Thursday, October 30, 2008

Larry has a boat. Where is Ernesto's?

On September 8, 2008, Pierre-Yves Firmenich (SUI), Commodore, and Alan Touriner (SUI), Secretary General of Société Nautique de Genève (SNG), despatched a letter to Commodore Marc Young (USA) of Golden Gate Yacht Club (GGYC).

In this letter, SNG concluded that GGYC had put themselves in a position where their challenge for an America's Cup Deed of Gift (DOG) race was inalterably "void and invalid," and that SNG had no other alternative than to conclude that GGYC had "waived its challenge."

Therefore the DOG event was dead.

SNG's argument identified GGYC's failure to provide a "custom house-registry of the vessel" --  which apparently was BMWOracle's amazing raptor trimaran.

Read the letter (here).

Does SNG's letter sound like a yacht club that is aggressively building, or has built, or has designed, is designing, will build, soon will build, or ultimately will build a competitive vessel to meet GGYC's nominated team (in an extraordinary raptor 90-by-90 trimaran) in a Deed of Gift race?

We don't think so. We don't think SNG is building anything other than  . . .  lunch.

On the one hand, we have eminently worthy members of the Alpine Yacht Club (SNG) seeking to eliminate a competitor on the basis of flimsy paper evidence.

On the other, we have a serious competitor (GGYC) who has built an extravagantly brilliant vessel and is ready to sail and compete.

Look at it this way.

If you already had a fabulous, competitive vessel under construction, somewhere on the cold water lakes of the Alpine nation, and you felt you had a chance to win, would you be seeking to legally neuter your competitor and keep everything quiet? Destroy them legally? Remove them from the stage, by any means possible?

No, we don't think so. You would be challenging, threatening, and baiting your competitor. One sailor to another.

After all, if you had a competitive vessel, you would be ready to clean their clock.

But if you had no boat, no plans to build a boat, and you were out of funds, and you were afraid of losing any kind of multihull race, and you wanted to delay any kind of reality, any kind of truth, and therefore any kind of reasonable discussion among reasonable people, then you would probably ask M. Firmenich and M. Tournier to write a letter to GGYC.

Here it is again, the (letter).

We think the Little Prince of Alinghi, Ernesto Bertarelli (SUI), and his yacht club (SNG) are out of bullets, out of desire, out of ambition, and frankly, have left the DOG series behind.

They want to ignore it, and make it a myth.

They think M. Firmenich and his cohorts, actually, can clear the decks.

Therefore, there's no need whatsoever for them to worry about the DOG.

Given that, Brad Butterworth (NZL), Alinghi skipper, has been charged with making a "new" AC33 happen -- with new teams, new rules, new class rules, new agreements.

What other proof do you need that the DOG is dead?

Not much.

However, if for some reason we are wrong about SNG's multihull, or about the slate-cleaning "new" AC33, one question remains -- has anyone on the planet seen Alinghi's Deed of Gift boat?

We don't think so.

We think the DOG is dead.

We would love to be proved wrong.

Tuesday, October 28, 2008

Ernesto's ship in the night

So where is it?

Who is building it?

What are they building?

Where are they building it?

Has anyone seen it?

Does anyone know anyone who's seen it?

Does it really exist?

If so, please describe it.

Please tell us what you've seen.

Tell us what you know.

Tell us what somebody has told you.

Incontrovertibly, the big, huge, ugly fact here is that nobody knows exactly what is happening with this mythical vessel, or even if it exists.

But assuredly, Ernesto knows.

And if you were the Mother of All Ernestos, we are confident that you wouldn't be able to keep your multihull a secret.

You would be rubbing the fear, fact and threat of it in your competitor's nose.

But are we seeing this from Ernesto?

I don't think so.

You don't think so, either.

If you do, let's hear from you.

Monday, October 27, 2008

By their marks you will know them

Letter writing. An ancient pastime, and today, despite the unbiquitous cellphone, an everpresent necessity. 

In the 18th century, we know that Thomas Jefferson wrote like a man possessed to everyone he knew. Today we text and email everyone we know, even people we don't know. Or we blog. And as every lawyer on the planet still advises, we put it in writing. Often, our lawyers write those put-it-in-writing letters.

Well, Larry (Ellison, USA) and Ernesto (Bertarelli, SUI) are engaging in a duel, long distance. Weapon of choice, the pen. The sentiments expressed, somewhat bizarre.

