When a final-arbiter court in April ruled 6-0 against Alinghi’s artificially inseminated Spanish challenger, the mantle of Challenger of Record for the next America’s Cup match passed to Larry Ellison’s American team, BMW Oracle Racing/Golden Gate Yacht Club. Thus passed two years of wrangling and climbing through the highest courts of New York, where the America’s Cup Deed of Gift was incorporated in 1877.
Only an established yacht club may challenge for the Cup. Club Nautico Espaol de Vela, hastily thrown together inside the Cup village in Valencia (apparently under tutelage of the defender, Ernesto Bertarelli’s Alinghi/ La Socit Nautique de Genve) was ruled illegitimate. The outcome followed a cycle of rulings in favor of BMW Oracle, followed by a lower-appellate ruling in favor of Alinghi, followed by this ultimate reversal by the New York State Court of Appeals.
In hindsight, Alinghi overreached in creating a protocol assigning unprecedented powers and control to the defender, terms that only a “lapdog” challenger would have accepted. Available arguments were many, but the final ruling turned upon a narrow point.
Consider the meaning of the word “having,” as in the phrasing of the Deed of Gift, which limits a challenger to an organization, “having for its annual regatta an ocean water course on the sea, or an arm of the sea.” Ellison’s attorneys contended, that an organization formed with the intent of someday staging a race does not fulfill the meaning of “having”.
What next? The outside-your-box challenge that Ellison filed in July, 2007, naming a 90-foot multihull, was legitimized. But Ellison’s publicly stated aim was to force Bertarelli to renegotiate toward a more-balanced format. Ellison’s 90-foot trimaran (a second version has been rumored) was built as a hammer, he said, leaving all possibilities open. Soon after the court ruling, the commodores of all previous Cup-winning clubs published a letter urging compromise. And that, as we went to press, was the state of play.