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ACUP Deed of Gift language: "HAVING"

The Publisher
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Jul 30, 2008, 4:01 PM

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From John Rousmaniere: In response to my friend Cory Friedman (from Cory's post following the Appellate Division, First Department, 3-2 vote to reverse Justice Cahn on the law and reinstate Club Nautico Español de Vela (CNEV) as Challenger of Record), there is a statement by George L. Schuyler and John Cox Stevens providing good, strong evidence of their intent when they wrote the now famous and (I think) unambiguous “having” clause in the America's Cup Deed of Gift that requires a challenger to hold an annual regatta.

The statement goes this way: “There shall be an Annual Regatta for a prize cup, to be given by the Club. The Regatta to take place immediately after the second general meeting. There shall be an annual expedition of the Squadron immediately after the Regatta.” That’s Bylaw 13 of the Rules and Regulations that Schuyler, Stevens, and the three other members of the Rules Committee of the New York Yacht Club wrote after the club was founded in July 1844. The membership as a whole approved those bylaws in March 1845. Four months later the club held that regatta (which meant a fleet race). Then its squadron (fleet) headed out on that expedition (the club cruise). The Annual Regatta and Annual Cruise were still being sailed at the time Schuyler amended the Deed in 1887 (as, indeed, they are today).

When the Deed was drafted in 1851, just about the only experience Schuyler and Stevens had with fleet racing was the New York Yacht Club Annual Regatta (of course, there was that race around the Isle of Wight a year earlier). Here, therefore, was a simple, handy standard of race management experience.

Four points deserve emphasis.

First, anybody who wants an organized, well-run, fair race today can call up Peter Reggio. But back then, only yacht clubs ran races. Schuyler and Stevens were telling potential challengers through the Deed, in effect, “Race management is not portable, Commodore. You and your club have to be on your toes.”

Second, the founders’ prediction that the first regatta would be an ANNUAL regatta testifies to a lot of self-confidence and seriousness of purpose on their part. “Trust us, Commodore,” the Deed says. “Our club will be around long after we’re gone, and it’ll still be running races. Will yours?”

Third, the Deed of Gift doesn’t require the challenger to have experience running “an annual expedition.” While there’s plenty of serious racing on a New York Yacht Club Cruise today, until 1888 (the year after Schuyler altered the Deed for the last time) the Annual Cruise was just that - a cruise. The club’s only organized fleet races usually were in the Annual Regatta. Schuyler and Stevens were saying that the America’s Cup is only about racing. “We don’t care about cruising, Commodore. Just follow our example. Be organized enough to run a race, be around long enough to run more than one of them, hold your regatta every year on salt water, and so on. Just check off those boxes and we’ll accept you as a challenger. Now, how hard is that?”

Finally, the challenger must have race management experience because, after all, today’s America’s Cup challenger may be tomorrow’s Cup defender who has to run a Cup race. Recall the first words that George L. Schuyler and John Cox Stevens used in the Deed to describe the Cup: “a perpetual challenge cup.” “So, Commodore,” say Schuyler and Stevens, “who’s going to keep the Cup alive if it’s not the people who have won it? Don’t you agree?”

John Rousmaniere

R S Tsuchiya
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Jul 30, 2008, 10:16 PM

Post #2 of 23 (7917 views)
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Re: [The Publisher] ACUP Deed of Gift language: "HAVING" [In reply to]	Log-In to Post

I agree with my friend John Rousmaniere. Here’s more evidence:

In 1882, George Schuyler, with assistance from a committee of the NYYC, revised the original deed of gift. This revision of the deed introduced the now-famous “having” clause, among other changes. (Schuyler made a final revision in 1887, but kept the “having” clause.)

Why was the clause added? According to evidence that I’ll share with you in a moment, the NYYC was dissatisfied for having easily defeated two back-to-back challenges from inland Canadian yacht clubs (one by an obscure club, the other from the Royal Canadian Yacht Club) that apparently had little experience in racing large seagoing yachts. To make matters worse, the challenger was making plans to challenge again. Thus, the NYYC decided to revise the deed of gift to preserve the prestige and usefulness of the America’s Cup as a yacht-design contest.

Now for the evidence:
Buried in the archives of the New York Yacht Club, is a manuscript labeled: “Notes made by J. Frederic Tams at the request of Geo. L. Schuyler for his information prior to calling a meeting for the consideration of changes in the Deed of Trust.”

J. Frederic Tams, was an amateur helmsman and designer, a member of the NYYC since 1872. Historian John Parkinson writes "[Tams] was very active in Club affairs, a member of several America's Cup committees..." (Parkinson, "History of the NYYC", Vol. I, pg 122.)