At least, Larry's letter (October 17, 2008) was dignified and reasonable, re-stating his simple premise (let's go back to the provisions of America's Cup 32, or similar), and yes, he agreed, one new boat is plenty for all of us in this challenging economic environment.

But, Larry added, significantly, I really don't like the idea that you, Ernesto, would gain an unfair advantage by sailing in the Challenger Series with the rest of us. 

So Larry offered two ways to mitigate that unfairness. Both were reasonable; one more reasonable than the other.

Ernesto's turn comes next. He writes his letter (undated).

Like a blogger, Ernesto goes full bore into rant mode. Aided and abetted, we are sure, by faithful attorney retainers and loyal sailing friends lollygagging in the halls of Société Nautique de Genève (SNG), he rages.

In a letter designed to be reviewed by lawyers in a future discovery, and admitted into evidence in some court, somewhere, some time in the future, the Little Prince ignores the truth of Larry's courtly missive. Ernesto hauls out of his Dead Man's Chest a litany of grievances, including the singularly absurd "having".

We would like to remind Ernesto that "having" is dead. "Having" was wrong from the beginning. Millions have been spent on "having". Having said that, however, we remind Ernesto that, on the day it counted, Club Náutico Español de Vela (CNEV) did not have an annual regatta, never had an annual regatta, and had no plans for having, or ever having an annual regatta. Apunto.

Then, Ernesto rails about BMW Oracle (USA)'s failure to provide a 'valid certificate' and 'custom house registry' for, presumably, the team's magnificent raptor trimaran designed for the supposed Deed of Gift (DOG) race. Are we serious?

Next, Ernesto asserts a Big Lie, a Whopper, a huge Bruta Figura, as big as any Big Lie in America's Cup history, ever. 

"You require two boats," Ernesto fantastically and falsely asserts. "Requiring two full crews and the support staff for two boat testing." He pursues this absurd canard for three paragraphs.

As everyone knows, Larry said nothing of the kind in his letter. He said quite the opposite. He agreed that one boat makes sense.

Not to be left undone, Ernesto then disses and dispenses with the famous Version 5 boat, asserting that a new boat has been mandated by that somewhat curious assortment of former-previous-earlier-sometime America's Cup 33 challengers.

This is a wedge inserted into the debate by Ernesto to achieve three objectives: 

(1)  Diminish next year's Louis Vuitton Pacific Series (being sailed in venerable Version 5 boats)

(2)  Prevent an orderly, economical and efficient transformation of AC32 into AC33 in Version 5 boats -- which would jump start the series and employ hundreds of people -- for only one reason: that's what Larry recommends, not Ernesto

(3)  Kill any possibility of a DOG contest -- Ernesto hasn't built, isn't building, isn't planning to build, and never will build a 90-foot-by-90-foot Swiss-made raptor trimaran. And, in fact, he probably can't afford to build anything bigger than a Version 5 boat and probably would prefer to build less, like no boat at all. 

Actually, the big, bruising, elephantine fact in the room is obvious. Ernesto has no sponsors and no money. To remain a viable player, he must kill the humongously expensive DOG challenge (and those extravagant 90-foot trimarans). He must also kill that America's Cup event formerly known as AC33 -- particularly if it's reconfigured in Version 5 boats -- because accepting V5 boats means accepting a return to AC32. And that just doesn't work for Ernesto. For money reasons, he'd probably also prefer to sail something like his old, cold water trimaran on Lake Geneva. And Larry would have to find, build or repurpose one of those. Ha!

The rest of Ernesto's letter is the Dreamland of the Little Prince. 

We won't be changing anything about the AC33 Protocol, he says to Larry. So drop everything, particularly everything in the New York courts, and then come into AC33, bow to me, grant me everything, and become a submissive competitor, just like everyone else. Then, if you are nice, and everyone else is nice, perhaps we can discuss the class rules.

For heaven's sake, Ernesto.

Like a little boy starved of peers and playmates, the Little Prince invents games of his own imagining and devises rules that favor only himself, and queers the pitch, and dissembles and discombobulates, in order to emerge, by dinner time, without competition or a serious challenge, a hero.

This is what the entire America's Cup world is dealing with. 

Ernesto is a basket case.

It's time to pull the plug on his paranoid delusions.

If you were wondering about that clinical reference, by the way, a paranoid delusion is 'a fixed false belief that is resistant to reason or confrontation with actual fact'.

Some pundits say, it's time to wrap up, Ernesto.

We say, it's time to wrap up Ernesto.

Tuesday, October 21, 2008

A masterstroke by Ernesto?

