Update
THREEPEAT FOR THE DEED OF GIFT Jack Griffin Three months in a row with the Deed of Gift being the most important topic? Say it ain’t so. If you make it to the end of this article you’ll find a plea to the people who could free us from the uncertainty that so often surrounds this event that enthrals us. As your scribe types these words in late-June we once again note
that there is no agreed protocol for the 38th America’s Cup. Since last month’s issue we have had an announcement about the venue – Naples – and all parties now seem to be happy about racing there. That announcement was followed by a flurry of team statements, with challengers complaining that defender Emirates Team New Zealand had negotiated with Naples before agreeing a protocol, and could not sell rights for a challenger selection series again until one was negotiated in the protocol. These statements included fighting words, like fiduciary duty. Not a good sign. ETNZ fired their own salvo in the announcement skirmish, releasing their latest draft protocol, proclaiming that they were being transparent. Negotiations continue. We all know what happens when the defender and the challenger
cannot reach mutual consent about the terms of the competition. We saw that in 1988 and 2010. Although none of the teams wants another DoG match, the commentariat has started chattering, often in ignorance of what the Deed of Gift actually says. Let’s explore. The Deed of Gift has 12 paragraphs. What does each of them
cover? Did you know that the words ‘defender’ and ‘challenger’ do not appear in the DoG? It certainly says nothing about a challenger of record. Nor does it say anything about the nationality of the crew. What are the responsibilities and duties of, as the deed says, ‘the Club holding the Cup’? We’ll answer that after exploring those 12 paragraphs. The first paragraph states who is making the agreement – George
Schuyler, sole surviving owner of the Cup, and the New York Yacht Club. The second paragraph uses six legalistic terms to say that Schuyler is giving the Cup to the NYYC and that there are conditions attached to the gift. The third paragraph is the most frequently quoted: ‘This Cup is donated upon the condition that it shall be
12 SEAHORSE
preserved as a perpetual challenge cup for friendly competition between foreign countries.’ Forget the word ‘friendly’ for a moment and note that these words say nothing about preserving the Cup in order to build a commercially viable sports entertainment business… The fourth paragraph has been the source of the most contention
and generated most of the substantial legal fees for the DoG matches of 1988 and 2010. It obligates the club holding the Cup to accept a challenge from another qualified club. Remember that at Cowes in 1851 John Cox Stevens was frustrated that the British yacht owners would not accept his wagers for matches, apparently afraid of losing their money. Schuyler made sure the DoG ensured that yacht clubs from foreign countries would ‘always be entitled to the right of sailing a match for this Cup’. This meant that San Diego Yacht Club could not refuse the
challenge from Mercury Bay Boating Club in 1987. San Diego lost the first legal battle and were forced to race Mercury Bay’s big boat. But Mercury Bay had not understood the words that allowed San Diego to defend with ‘any’ yacht, allowing San Diego to use a catamaran to win the mismatch in the Coma Off Point Loma. Paragraph four describes the requirements for a club to be eligible
to challenge. In 2007 Société Nautique de Genève claimed to have a challenge from three-week-old Club Náutico Español de Vela. Golden Gate YC cried foul, submitted their own challenge while claiming that CNEV was ineligible. Over two years of legal wrangling ensued, GGYC prevailed in court and Alinghi’s giant catamaran lost to Oracle’s wing-sailed trimaran. During the SNG-GGYC court case the fourth paragraph’s require-
ment that the yachts be ‘constructed in the country’ of the competing yacht clubs was argued extensively. This is possibly the most archaic aspect of the 19th-century DoG. Remember the arguments about who designed Australia II’s winged keel in 1983 and whether the Alinghi catamaran’s 3DL sails were constructed in Minden, Nevada where the blanks were made or in Villeneuve, Switzerland, where all the tack, clew and head hardware were attached? Does ‘constructed’ include designed? What is the meaning of ‘constructed’ relative to 21st-century technology and supply chains? The fifth paragraph limits load waterline length of the yachts –
ALAMY
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