Tams's notes reveal the rationale for revising the original deed and a draft of the new deed. Tams writes (with annotations in parentheses by me and italicized emphasis by me):

“…we see today a vessel (Tams is referring to the Canadian challenger, Atalanta) constructed by one of our own neighbors on inland waters navigated by both of us in common, virtually within speaking distance of each other, being dragged through the mud of the canal (the Erie Canal) on her way here to contend for this much coveted emblem. In addition to which she comes, not as the proved acknowledged champion of the section of the globe from which she hails, and of the model representing the successful type of that part of the world, but crude in finish and appointment and in an unfinished condition, and of a model and type essentially the same as the vessels she expected to meet, so reducing the contest initiated for the purpose of fostering and improving the models of seagoing vessels to a mere race between boats of neighboring clubs. And further, instead of being the champion selected after having proved herself worthy of that name by her superiority over all competitors, she comes fresh from the stocks, virtually untried in other words an experiment at the expense of the N.Y.Y. Club – neither does she come representing a country nor a section, but from a little local club consisting principally of open boats and with no stated regatta course for large vessels.”

This is Tam’s draft for the opening paragraph of the revised deed (with annotations in parentheses by me):

“Any organized Yacht Club, of any foreign country, incorporated, patented, or licensed by the Legislature, Admiralty or other Executive Department of such foreign country, ~~or State to which such Club belongs and~~ having a regular ocean-water course in the sea or in an arm of the sea or in both, practicable for vessels of three hundred tons, (‘propelled by sails only’ was scribbled in here) for its Annual Regatta, shall always be entitled, through any one or more of its members represented by any yacht or other vessel properly enrolled in that Club, of not less than thirty nor more than three hundred tons, measured by the Custom-house rules of the country to which the vessel belongs, to claim the right of sailing a match for this cup.”

So there you have it. Extra ammunition for whoever wants it.

Steve Tsuchiya

Paul Baehr
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Jul 31, 2008, 5:46 AM

Post #3 of 23 (7592 views)
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Re: [R S Tsuchiya] ACUP Deed of Gift language: "HAVING" [In reply to]	Log-In to Post

While I agree with the substantive comments on the deed, I think it is rather dimissive to call the Royal Canadian Yacht Club, founded in 1844, 32 years before their ill-advised challenge, an "obscure Canadian Yacht Club".

R S Tsuchiya
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Jul 31, 2008, 6:26 AM

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Re: [Paul Baehr] ACUP Deed of Gift language: "HAVING" [In reply to]	Log-In to Post

Paul,
I stand corrected. You're right, unlike the 1881 challenge, the 1876 challenge was connected with an established club.
Steve Tsuchiya

martinmyles
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Jul 31, 2008, 7:51 AM

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The reasoning used by the board is flawed: in fact, the key word is “annual”, not “having” - regardless of whether CNEV have a regatta or not, there is insufficient reason to believe that the event is annual – clearly if they decide that CNEV does not have a regatta, then it can’t be annual or bi-annual or tri-annual; but even if they decided that CNEV does have a regatta, the only evidence that the frequency of the event is annual rather than something else, is that CNEV claims that it is annual. How can that possibly sufficient evidence? I think that you need at least 2 yearly instances of the event, combined with evidence that the intention is to continue having it as a regular event, to claim that the event really is annual (and even then, it's stretching it - most people would need to see 3 or 4 instances to be convinced that they stand behind their stated intentions).

In effect, the board is saying that CNEV is not lying about the frequency of their regatta based solely on that fact that CNEV tell them that they are not lying. What a farce… and a waste of time! Plus I’m dying to see these giant multihulls in action!

The Publisher
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Jul 31, 2008, 2:10 PM

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Re: [The Publisher] ACUP Deed of Gift language: "HAVING" [In reply to]	Log-In to Post

From Tim Minogue:
It’s remarkable that John Rousmanierre should quote a statement regarding the 1844 bylaws of the NYYC as clarifying the intent of the “having” clause of the America’s Cup Deed of gift. Considering that this was 7 years before America sailed around the Isle of Wight, and 13 years before the first Deed of Gift was framed (1857, not 1851 as John states), it’s incredible that Schuyler should be so clairvoyant about the Deed.

Unfortunately, the first Deed of Gift did not contain the words “having for its annual regatta”, these did not appear until the framing of the second Deed in 1871. In fact the first Deed appears to be quite neutral on the subject of whether or not an annual regatta should have already taken place.

Regarding John’s four points, it should be said that ascribing thoughts, words and motives to long dead historical figures in the absence of actual statements is an error that would get you heavily criticised in a high school history essay. The words and motives he ascribes to Schuyler and Stevens are unlikely constructions that are more likely to reflect John’s opinions than the opinions of Schuyler and Stevens.

