Half a Lawyer

Isn’t it going to be very difficult to build this thing in Switzerland and get it to a Med venue in one piece?

Schnack: I’ve been looking at that and it’s true. When the boat's built and assembled it’s too big to take on a truck or in a plane and I started looking at heavy lift helicopters. There are some that have a payload that’s right up there; 20,000 kilograms is quite a lot of payload, but this thing isn’t going to sit inside, it’s going to be hanging underneath, and the sling loads are a lot less, so I  think that might make it not feasible.

You’ve got the windage as well.

Schnack: Yes, but if you pick good weather and the helicopter just shuffles along ….. I’m just trying to visualise it; it could be cool, you’d have to get permission from the French Government to fly it down the Rhone river valley and just pop it in the water. You wouldn’t want to fly it further than you had to; you’d tow it.

Anyway, I think in practical terms it will be assembled, but not bonded, in Switzerland and then taken apart and brought by road.

In that case, what’s to stop GGYC, saying you can’t do that ……….

Schnack: They can say what they like, they’d have to get the court to agree with it.

OK, but let’s suppose you get the thing to Valencia, in pieces, and Mr Ellison says “Heh, you can’t do that, the Deed of Gift says that should have been put together in Switzerland.” What happens then?

Schnack: We’re running the event, so we’re going to go ahead with the race. To stop that, they’d have to get the Jury to agree and the Jury would likely say it wasn’t up to them to interpret the Deed of Gift, go and see who wins on the water and then take it back to court. He might do that, but he couldn’t just say “You guys are out.” You know, in the old days of the late nineteenth century, the boats were put together in cruise configuration and sailed or towed across; even before that they were sailed across with a ketch rig and the big mast went on a ship and the sloop rig went in over there.

It’s right though that this is another area of uncertainty, a threat and it would be way, way better to have a meeting with them and say “This is how we see it …...”. That way we could have a race knowing that whoever wins the race is going to win the America’s Cup.

SNG has appealed and you said earlier that you are half a lawyer now, so, as Lucien seems to be tied up, maybe you can explain why you seem to have appealed an order that hasn’t been made?

Schnack: That’s right. It’s a juggling act, I think. As you know, in the introduction to the brief we say that Justice Cahn had three fundamental things to decide: One “is GGYC’s certificate valid?” he said “Yeah” and one “is CNEV a decent yacht club?” he said “No” and on what about setting the dates, he didn’t say anything. He did hint around it, but he didn’t say, so what do you do? We put all those things into the appeal documents and it may be that, right now, some of those don’t have any status, but they would gain status after Cahn makes his order. Then maybe the thing would be to appeal that order, then you’d say “Well, you’ve had our documents weeks ago.”, because suddenly all our arguments would have something to go against. So it would just be a case of saying we want to connect it to this order, rather than that order. So that may be the way to go, but I haven’t talked about it to Lucien, so I’m really just guessing.

Cahn did say that he’d come up with an order and he said he would order that GGYC had made a valid challenge and that CNEV wasn’t a valid challenger, because they hadn’t held a regatta before they challenged and that he would say something about the dates. That would be an appealable order, but the problem is he hasn’t come up with it yet, so the lawyers have said “We can’t wait for Justice Cahn, because the US Appelate Court isn’t going to wait, they’re going to go on holiday on the first of July. The America’s Cup doesn’t need us appealing in September, so our only chance is now. To get an accelerated hearing we’ve got to show urgency, so we need the good will of the Appelate Court and, if we waited weeks for Justice Cahn and then said we don’t like the decision so we are now appealing urgently, they could say “What’s urgent, you guys have been hanging around and, suddenly, its urgent.” That’s the point the lawyers were saying; we’ve got to show urgency, we’ve got to bring the thing forward and, even though Ernesto’s instinct was not to appeal, they said you must if only to get the dates and they think they have a good argument.

The fact is that Ernesto did publicly say, “We will not appeal” and you are appealing, so there are now people saying “We can’t believe his word.”

Schnack: He’s impulsive, he’ll say something without really thinking, but when he sits down and makes a plan and then announces the plan it’s a different matter. People who are open and prepared to talk off the cuff make mistakes and say things they might not have said if they had thought it over more and they’ve a right to change their minds. Ernesto said it, without asking anybody; it wasn’t a company decision, it wasn’t a board decision, he hadn’t discussed it with anyone. He wasn’t misleading anybody, it was how he felt when he was asked, then we talked about it and he decided that maybe appealing was the right thing to do.

One can imagine Justice Cahn putting the America’s Cup file to the bottom of the pile every day, because it’s just a boat race to him. Isn’t there a possibility that, by appealing, SNG will tip him towards deciding on a date they don’t want, when he might have been leaning towards 2009?

Schnack: The lawyers actually asked me if I thought that would happen and I said no, because I had a totally different expectation. I felt he’d say “Oh well, that knocks it on the head for me, it goes in the drawer now.”, but the lawyers say “No, he’s going to come up with a decision” and they think he is intellectually honest enough to come up with what he sees as the right decision, regardless of our appeal.

He did say something at the last hearing along the lines of “I suppose if this goes to appeal what I order will be irrelevant.” didn’t he?

Schnack: Yes and I’d done a bit of a probability exercise and thought that there was a 50/50 chance of Cahn giving dates not in our favour and a 50/50 chance of the Appeals Court doing that, so if we appealed we would have to lose in both courts, which is a one in four chance. Then I read what Cahn had said and thought we were back to 50/50, which seemed crazy because we must have May 2009 date, at the earliest. The lawyers say that isn’t the case though and that Cahn will make a decision, but I don’t know what happens if he rules in our favour and the Appeals Court say they think he’s wrong.

What will you really do if it comes down to July or October 2008?

Schnack: I don’t know, that really would be Ernesto’s call. I just know we could not have the 90 foot boat ready.

You do have Le Black, which could be lengthened, and we were sitting on the hotel balcony this morning and thinking “If today were July 2008, Le Black would be flying along and Larry’s big tri would be sitting still with its sails drooping.”

That’s right and another thing is that July would be difficult for them too, they’ve got to get the boat here and they wouldn't have much time to test. October would be another story and they would have a fully sorted 90 footer blazing around and we wouldn’t have anything that could compete with it.

I don’t know what Ernesto might decide. Maybe he’d say “OK I’ll just sail around”, but it would be a bit like us back in ’88. That wasn’t any fun, it wasn’t racing and Ernesto might not want to give them the satisfaction of winning that way. I really don’t know what he’ll do, it won’t be an easy decision.

Thanks Tom.