Judge Shirley Kornreich is a graduate of University College, New York University, and received her law degree from New York University School of Law. From 1979 to 1988, she worked for the Legal Aid Society as a trial attorney in the Criminal Defense Division and as an appellate attorney. From 1988 to 1995, she served as the principal law clerk to Judge Ira Globerman. Since 1995, Judge Kornreich was a Judge of the Civil Court of the City of New York and, since 2002, she was an Acting Supreme Court Justice in New York County. She was assigned to the New York Supreme Court Commercial Division, in April of this year, to replace the venerable Herman Cahn and thus inherited the Golden Gate Yacht Club (GGYC) v Société de Genève (SNG) case.
Shirley Kornreich is also human and being a Supreme Court judge does not make her immune to the influence of hopes and anxieties that all of us experience. Those hopes and anxieties inevitably affect our decisions, even if we are not always aware of their influence.
David Boies opened the October 27 court action on the Ras al Khaimah venue for GGYC by saying:
We really have two points. One is that a race in February in the Northern Hemisphere is prohibited by the express terms of the deed. We believe that by itself is dispositive.
Boies then proceeded to devote just 13 lines, of the court transcript, to explaining why he believed that, before saying:
The second argument, your Honor, is that as the Court of Appeals held in the Mercury Bay case, whoever the current trustee is of the America's Cup has an obligation to exercise its discretion, and its discretion includes picking a location that's in the appropriate hemisphere but exercise that discretion in good faith. We believe that for the security purposes that we have referred to in the brief, it is not consistent with an exercise of good faith to pick this particular venue at this particular time to run this race.
Boies' reasoning on this ran to 50 lines of court transcript.
Barry Ostrager, for SNG, devoted roughly equal amounts of argument to the two issues – legality and security – and then it was the turn of Jeff Rosenthal, of Cleary Gottlieb Steen & Hamilton, representing the Emirate of Ras Al Khaimah.
RAK on stage
As an Amicus, Rosenthal had to request Judge Kornreich’s permission to be heard and, once that was given, launched into a long and almost uninterrupted speech – 232 lines of court transcript - about why RAK was a perfectly safe and suitable venue for the 33rd America’s Cup.
Rosenthal had scarcely had time to regain his seat when Judge Kornreich announced that she was ready to render a decision on the motion to disqualify RAK as a venue. The speed of her announcement caused many present to think that her mind was made up before she entered the court room:
Again, I'm not -- I'm going to render this decision purely on legal grounds. I believe that the order of Justice Cahn, as affirmed by the Court of Appeals, permits the race to take place in Valencia, Spain, and this was by virtue of previous preparation that took place in Valencia, Spain, there had been mutual agreement prior to the order that it would take place in Valencia, Spain, and I believe that may well be the reason Valencia, Spain was mentioned.
Whether it is or not, Valencia, Spain was permitted, and it is a Northern Hemisphere venue, it was permitted for the race. Other than that, the judge specifically said -- and, again, this order was affirmed by the Court of Appeals ‘-- or any other location selected by SNG.’
It is the belief of this Court that that phrase must be read in conjunction with the Deed of Trust, and the Deed of Trust specifically requires that the race, if it takes place between November 1 and May 1, must take place in the Southern Hemisphere. Therefore, since RAK is in the Northern Hemisphere, it cannot under the Deed of Trust take place in RAK.”
Judge Kornreich went on to say:
The Court, however -- the Court will not comment and does not believe it is appropriate for me to comment, or need I comment at this point, about security and safety.
So, if Judge Kornreich felt all along that it was not appropriate to comment on RAK security and safety, why did she not cut Boies short, when he devoted more than four times as much effort to proving RAK unsafe as he had to the issue of Deed legality? Why did she grant Rosenthal permission to be heard when his only subject was RAK’s suitability as a secure and safe venue?
Evidence of safety
There is little doubt that SNG’s evidence that RAK is a safe venue vastly outweighed that provided by GGYC, who produced just one affidavit in support of its case that the American team would be at risk in RAK. That affidavit came from Graeme Gibbon Brooks, who describes himself as “Managing Director of Dryad Maritime Intenlligence Service, a world-wide commercial intelligence company that specializes in providing systematic analysis and threat assessments concerning maritime terrorism, piracy and human trafficking. Brooks goes on to say that previously he served in the British Royal Navy for 16 years as a Mine Clearance Diver and Above Water Warfare Officer.
SNG produced three affidavits to prove that RAK is a safe venue. The authors were:
Noah Feldman, Bemis Professor of International Law at Harvard Law Scool, Senior Adjunct for Middle East Studies at the Council on Forign Relations and a member of the faculty advisory board for the Center for Law and Security at New York University School of Law. In 2003, Feldman served as senior constitutional advisor tp the Coalition Provisional Authority in Iraq.
Jack Devlin, President of the Arking Group, an international intelligence firm specialising in strategic intelligence collection, political risk management, threat analysis, and vulnerability assessments for a broad range of clients conducting international business operations. Devlin is a member of the Counsel on Foreign Relations and a member of the Advisory Panel for the U.S Secretary of the Navy. Prior to co-founding Arking, Devlin was a 32 year veteran of the Central Intelligence Agency (CIA) and, in 1985, was head of the CIA's Iran operations.
Vice Admiral Kevin J. Cosgriff USN (Retired) was Commander of the US Fifth Fleet; Commander of the Combined Maritime Forces and Commander of US Naval Forces Central Command. In those roles, Cosgriff oversaw all naval combat, combat support and maritime security operations throughout the Middle East and Southwest Asia in 2007 & 2008.
Unable to rule in favour?
There can be no doubt that when three people, of the stature of those men, say that RAK is a safe venue for the America’s Cup that is fact. That said, widely publicised events, such as the attacks on the New York twin towers and the Madrid train bombing, where 191 people died and 1,800 were wounded, have made everyone aware that, in today’s world, a terrorist attack could happen anywhere and that includes any America’s Cup venue.
Kornreich’s ruling that she had to rule against RAK because “since RAK is in the Northern Hemisphere, it cannot under the Deed of Trust take place in RAK.” makes little sense. It was OK for Judge Cahn to overrule the Deed and declare Valencia valid, so why couldn’t Judge Kornreich to do the same for RAK? Could it be that Shirley Kornreich felt unable to rule in favour of a UAE venue?
Post 9/11, Americans have developed an understandable fear of Muslim terrorism on American targets and, by focusing so heavily on security concerns, GGYC may well have put Judge Kornreich in a position where she felt unable to take the risk of ruling in favour of RAK. Did the human side of Shirley Kornreich visualise the future headlines – “Kornreich order sent American sailors to their deaths” – if she ruled in favour of Ras al Khaimah and some terrible incident occurred? Did she wonder whether BMW Oracle, by giving newspaper interviews about the dangers of RAK, might have sparked the interest of extremist groups, who would otherwise have paid little attention to the event?
Immediately after ruling against RAK Judge Kornreich invited SNG to appeal, saying:
I think there were -- there may well have been tactical reasons that this motion was brought, things were done, but I don't believe that is sufficient for me to deviate from the Deed of Gift. But perhaps the Appellate Division will believe so, and I would invite you to get the transcript and go to the Appellate Division.”
Was she, in effect, saying: “I cannot take the risk of ruling in favour of RAK, but, with the safety of numbers, the Appellate Division may feel less vulnerable.”?