However, at least John’s actual quotation of Schuyler has forever put to rest the contention that the term “Annual Regatta” cannot describe an event in the future. The fact that Schuyler used “annual” to describe an event that had not occurred at the time the statement was written should give great comfort to Ernesto’s lawyers.

jrousmani
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Aug 1, 2008, 9:07 AM

Post #7 of 23 (6384 views)
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Re: [The Publisher] ACUP Deed of Gift language: "HAVING" [In reply to]	Log-In to Post

Few discussions can be as explosive as one about the America's Cup! I've always found that a helpful way to understand what someone means is to look at the assumptions undergirding the language. Don’t do what some judges do and haul out a high school grammar that was published nine years after he said it. Instead, take a close look at the writer’s own experience with those words. If I say "football," you'll need to know if I'm an American or a Brit. Context can't be 100% predictive, but it can aid in imputing intention.
Here, the issue isn’t the notorious “having,” which merely confirmed the relationship that everybody knew already existed between yacht clubs and annual regattas. The key words are “yacht club" and "organized yacht club,” both of which are in every Deed of Gift, from 1857 through 1887. “Yacht club” -- the only participant in a Cup match according to the Deed -- appears three times in the first Deed, which also required defending clubs to hold an Annual Regatta. What did those words mean to the writers? They had founded a pioneer American yacht club and dutifully organized it with bylaws, one of which required a regatta to be sailed every year. Instead of promising to run a race but neglecting to do so, as one club did recently, that yacht club fulfilled its obligation, just like other clubs back then (the America’s Cup was won at the annual Royal Yacht Squadron regatta around the Isle of Wight). So it seems the founders made a reasonable assumption: yacht clubs have annual regattas, because that’s what yacht clubs do.
Of course, the risk of making an assumption is that some day it might end up being ignored in a court.

John Rousmaniere

tim minogue
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Aug 1, 2008, 11:23 PM

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Re: [jrousmani] ACUP Deed of Gift language: "HAVING" [In reply to]	Log-In to Post

John

Assuming that a club will have an annual regatta and making it a prerequisite for entry to the Americas Cup are two different things.

The first Deed of Gift clearly does not state that an annual regatta is a prereqisite.

The second Deed was created specifically to block entries from the Great Lakes after the challenges of Countess of Dufferin and Atalanta had proven to be an embarrassment, This was done by introducing three measures -

1. Yachts should sail to the venue on their own bottoms
2. A losing yacht shall not challenge a second time unless a two years has elapsed or an intevening contest has taken place.
3. Challenging club should have an ocean water course on the sea or an arm of the sea

To enforce the third condition, the phrasing chosen was -
"Any organized yacht club ... having for its annual regatta an ocean water course"

Not that the phrase does not say "having its annual regatta on an ocean water course". There is a subtle but important difference.

If you examine the actual phrase carefully it is clear that the true intent is "having, for its annual regatta, an ocean water course" or to structure it more clearly, "having an ocean water course for its annual regatta". It is the ocean water course that is the prerequisite for entry, not the regatta.

The quote in one of the above posts from “Notes made by J. Frederic Tams at the request of Geo. L. Schuyler for his information prior to calling a meeting for the consideration of changes in the Deed of Trust.” support this reading of the Deed. Tams' draft of the wording of the second deed stated “Any organized Yacht Club,...having a regular ocean-water course in the sea or in an arm of the sea or in both... for its Annual Regatta". This clarifies the intent further, it is the ocean water course that is a requirement for entry, not the annual regatta.

Clearly a club situated on the ocean has an ocean water course even before it has sailed it's annual regatta, and the quote you provided from Schuyler and Stevens commencing “There shall be an Annual Regatta for a prize cup" proves conclusively that an annual regatta, even a first annual regatta, is something that can be scheduled in the future. In this regard, CNEV is clearly a compliant club, having an ocean water course for its annual regatta, even though that annual regatta took place for the first time several months after the challenge was submitted.

I can understand that a non-sailing judge may misinterpret the "having its annual regatta" phrase if they thought the words regatta and course were equivalent in meaning. In this case the phrase would become something like "having for its annual regatta and ocean water regatta". But as sailors, we know that "regatta" and "course" are not equivalent terms, and this misconstruction is not valid.

Your assumption that George Schuyler would not have countenanced the possibility of a real yacht club not having an annual regatta may be true, but many clubs these days do not have an event that can they term their annual regatta as was the custom in the 19th century. My own club (a royal club that has in the past been a challenger for the Americas Cup) does not have an annual regatta per se. It has an opening day and closing day regatta each year, and it holds a variety of other regattas, some of which have been held for several years in a row, however none are named or could be regarded as being the club's "annual regatta".

As I said before, your attempt to ascribe thoughts, words and motives to long dead historical figures based on scant evidence would get you a slap on the wrist from your history teacher. I agree that context can make a difference to understanding, such as the widely reported motives for ammending the first Deed to eliminate the Canadians. However that is very different from trying to reconstruct the attitudes and mental states of someone who died long ago, based on a personal interpretation of the attitudes and morals of the time. This a highly flawed approach to historical interpretation.

martinmyles
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Aug 4, 2008, 1:50 AM

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Tim, I think that you're interpretation is too limited: to decide whether the statement: "CNEV has an ocean water course for its annual regatta" is true or false, two things must be true: they must have an ocean water course that they can use, AND they must hold an annual regatta. If they have an annual regatta but don't have an ocean course to sail it on, the statement is false, and if they have an ocean course that they could sail on but if they don't have an annual regatta, then the statement is false also.

