, as we know it, is dead.

In that case, the Trustees (who have sponsored America's Cup teams), in uniform, will act.

If that happens, America's Cup is all ahoo, if it wasn't already.

Ready to replace it will be the first, most viable alternative -- the Louis Vuitton America's Cup One Class event.

The Trustees could actually engineer that to make it happen.

If they don't, what on earth would they engineer? Apply the Deed of Gift? Properly, yes. But God help us! Didn't that just happen? Yes. What next? God knows.

Nevertheless, Bruno wins. He has a defined event, an international event, and event that transcends "racing boats in salt water" and becomes, literally, the high end of yacht racing, just like Ernesto (Bertarelli (SUI), defender of America's Cup) imagined.

Actually, the Formula One of Sailboat Racing.

Or whatever it may be called.

The Dumbing Down of America's Cup 33

Nobody has noticed this.

It’s been going on for a while now, no, really, for some time.

It’s not about the New York Courts.

It’s not about Ernesto Bertarelli (SUI), the Prince of Alinghi, head of the America’s Cup sailing team of the cold water sailing club Société Nautique de Genève (SNG).

It’s not about His Excellency the Honorable Voicebox, Fred Meyer, Vice Commodore and Yammerer-in-Chief of SNG. (It should be noted that Commodore Meyer cheerfully takes the heat for his Commodore, Pierre-Yves Firmenich, a gentleman of the old order who tends to his fragrance business and adopts a profile approximating that of the water level of Lake Geneva.)

It’s not about Larry Ellison (USA), founder of BMWOracle, the biblical Lot of the sailing world, an individual who can suffer multiple afflictions (including Ernesto, SNG, and the Courts of New York) and still get up in the morning, dress, organize his life, and go to work to brilliantly and successfully guide the global corporation he created from scratch, an organization that virtually defined the database software industry. Could you do that?

It’s not about Marcus Young (USA), apparently a very nice man, who works in the public relations industry, whom virtually nobody has ever met, who adopts a profile approximating that of Pierre-Yves Firmenich (actually lower, on San Francisco Bay), and is known to the America’s Cup community by his signature on beautifully phrased, coolly rational, and utterly logical letters to his Swiss counterpart (well, counterpart but one) HEHV Meyer, YIC.

This amazingness, frankly, is not even about Sir Russell Coutts (NZL), chief executive of BMWOracle, whose appellation of knighthood was restored to him and scores of other extraordinary Kiwis by the new Prime Minister John Key, just recently.

It’s not about Brad Butterworth (NZL), for crying out loud, the canny sailor we love to hate, who not only is Coutts’s great friend and counterpart at Alinghi, but who, despite what everyone says back home, is still a great Kiwi, a great sailor, and a genius who comes from the Waikato, after all. And all of us appreciate that.

It’s not even about the Cold Shudder of Lawyers, all of whom are doing very well out of the America’s Cup.

Actually, it is about all these characters, all of whom actually command America’s Cup, all of whom like to think they control the America’s Cup, but . . .

THE SAD FACT IS, NONE OF THESE PEOPLE ARE TALKING TO EACH OTHER!

America’s Cup has become such a casino that nobody knows how to talk to anyone, anymore.

Nobody knows how to address anyone in civil terms. Nobody even wants to talk to anybody else, anyway, about anything under the sun whatsoever, especially America's Cup 33.

People have forgotten how to talk to other people, even if they wanted to do that, which they don’t, and if they did, they'd call the lawyers. Which is ridiculous.

It’s literally Alice in Wonderland. Toad of Toad Hall. Craziland.

We don’t know anything more than you know, and we know that you know nothing. But we do know that everyone on the planet hates what is happening to America’s Cup, with a passion, including you.

We wish sanity would prevail.

Which includes a lot of great sailors and great pontificators, on both sides of the issue, and on both teams.

Which includes us.

Anyway.

In our view, there are three ways to move forward:

(1) Ernesto and Larry -- or Larry and Ernesto -- personally and exclusively have the power to get together and agree on the outcome – a victor who can win fairly – and then decide what that actually means. Absolutely, they can.

(2) Then, they can adjudicate the details between themselves, by themselves, leaving the panjandrum of fakirs of both teams behind, all of whom can take their coffee and their baco-cheese panini elsewhere.

(3) When Larry and Ernesto ultimately come to terms, they can tell the world that the race is set, where it is will be staged, what the competing vessels must adhere to and not exceed, and when everyone has to get together to make the contest happen, including all of us who are sitting on the sidelines railing about everything about AC33 and about everything else under the sun, including hemispheric venues in nasty (and pretty) places.

Larry and Ernesto -- or Ernesto and Larry -- can make this happen by lunchtime.

Let’s encourage this.

Please.

Let's take a moment

New Zealanders live farther away from the world than almost anyone, except Falkland Islanders.

To experience what the world has to offer, Kiwis leave home.

Most go to Australia, and live fabulous lives there, and a great many stay there. More and more Kiwis, now as always, keep moving – to London, Europe, Asia, Canada, the Caribbean, the Mediterranean, Russia, the United States.

Unlike a lot of expats, who typically stick together in supportive communities, Kiwis assimilate easily. They make friends with the locals. Identify with the new place. Become part of the new environment. Sometimes, they stay connected with fellow Kiwi expats, but just as often slip away to build new, independent lives.

People say there could be a million Kiwis or more spread out around the globe.

However they live their new lives and whatever they do in the world, a big piece of every New Zealander’s heart and soul stays fixed in Aotearoa. What doesn’t stay there is spliced to a cable that’s firmly anchored in the island nation and pays out as they travel around the planet. Nothing can break that connection.

This week, a much loved Kiwi will be taken home to New Zealand from Valencia.

Paul Wallbank (NZL), formerly team trainer for BMW Oracle, died suddenly last Sunday. He was an energetic, enthusiastic professional who loved his business and made a multitude of connections among his teammates, associates and clients – from heavyweight Kiwi boxer David Tua to Auckland business executives who trusted him to keep them in shape and who dedicated themselves to his regimes, as well as Valencians he got to know in Spain, and who got to know him.

After his BMWOracle career, Paul Wallbank was planning to build a training studio in Valencia.

Now his friends from BMW Oracle will be taking him home. Russell Coutts (NZL), BMW Oracle CEO, will be there with them.

This is as important for his teammates as it will be for Paul Wallbank’s family, and our heart goes out to all of them. But we know what they also know.

Paul Wallbank is already home.