Just when Team New Zealand (NZL) and BMW Oracle (USA) have committed four America's Cup Version 5 boats to the LVMH Pacific Cup challenge organized by Bruno Troublé (FRA) to be held on the Hauraki Gulf in Auckland, New Zealand, in February 2009, the Prince of Alinghi slams the Daughter of All Challenges onto the bone dry, dusty hard of the Valencia lagoon.

"Sail this!" says Ernesto Bertarelli of Alinghi (SUI), as he chokes, chortles and collapses on the ground, dissolving in maniacal laughter, in awe of the strategic genius and decision-making cojones of Club Náutico Español de Vela (CNEV).

"Or, if you prefer," Ernesto adds, "go sail down under!"

We don't know what the Italo-Swiss is for maniacal laughter, but it goes something like this: "Hahahahahahaha!!!"

The inestimable CNEV, that very pastiche of a Spanish yacht club, is having for its annual regatta a contest to be competed in America's Cup Version 5 boats on an ocean water course off that arm of the sea, the Valencia lagoon. It's open for any AC team still standing, still available, and still not committed (or having shipped their boats) to compete in Auckland.

If you are already en route to the Thunder Down Under, the Affair in Valencia is Out of the Question -- logistically, if not honorably.

You have to hand it to the Little Prince. He has a sense of humor.

Yet the sad, sick, pathetic little aspects of this noisemaker event are also evident, as always in anything that has to do with Ernesto, CNEV, and the Alpine Mammoth in the Room, Société Nautique de Genève (SNG).

As critics are saying, it lacks integrity -- not worthy of the hefty Top Class ranking generously and inexplicably assigned by the Royal Spanish Yachting Federation (RFEV).

Fusion and confusion?

The head of CNEV, Manuel Chirivella, a squirrelly figure, apparently is also head of the technical commitee of -- gasp! -- RFEV, who are, curiously, co-organizers of the regatta.

We wonder if this is the kind of sporting event up with which the King of Spain will not put.

Friday, October 3, 2008

Ernesto and Larry blinked

It's exceptional that rumors about a genuine settlement are circulating.

Put it down to this.

Ernesto Bertarelli (SUI) is finished -- no more options, no more funds, no more sponsors, no more rules, no more lawyers, no more ways to compete in the Courts of New York. But with a loyal Yacht Club and good friends, including a loyal Alinghi team, led by Brad Butterworth of Te Awamutu (NZL), and sailing pals, and loyal friends in the alpine nation.

Larry Ellison (USA) is finished -- a raptor trimaran, 90-feet x 90-feet, and huge legal bills. But with a loyal sponsor partner in BMW, a loyal Yacht Club, a ready team, including a passionate and competitive skipper, Russell Coutts (NZL) and sailing pals, and a brillaint, passionate, loyal, creative, and persistent consigliere, Tom Ehman (USA), who has to be The Bulwark of the America's Cup.

We have our fingers crossed.

Ready to salute both giants. 

Wednesday, October 1, 2008


This is getting to be very tiresome. 

We have explained this before. 

Even Cory Friedman, Esq. struggles with this, as do the lawyers at Latham & Watkins. But 'having' has wormed its corrupt way into the proceedings, and there it sticks. Everyone is trying to eradicate it.

We are only going to do this one more time.

If you want to know where we're coming from, click here.

Having was, and still is a red herring. In fact, it's now a big, fat stinking red herring, stuck in the bilges of the complaints and briefs of the Courts of New York, unable to be removed or eradicated, filling the world with reeking odors.

Having queered the pitch.

Having was just a word for George Schuyler, author of the Deed of Gift of the America's Cup.

Whatever he wrote (and he authored his quaint phrase for a reason), what he meant was: "having an open water course on the sea for its annual regatta."

His ancient, stately phrasing was designed to place a special emphasis on "an open water course on the sea", in order to deter a Canadian would-be challenger who sailed in cold water waters. 

Apparently, the Canuck was a challenger too coarse or too commonplace for the salt water sailors of America's Cup.

As we said earlier, the meat of the matter is "its annual regatta".

'Having' is about the present. No question. Do you have an annual regatta? Meaning now.

'Its annual regatta' is about your annual regatta -- and 'its' assumes you have one. Do you have one?

Just read Schuyler's sentence, grab Club Náutico Español de Vela (CNEV) by the throat, and ask the simple question:

Do you have an annual regatta? 

If you are CNEV, on the day the question was asked, your answer is no.

That's it.

That's all he wrote.