Think of it more simply by looking at an similar requirement: "CNEV must have a red spinaker for its yacht". Cleary if CNEV owns a red spinaker but doesn't have a boat, CNEV doesn't meet this requirement. The mere intention of getting a boat at some point in the future would make no difference at all. For the same reason, the Deed of Gift requires that there must actually be an annual regatta organised by the challenger for the challenge to be valid, AND that there be an ocean course on which to sail it.

You can interpret this in two ways - losely speaking, if CNEV has an ocean course on which it could sail its annual regatta, but if in fact the annual regatta was held on a lake, they could possibly still meet the deed of gift requirement. more strictly, one could claim that the requirement is that the annual regatta actually be held on an ocean course (and not on a lake). On this I don't think that the statement is clear, and then you'd have to wonder about the actual intention behind the language: did the people who drafted it intend this requirement to filter out non-ocean based yacht clubs? regardless of the answer to that question, it is not at all ambiguous in terms of the requirement that there actually be an annual regatta, which in my view is not the case for CNEV.

AustraliaII
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Aug 5, 2008, 1:57 AM

Post #10 of 23 (5483 views)
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In relation to Martin's final comment, I would take his argument further and contend that the donors of the Cup (and the New York Yacht Club) did set out 150 years ago to exclude non-ocean-based clubs as challengers. This would have included (rather ironically) the Cup's current Swiss trustee Societe Nautique de Geneve (which holds its annual regatta on Lake Geneva).

Not only is the manner in which CNEV has challenged for the Cup always been suspect, but even the precedent that the Appellate Division of the New York Supreme Court cited to exonerate CNEV - ACAP 31 - is questionable. On that occasion, the Royal New Zealand Yacht Squadron agreed, in accordance with the Deed of Gift, and presumably by "mutual consent" with the then Challenger of Record Yacht Club Punta Ala, to accept Alinghi's 2003 challenge if SNG conducted "an" annual regatta (note I use the word "an", not "its") on an ocean water course. To satisfy this requirement, SNG has conducted an annual regatta in Cannes - a 12-metre regatta - every year since 2000.

Much like CNEV, which has "promised" to hold its annual regatta in exchange for acceptance as Challenger of Record, SNG is hosting an "annual regatta" in Cannes under sufferance. Even back in 2000, when Alinghi first challenged, Ernesto Bertarelli sniffed disdainfully at the Deed's requirement for his club to hold a regatta, whinging that SNG was the victim of an obsolete and biased effort by the NYYC in the 1880s to exclude non-ocean-racing clubs. This indicates that once Alinghi loses the Cup that it will no doubt dispense with this archaic 12-metre regatta, which (as Paul Cayard noted in his blog last year) doesn't even feature SNG entries - surely a logical step of hosting one's own regatta is to encourage one's own members to race! (But then, I suppose I'm opening up a whole other argument!)

Although the Deed’s whole preamble identifying who is eligible to challenge for the Cup is sadly ambiguous in its wording (and it's only been muddied further by the Appellate Division's ruling), a cursory reading suggests that not only should a yacht club interested in challenging for the Cup already conduct its own regular, established annual regatta (implying more than one in succession) before it issues its challenge, but the Cup is only open to clubs that conduct those regattas on the open sea or on an arm of the sea. This therefore would exclude lake-based yacht clubs because they conduct their annual regattas on lakes or tributaries - and in SNG's case, it doesn't have the “out” that the Chicago Yacht Club enjoyed (when it challenged in 1986) because, according to an earlier New York Supreme Court interpretation of the Deed’s 'arm of the sea' clause, a lake can only qualify as an arm of the sea if it is also links with an estuary that runs into the sea. Lake Geneva is neither open ocean nor even an estuary - nor does SNG run 'its' annual regatta (note emphasis on 'its', not 'an') on either the open sea or an arm of the sea.

It is clear to me that if the SNG (which was founded in 1872) had challenged for the America's Cup not long after the third Deed of Gift was drafted in 1887, then the NYYC would have ruthlessly rejected its challenge (1) because the challenge would not have complied with the NYYC's interpretation of an ocean-based club (even if it did promise to hold "an" annual regatta outside Switzerland) and (2) because back then the idea that the Swiss (like the Canadians in the 1880s) could one day become a maritime power - whether in business or in the America's Cup - would have been preposterous!

Therefore, it’s reasonable to argue that not only is the current Challenger of Record ineligible to sail for the America’s Cup (a point underlined by the fact that it currently has no representative yacht!), but that the current Cup trustee should never have been permitted to sail for the Cup in the first place, let alone win it!

The best solution to this whole sorry mess would be for the New York Court of Appeals to rule that CNEV (by virtue of not even having a representative yacht) does not qualify as a yacht club “having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both” and to dissolve its challenge and therefore the SNG/CNEV “mutual consent protocol”. The Court of Appeals doesn’t even have to necessarily accept GGYC’s challenge – it can rule that as there is effectively no valid challenge from CNEV, then in accordance with the Deed of Gift, fresh challenges for the Cup should be issued within 30 days (effective from the end of the previous challenge, which has been effectively tolled since 3 July 2007). It would then be up to the cleverest challenger to get their notice in first and seek robust negotiations with Alinghi/SNG for a fairer, more equitable protocol.

