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.