May 19: Alinghi counsel Lucien Masmejan talks to BYM News .
BYM. The way I read Judge Cahn’s recent ruling, was that he had in mind the original challenge date of July 2008. Alinghi wants July 2009 and has given its justification in an SNG letter to GGYC. Can you enlarge on that.
LM. Yes, as you say the original date was for a match in July’08. We received that challenge on 11 July 2007, they went to court on July 20, 2007 and its only yesterday that the judge has made his final rulings. So, if you strictly comply with the Deed of Gift, you have nine days elapsed before they went to court and the rest of the 10 months seem to be running from now, because Tuesday was the day that had as its consequence that the appeal time limit is starting to run and all consequences of the final judgement.
So, the end of the 10 months would be Jan 7 2009 and, because of times when no races can be raced in the northern hemisphere, the first possible date is 1 May 2009. So what we said in our letter was choose any date after 1 May 2009, but we know that in the northern hemisphere the July weather is much better than the May weather, so we said ‘Why don’t you agree to our proposal, which is July 09.
BYM. Do you think there is any chance that GGYC will agree to negotiate about a 2009 event, given that they clearly want October 2008?
LM. I hope that they will accept our argument and that they will consider the interest of the whole event, because if they want to force an event in October 08 it is pretty simple. We have not started to build a boat, so we won’t be ready for October, so that means the competition would be without any interest; it wont be a competition, just them taking the Cup. We propose they race in May, June, July 09, with a preference for July and, if they refuse those dates, it can only be because they fear that, if we have time to prepare ourselves properly they won’t make it. They are afraid of meeting us in true racing conditions.
BYM.. If GGYC won’t agree to your proposal, presumably this will go back to court?
A. Yes, that is true. We have made a proposal in writing and they have to take a position on that proposal and, if it is obvious that we can’t agree then the only way is to go back to Justice Cahn and have him making the decision.
BYM. Why would Russell Coutts now want to negotiate with Alinghi; especially since it is widely rumoured (I believe Ernesto mentioned it at the Audi awards) that, if Larry Ellison gets the America’s Cup, Coutts gets $55 million? Whether the amount is correct, or not, isn’t getting the Cup by a walkover the easiest way for him to earn his bonus, whatever it is?
LM.. If you look at the whole strategy that Ellison has been employing, the result is that for the first time in his life he will be entitled to sail a match for the America’s Cup, to be in the final of the America’s Cup and sail against the Defender. He never managed to do that on the water, in another Cup, it is solely the result of his victory in court.
For Coutts the benefit is huge, he will get a big, a very big reward, though I cannot say how much.
BYM. What would you do if Cahn says “I’ve already stated the original challenge is valid, so the date is July 2008? Would Alinghi default and let GGYC have the Cup?
LM. We have not made a clear decision on that right now, because we strongly believe that they should accept that the race should take place in 09. If we are forced to race in 08, as I told you we will have no adequate boat for that kind of race. They will have their race boat ready and we wont have it. There are two options; we can defend with some boat, with a very much reduced chance of winning, or we could forfeit, but that’s a question on which we haven’t yet taken a decision.
BYM. You do still have a very big weapon in that you can choose the venue?
LM. Yes, that is exactly that.
BYM.. There is speculation that GGYC will try to get Cahn to order you to name the venue sooner, rather than later. Can he do that, given that it is not mentioned in the Deed of Gift?
LM. I don’t see on what basis he could do that. He could only do that if it could be shown that we are in breach of our trustee obligations, without that I don’t see much basis in the Deed of Gift for him to make such an order.
We just have to remain reasonable, in selecting and communicating the venue. We can’t tell them where the venue is three days before, but as long as we remain in a reasonable time frame, I don’t see what Justice Cahn could do on that.
BYM. TNZ, Shosholoza and K-Challenge have all issued statements welcoming the decision. How do you feel about it?
LM. I have two feelings: the first is disappointment that we didn’t managed to convince the judge that our position was right and I like to think that we could win on appeal; from another perspective I’m glad, I’m happy, because we want to be back to sailing. That’s what Alinghi is good at doing; Alinghi is a sailing team, so we strongly hope that we can be back on the water as we have proposed.
BYM. Thank you Lucien for talking to BYM News.
May 20: BYM News received a copy of this letter from GGYC's lawyers to SNG & CNEV laywers, which suggests the case could be subject to a tolling agreement.