Pepe
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Aug 5, 2008, 3:11 AM

Post #11 of 23 (5472 views)
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It is unambiguous that Valencia is a wonderful venue for sailing.

tim minogue
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Aug 5, 2008, 7:07 AM

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Re: [martinmyles] ACUP Deed of Gift language: "HAVING" [In reply to]	Log-In to Post

Martin,

I'm sorry, but you have completely bamboozled yourself with tenses. None of the examples you give are limited to the past tense. "CNEV must have an ocean water course for its annual regatta". Fine, the annual regatta may be scheduled for the end of the season, just as George Schuyler planned for the future NYYC Annual Regatta in 1844.

"CNEV must have red spinnaker for its yacht" - when? now? at some time in the future? can it get the spinnaker before it gets the yacht?

"I must have some new skis for my holiday" - fine, but at the moment I dont have either.

"I must have a new sail for the laser nationals" - ditto

Simply put, CNEV clearly has an ocean water course as it is located in the Desafio Espanol base. It is a matter of record that it had an annual regatta on that course some time after it challenged for the AC.

AustraliaII

You make a distinction between the Chicago YC being on an arm of the sea and SNG not being on an arm of the sea.

Lake Michigan is at an altitude of 176m above sea level and ships and boats can only pass through from the ocean by pasing through a series of locks in the St Lawrence Seaway. Lake Geneva is at 372m above sea level, and the path of the Rhone river passes through it, although locks are needed for vessels to get from the Med to the lake. And the difference is? 200 metres I guess.

Maybe you are right, maybe SNG (and probably Chicago YC) should never have been allowed to enter. But after winning two America's Cups without anyone objecting to their presence, I think that horse has well and truly bolted.

martinmyles
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Aug 5, 2008, 10:06 AM

Post #13 of 23 (5424 views)
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Tim,

You are correct to point out that the temporal element is an important one, and should not be overlooked because it is something the board discussed and was obviously confused about. I think that unnecessary confusion on this point has been intentionally and somewhat dishonestly introduced by the challenger’s defence: they claim that it is unclear at what point in time the requirements for a valid challenge must be met: in particular, whether the requirement for an annual regatta couldn’t be satisfied simply because there is a high probability of it being satisfied at some point in the future. I don't think there's any ambiguity here, even though a little reflection may be required. The way I see it, question that needs to be answered is this: as of the time CNEV challenged for the AC, was the statement "CNEV has for its annual regatta an ocean course..." true or false? You seem to be saying that it was true because the following statement: "CNEV will have for its annual regatta an ocean course" was true at the time. But even if the probability of the occurrence of a regatta and its being annual etc. is very high, it doesn’t make the first statement true. If you say: “Tim must have a new sail for the nationals”, and imagine that it is the requirement for something – would you think you’ve met the requirement prior to getting a new sail? Even if you’ve ordered it, you’d only meet the requirement once you actually get it – you can’t just say “it’s on its way"!!

tim minogue
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Aug 5, 2008, 6:57 PM

Post #14 of 23 (5356 views)
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Re: [martinmyles] ACUP Deed of Gift language: "HAVING" [In reply to]	Log-In to Post

You state that the question that needs to be answered is this: as of the time CNEV challenged for the AC, was the statement "CNEV has for its annual regatta an ocean course..." true or false?

It's clearly true. CNEV had an ocean course. The fact that they were planning to have a regatta in the future on that course does not make the statement untrue.

And as far as Tim having a new sail for the nationals, I have a new sail, but the nationals don't occur for a while, does that make the statement untrue?

A legal interpretation of the Deed isn't hard in this case, because the phrase is not ambiguous and cannot be interpreted to mean "must have already held an annual regatta" without looking outside the four corners of the Deed for some intent to the contrary, something that the Mercury Bay ruling prohibits.

If you do look outside the Deed for extrinsic evidence, the position is supported. The ammendments that resulted in the second deed were clearly to eliminate challenges from the Great Lakes, and the phrasing of the Deed, based on a proper grammatical analysis as well as the form of a previous draft of the document from J. Frederic Tams which stated "having a regular ocean-water course in the sea or in an arm of the sea or in both", clearly shows that the desired prerequisite for entry was the body of water, not the timing of the regatta.

martinmyles
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Aug 6, 2008, 2:48 AM

Post #15 of 23 (5288 views)
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Re: [tim minogue] ACUP Deed of Gift language: "HAVING" [In reply to]	Log-In to Post

>You state that the question that needs to be answered is this: as of the time CNEV >challenged for the AC, was the statement "CNEV has for its annual regatta an ocean >course..." true or false?
>
>It's clearly true. CNEV had an ocean course. The fact that they were planning to have a regatta in the future on that course does not make the statement untrue.

