Even by legal document standards, the GGYC Appeal Court brief is a confusing document, which trips over itself a number of times and makes several statements of fact that are simply not factual. One could say that the paragraph that starts the section headed “Nature of the Case” sets the tone for the rest, in the way that it confuses what is actually in the Deed of Gift with what the competition started to evolve into, well over 100 years after George Schulyer wrote that Deed. It says:
The America’s Cup is a world-renowned sailing regatta, governed by a Deed of Gift (“Deed”) dating back to 1857. Under the Deed, each round of competition is initiated when a yacht club of another country (the “Challenger of Record”) challenges the defending champion (“Defender”). The Challenger of Record plays an important role by negotiating the timing and rules of the competition (“the Protocol) with the Defender.
The fact is that, nowhere in the Deed of Gift is there a single mention of “Challenger of Record”, nor of “Protocol”. That isn't surprising for, as anyone who is even mildly interested in America’s Cup history knows that, those terms were unheard of, in connection with the America’s Cup, until the event changed into the multi-challenger event that it is today. Indeed, the very first time the term “Protocol” was used was on September 8, 1988, when the San Diego Yacht Club, as Trustee under the Deed of Gift, issued a statement called the "San Diego Protocol". The fact that GGYC’s solicitors should refer to “Protocol” in connection with the Deed of Gift is especially surprising since that San Diego document was drafted by none other than BMW Oracle’s present advisor, Tom Ehman.
There is some light relief to be found in the GGYC brief. One cannot help but smile, when you imagine Queen Victoria turning in her grave on seeing the Royal Canadian Yacht Club described by GGYC as one of two “less prestigious lake based clubs“. What could be more prestigious that a Yacht Club founded (in 1852) to not only serve as a recreational yachting club, but to act as an unofficial auxiliary to her Majesty’s Royal Navy and named "Royal Canadian" by permission of the monarch?
Likewise, sailor King Juan Carlos surely cannot have been amused to see CNEV described as the Royal Spanish Sailing Federation’s “alter ego” then read GGYC’s comments about “bungled events” and “without any experience in holding a regatta of this magnitude.”
Throughout the document, GGYC appears uncertain as to whether it is arguing a case which revolves around absolute adherence to the Deed of Gift, or which is about a modern multi-challenger event that was never envisaged by George Schulyer. In the end, its basic argument, once again, homes in on the meaning of the phrase “having for its annual regatta” and GGYC, ends a discourse on participles and tenses with:
“Under the canon of construction noscitur a sociis, the meaning of a word or phrase is ‘known from its associates,’ People v. Keyes, 75 N.Y.2d 343, 346 (1990), or ‘ascertained by reference to the meaning of words associated with it,’ Heintz v. Brown, 80 N.Y.2d 998, 1002 (1992) (citation omitted). See also Dole v. United Steelworkers of Am., 494 U.S. 26, 36 (1990) (‘The traditional canon of construction, noscitur a sociis, dictates that ‘words grouped in a list should be given related meaning.’) The Appellate Division majority missed this temporal symmetry entirely.”
Is GGYC right? Did the 3 Appelate Division judges who found in favour of SNG and reinstated CNEV as Challenger of Record get it wrong?
This weekend (September 4), BYM News decided to ask a Professor of English how he interpreted the now famous "having for" phrase from the sentence “Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match for this Cup, with a yacht or vessel propelled by sails only and constructed in the country to which the Challenging Club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup.”
