‘No chance’ for San Diego club appeal

Press, 5 April 1989, Page 6

‘No chance’ for San Diego club appeal

pA Wellington The San Diego Yacht Club’s decision to appeal against its dis ? ua^ *® holder of the America’s Cup has no chance of succeeding, according to tne Mercury Bay Boating Club lawyer, Mr George Tompkins.

“I would give it zero chance of success,” he said.

Judge Carmen Ciparick late last week disqualified ’ the S.D.Y.C. catamaran Stars and Stripes from the 1988 regatta and awarded the cup to the Mercury Bay club. Mr Tompkins said the S.D.Y.C. had either not read Judge Ciparick’s decision or not understood it, in choosing to appeal against her decision. He expects if the appeal should go ahead then a decision on it will be available in November. “We can move for an expedited hearing because of the interests of all of the other challengers around the world,” he said. “In the normal course of events, the court decides cases within six to eight weeks of the argument of the appeal. “So if we were heard some time in September, I would expect a decision some time in November.” Mr Tompkins said the first process of an appeal for S.D.Y.C. would involve the club seeking to block

the trophy being handed over to Mercury Bay while the appeal was heard. For that they •would need a stay on the order from the appellate division, which could be heard soon. Even if a block was not put on the order and the Cup transferred to Mercury Bay, the appeal would still be heard, he said.

But Mr Tom Mitchell, a spokesman for the San Diego America’s Cup Organising Committee, said it had been in touch with the New York State Attor-ney-General, Mr Robert Abrams, to try to get him, as a trustee of the Cup, to join in the appeal. If the Attorney-General was involved, Judge Ciparick’s order would automatically be blocked in the interim, he said. Commodore Goddard, at a press conference in San Diego, called Judge Ciparick’s • decision, in which she said San Diego had broken the spirit of the deed of gift governing the race, “totally inconsistent” with her earlier rulings.

“If the November, 1987, decision had been based on the ‘spirit’ of the deed, we would have won the case then and there, and none of this litigation would have been necessary,” he said. In that decision, Judge Ciparick had ruled the Mercury Bay challenge valid under the centuryold deed. In July last year she followed that with another decision telling New Zealand and San Diego to race at their own risk and to protest after the event. “Nothing in this decision should be interpreted as indicating that multihulled boats are either permitted or barred under the America’s Cup deed of gift,” she warned then.

In last week’s ruling Judge Ciparick said other major sports had had a centralised authority for the enforcement of competition rules, but with the America’s Cup the defender is responsible for ensuring the defence is carried out "in accordance with the letter and spirit of the deed of gift.”

However, at the press conference Commodore Goddard argued the judge did not understand the America’s Cup also had an overriding sports authority, the International Yacht Racing Union, and that the S.D.Y.C. had adopted its rules.. “The America’s Cup match in 1988 was governed by those same rules,” he said. “Mercury Bay could have protested to the international jury, but did not. Thereafter, under the racing rules, they have no right of appeal,” he said. Mr Tompkins, who has successfully argued the case through its various stages before the New York State Supreme Court, was not surprised by the appeal. “I thought that perhaps the yachtsmen would prevail but obviously the money-mongers still rule the roost down there,” he said, referring to the business interests represented on the San Diego America’s Cup Organising Committee. “They have to justify their existence. They got

a lot of egg on their face because they were so cocksure they were right with the catamaran and they’ve ■ now been told they were wrong.” He said the decision to appeal showed that people like Malin Burnham, Tom Ehman (chairman and vice-president respectively of the America’s Cup Organising Committee, John Marshall and in spite of his public utterances, Dennis Conner (the main people in the Stars and Stripes syndicate which defended the trophy), were “the guys calling the shots” as opposed to the club members.

"So they have to prove they were right and the only way to do that now is to appeal.” As for the San Diego arguments of an inconsistency in Judge Ciparick’s rulings, Mr Tompkins dismissed those as “a load of rubbish.” “She’s been straight-line consistent from the beginning and the only time they say she's inconsistent is when she rules against them.”