Well maybe I'm being dense, but the fact that they have never had a regatta in the past but were planning to have one in the future (on their ocean course) does indeed make the statement false: "its annual regatta" means that whoever "it" referred to must have an annual regatta - an "it" referres to the challenger. At the time of the CNEV challenge at least, the only evidence to support the claim that CNEV has an annual regatta was that it simply intended to have one. That is not sufficient evidence of their having a regatta, annual or otherwise: is this not common sense? If I say "I have a toga party every year" and I have never had a toga party in the past, would you think that I'm telling the truth or not? Would it make a difference if I told you that I was planning to start this tradition at some point in the future? I don't think so.

tim minogue
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Aug 6, 2008, 3:18 AM

Post #16 of 23 (5284 views)
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Re: [martinmyles] ACUP Deed of Gift language: "HAVING" [In reply to]	Log-In to Post

So in June 1845, if you asked George Schuyler whether the NYYC was having its annual regatta on an arm of the sea, would he have answered yes or no? It was in their by-laws, it had been scheduled and preparations were underway, but the first annual regatta had not yet taken place. An answer of "no" would seem a ludicrous response to the question.

martinmyles
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Aug 6, 2008, 5:51 AM

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Re: [tim minogue] ACUP Deed of Gift language: "HAVING" [In reply to]	Log-In to Post

Well, I guess he'd have to say "no", however ludicrous that may sound! Given the Mercury Bay ruling, and the rules of grammar and logic, I don't think there's any other the requirement in the deed of gift: we're not to look for extrinsic evidence given the unambiguous language, and that language must be strictly interpreted: Ocean Course, but no annual regatta --> not a valid challenge.

Pirate

AustraliaII
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Aug 8, 2008, 1:23 AM

Post #18 of 23 (5100 views)
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Re: [tim minogue] ACUP Deed of Gift language: "HAVING" [In reply to]	Log-In to Post

Tim

A couple of points:

1. Upon reviewing the New York Supreme Court’s 1984 decision on the ‘arm of the sea’ clause, I’ve realised that the court merely granted Chicago Yacht Club permission to challenge for the America’s Cup, it did not disclose its reasons for that decision. It was assumed that the evidence brought by the then Cup trustee Royal Perth Yacht Club and CYC - that the Great Lakes could be viewed as inland seas because they were significant to commercial shipping and that an 1851 US Supreme Court precedent had also recognised the lakes as equivalent to inland seas - had swayed the court’s decision.
2. You are right in saying that no one opposed SNG’s presence in America’s Cup XXXI. The America’s Cup Arbitration Panel in 2000 received submissions of support for SNG’s challenge from the then trustee Royal New Zealand Yacht Squadron and the New York Yacht Club. Indeed, the NYYC’s support of SNG’s challenge was consistent with its support of previous challenges by paper yacht clubs, such as Australia’s Sun City Yacht Club and Canada’s Secret Cove Yacht Club in the 1970s and early 1980s, where their challenges were (like Club Nautico Espanol de la Vela) accepted on the condition they also hold annual regattas on an ocean course. (I still stick to my view, however, that the NYYC of the 1880s would have unequivocally rejected a challenge by SNG received shortly after the 1887 redrafting of the Deed of Gift simply because [a] it is a lake-based yacht club and [b] it would have feared that a Swiss challenge, like the earlier Canadian challenges, would have been farcical!)

Nevertheless, I maintain that it is questionable whether, in accordance with the Deed, SNG should ever have been allowed to compete. The fact that SNG had to hold an ocean-based annual regatta to qualify as a challenger, where the CYC did not, implies that the New York Supreme Court accepted that CYC was indeed a yacht club ‘having for its annual regatta an ocean water course on … an arm of the sea’. I’m not sure the same would have occurred if SNG had applied for a similar interpretation (SNG actually first contemplated challenging for the Cup as early as 1984, at the same time as CYC).

In fact, SNG tried to use the CYC precedent to argue before ACAP in 2000 that it did not have to hold an annual regatta – period. ACAP disagreed. Hence, SNG has had to hold an annual regatta in Cannes every year since 2000.

I also agree with Martin’s argument – the key words in the Deed are ‘having for its annual regatta’, not as you argue, ‘an ocean water course’. By your logic, this would definitely mean SNG was always ineligible to challenge for the America’s Cup – after all, who ever heard of anyone having for their annual regatta an ocean course on a lake!?! (Please don’t get me started again on the whole ‘arm of the sea’ thing, but it’s inescapable that SNG's annual regatta is traditionally conducted on Lake Geneva.)

Also, if the key words are an ‘ocean water course’, this implies that the challenger must already have an annual regatta – after all, how could you have an ocean water course if you don’t have an annual regatta? You're basically arguing that CNEV qualifies because it is based on the ocean. Yes, CNEV is based in Valencia (as is evident in its name), but that isn’t sufficient grounds to prove it ever had an ocean course (real or intentional) in Valencia when it challenged – Valencia is merely CNEV’s home port. Having an ocean course in mind, but not (as Martin argues) an ocean course they actually use, before they even plan an annual regatta first, seems to me to be putting the cart before the horse! You’d normally plan the regatta and then assess which parts of the ocean off your port were suitable for staging races before deciding on the final course.

