On July 29, 2008, the Appelate Division of the New York Supreme Court ruled in favour of the Société Nautique de Genève and declared Club N�utico Espa�ol de Vela the rightful Challenger of Record for the 33rd America�s Cup, thus denying the Golden Gate Yacht Club that status.
Marian Martin talked to Alinghi legal counsel Barry Ostrager about this result.
Marian Martin: Did you expect this ruling?
Barry Ostrager: It was the position that we advocated and a position in which we had confidence.
MM: People at Alinghi have, quite naturally, expressed delight, but should they be concerned about an appeal?
Barry Ostrager: I don’t think the sailing community would look favourably on any further litigation initiated by GGYC that would further protract the timetable for the next America’s Cup. What we have now is an opportunity to proceed in the way that was originally contemplated, with a Challenger series open to teams from all over the world, in the manner in which the last number of America’s Cups have been conducted and, in a manner in which the America’s Cup could have been catapulted into being one of the première sporting events in the world.
MM: I understand what you are saying, but that wouldn’t necessarily stop BMW Oracle appealing. Do they have good grounds for appealing?
Barry Ostrager: They have the right to appeal and we believe that the Appeal Court would be most likely would be to uphold the decision on which the Appelate Division has already ruled, but you are correct; BMW Oracle does have the right to appeal and there is nothing anybody can do to prevent it.
MM: For the benefit of BYM readers who are not from the USA, could you explain the difference between the Appelate Division of the Supreme Court and the Appeals Court?
Barry Ostrager: The Appelate Division of the Supreme Court is the intermediate appelate court in the State of New York. The Court of Appeal is the highest appelate court in the State of New York.
MM: Do they judge things on different issues, or the issues the same in each case?
Barry Ostrager: The Court of Appeal concerns itself exclusively with points of law; the Appelate Division can consider points of law and fact.
MM: Would you recommend an appeal, if you were BMW Oracle’s lawyer?
Barry Ostrager: I wouldn’t presume to put myself in the position of legal counsel for BMW Oracle.
MM: What implications does this have for the cases that Team New Zealand has brought against Alinghi et alia?
Barry Ostrager: We think this is largely positive for the Team New Zealand case. Team New Zealand, as you know, signed a protocol that was negotiated between CNEV and SNG and that protocol provided that any dispute would be resolved by the Arbitration Panel that was being convened for the next America’s Cup. So, we’ve made a motion to dismiss the Team New Zealand initiated law cases, in the US, on the grounds that they should have been arbitrated, rather than litigated. Now that the Court has confirmed the validity of the CNEV challenge, it would seem logical and inevitable that execution by Team New Zealand of a signature to the protocol would require them to be governed by that protocol. So, to all intents and purposes they waived any right to pursue their litigation.
MM: Do you sail?
Barry Ostrager: No I do not.
MM: So, how does a lawyer, like yourself, who spends most of his time dealing with modern, commercial cases, get to grips with something that revolves around a 150 year old Deed and a subject he knows nothing about?
Barry Ostrager: The short answer to your question is that this is a matter of interpreting legal instruments and applying those legal instruments to the facts, which is something I do on a daily basis, in all manner of cases. So, aided as I was by the capable and congenial Team Alinghi task, it certainly was not an overwhelmingly difficult task to present the case as we have for SNG.
MM: Many people, including your client, feel the Deed of Gift needs modernising. Is there any precedent, in New York law, where a 150 year old, or even 50 year old trust document has been modernised by the courts?
Barry Ostrager: The Deed of Gift has been amended a couple of times – I believe it was in the 1980s – so there is a precedent for doing that. I believe that for a future amendment there would be a hearing process and a submission process and I think it would depend on what modifications were contemplated as to whether this charitable trust would be amended.
MM: Do you think there could be circumstances that might cause the Attorney General to consider a somewhat radical change, such as that Ernesto Bertarelli outlined in his "vision"?
Barry Ostrager: I think that is something that has to be evaluated and considered and I’m not prepared to give an immediate Yea or Nay, but I think it’s achievable.
MM: One last question; costs were awarded against GGYC, does that mean court costs, or are your fees included?
Barry Ostrager: It means they pay the court costs, which consist of various filing fees, printing costs, administration costs, and so on, but not legal costs.
MM: So not a great deal of money?
Barry Ostrager: No.