The fact is CNEV had no clear idea when it first challenged SNG where its ocean course would be, nor what kind of annual regatta it would hold (CNEV was barely two weeks old when the 32nd America’s Cup was decided and it made two hurried attempts to hold regattas that were its annual regatta when its challenge first came under fire before it finally held its ‘official’ annual regatta in November last year). The term ‘having for its annual regatta an ocean water course …’ strongly infers to me that the challenger should be both aware of the type of annual regatta it holds and the ocean course on which it is based. Ergo, this implies that the challenger is an already established, bona fide identity and already has an established, ongoing annual regatta.

It also dismays me that the Appellate Division ignored GGYC's argument that CNEV has no fleet. The Appellate Division just assumes that being incorporated and recognised by the appropriate sailing authority, even though CNEV conducts little, if any sailing activity, is enough to justify its existence. Of course, it’s not surprising that CNEV is registered with and recognised by the Real Federacion Espanola de la Vela - it was, after all, formed by RFEV and is in effect RFEV’s puppet!

The inescapable fact is that CNEV is a sham yacht club and non-entity. SNG knows it, GGYC knows it, RFEV knows it and even CNEV knows it (precisely because CNEV and RFEV are intertwined). CNEV has no fleet, no identifiable members (not including the five RFEV board members that are on its board of directors) and no permanent club house or contact details (eg telephone details or website). CNEV had no annual regatta or ocean course (whichever you think is more important) at the time its challenge was lodged and most importantly - now that Desafio Espanol has aligned itself with the Real Club Maritimo del Abra in northern Spain - no challenger to represent it (which puts further doubt then on the location of its clubhouse, as it was operating initially out of Desafio Espanol’s syndicate base in the Port America’s Cup). You can also be assured CNEV won’t find a challenger – its name is mud with the bulk of the sailing fraternity in Spain precisely because it was manufactured by RFEV to start with and any other prospective Spanish challenger (there was speculation there might be three for the next Cup) will be too self-respecting to get into bed with CNEV.

So where does this leave SNG’s bold new protocol for the 21st century? Who knows? But it can hardly be valid when the so-called Challenger of Record has no challenger to speak of and will be forced at some point to resign from that position when it is unable to enter a yacht into the challenger competition (something that is unprecedented in the history of the America’s Cup; prospective mutual consent challengers have bowed out due to lack of funds and resources before, but never a Challenger of Record). The Appellate Division should have taken these points into consideration when it considered extrinsic evidence outside the four corners of the Deed of Gift.

Cheers

Damian Christie

tim minogue
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Aug 8, 2008, 7:55 PM

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Damian
It is ironic that the clause that was added to the Deed of Gift to keep the Canadians from the Great Lakes out of the event,should be reinterpreted by the NY Supreme Court to allow a U.S. club from the Great Lakes to enter.

The legal cases that I have seen that mention “arm of the sea” seem to generally agree that an arm of the sea should not be fresh water, should be at sea level and should be tidal. On this basis I agree that neither Lake Geneva, nor the Great Lakes qualify, and it is a real shame that the court ruled in favour of Chicago Y.C., as it weakens the Deed going forward.

SNG were able to get around this by having an annual regatta on the Mediterranean, but I agree that a strict reading of the Deed, particularly focussing on the ocean course, would have prevented them entering in the past. However, that horse has bolted, the Swiss have won two America’s Cups in a row and it is way too late to complain about their eligibility.

To reiterate the interpretation of the “having” clause, the subject of “having” is clearly the ocean water course. It is a shame George Schuyler didn’t use commas in this part of the Deed as it would have made things clearer. With commas inserted the phrase becomes “having, for its annual regatta, an ocean course etc.” The participle and its subject are "having.. and ocean course" and the "for its annual regatta" is merely a description of what the ocean course is required for.

This paragraph of the deed deals with prerequisites for a challenge, and I think that it is inarguable that the prerequisite is the ocean course. The natural language of the Deed supports this, the stated motives behind the changes to the Deed when this section was added support this interpretation, and the phrasing of a draft of the second Deed support it as well.

You state “Also, if the key words are an ‘ocean water course’, this implies that the challenger must already have an annual regatta – after all, how could you have an ocean water course if you don’t have an annual regatta?”

People have been discussing the shortcomings of the Olympic course in Quingdao ever since it was first proposed however many years ago. Are you saying that this course did not exist in any sense until the Olympics started this week?

CNEV is located on the sea in Valencia adjacent to the courses used for the America’s Cup. Once that CNEV stated, as it does in its bylaws, that an aim of the club is to hold an annual regatta on the sea it would be ludicrous to suggest that they do not have a suitable course.

If the ocean course exists, the question of whether the annual regatta should exist at the time as the challenge is made, is at best ambiguous.

If the Deed was to say that entry was open to a club "having land on the waterfront for its clubhouse", does this require the clubhouse to already be constructed? If you assume that George Schuyler intended that only long established clubs could challenge, you would resolve the ambiguity one way, whereas if you assumed that George Schuyler was not against newly established clubs, you would conclude differently. Unfortunately George is not here to tell us his opinions, but we should be careful not to project our own opinions onto his persona, as John Rousmaniere did in the first post in this thread, in order to determine the outcome in this argument. All we can do is read the actual language of the deed, supplemented where possible by writings of Schuyler and his associates.

The court has tried to stay within the four corners of the Deed and not look at extrinsic evidence, and if they were to resolve the ambiguity in this case I assume they would not be able to apply a restrictive interpretation of the phrase. So far the Appellate Court has taken a less restrictive interpretation of "having" than that used by Justice Cahn, and it remains to be seen whether the next appeal confirms or reverses this decision.

Tim

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Aug 12, 2008, 2:08 AM

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Tim

A nice chicken and egg question!

With regards to the Olympic sailing course at Qingdao, my answer is as follows. When Beijing was awarded the Games eight years ago, this meant the organisers were commissioned to organise a sailing regatta. Having been commissioned to organise a sailing regatta for a range of boating classes, they would have then decided on suitable ocean courses to run this sailing regatta.

The Chinese IOC would, of course, have had a location in mind (and I stress in mind) for an Olympic sailing regatta - that is, Qingdao - when Beijing decided to bid for the Games, but the ocean course itself - and in particular the form, length and breadth of that course - would not have become a reality until after the Chinese had won the bid for the Games and then been appointed to stage the Olympic sailing regatta. Therefore, the ocean course is still dependent on there being some sort of regatta. You can't have the ocean course without the regatta, and the idea of an ocean course is meaningless if there is no regatta that precedes it.

While the Olympic sailing course certainly was a reality before this week, it was certainly not a reality before Beijing's bid for the Games was accepted. All Beijing had in mind for a sailing regatta was a broad location, not a specific ocean course.

The same applies for CNEV. Again, I would argue that to have an ocean course, you must already have a regatta. CNEV had only Valencia in mind to hold a sailing contest - it did not have a sailing contest and certainly no concrete ocean course when it challenged. The Deed of Gift is written quite specifically (and in my mind unambiguously) on the presumption that the challenging yacht club already runs races (doesn't just promise to run races at some unspecified, future time as CNEV did) on an ocean course or an arm of the sea or both.

I also query your statement that CNEV is situated near the America's Cup course (a suitable ocean course) off Valencia. So what? That doesn't mean CNEV has either an ocean course or a regatta. It just simply says it's located near the America's Cup course!

My answer is simple: the chicken comes before the egg! For there to be an ocean course, there must be a sailing regatta. Regattas breed ocean courses, just as chickens lay eggs!

The NYYC decided to host the America's Cup long before it would have settled on where to stage it (whether that be New York, in the first half of the 20th century, or Newport, Rhode Island, in the second half). it is ludicrous to suggest NYYC chose the venue first and then came up with the yacht race. 'Commodore, we want to race in New York, but we need a race and a prize?' 'How about that useless silver ewer in the cupboard?' 'Oh, yes, why not?' It doesn't sound right to me somehow!

I do agree with your statement that is unfortunate that Mr Schuyler did not put commas in the infamous 'having' phrase. The 'having' phrase is proving as unfortunate as the statement later in the same preamble that the race will consist of a yacht propelled by sails only of the Challenging Club against 'any one yacht or vessel' of the Challenged Club. I still argue to this day that this unambiguous statement was designed to exclude fleet defences, not encourage mismatches between catamarans and monohulls! (But this opens another argument entirely!)

Cheers

Damian

tim minogue
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Aug 12, 2008, 6:05 PM

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Damian

In terms of yacht racing there are three possible meanings for the word course:

"a circumscribed area of land or water laid out for a sport as in 'the course had only nine holes'". In other words, a large body of water on which racing can take place.
A start line, finish line and a list of turning marks that make up an individual race
The direction of movement of a vessel at any given moment

George Schuyler clearly did not intend meaning number 3. Regarding whether he meant meaning 1 or meaning 2, consider New York Harbour. It is a body of water with a set of fixed navigation marks that were used for racing, which could be supplemented by additional buoys which could be laid when required. In addition the NYYC used a body of water outside Sandy Hook for racing. These were generally referred to as the "inside course" and the "outside course".

When the NYYC members referred to the "inside course", did they mean a specific start, finish and order of marks, or did they mean the entire body of water containing those marks used for racing. When they referred to the "outside course", did they mean a large body of water outside Sandy Hook, or a specific layout of turning marks laid in the vicinity of the Sandy Hook lightship, and whose arrangement and location varied depending on the event and wind direction?

I think that Schuyler used the word "course" in the Deed to describe the body of water on which racing took place, not a specific arangement of turning marks. Used in that sense, the course at Qingdao existed as soon as the body of water to be used was nominated. Similarly, CNEVs course existed as soon as they passed their club bylaws stating that they would be having an annual regatta on the ocean.

tim minogue
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Sep 29, 2008, 7:10 PM

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The GGYC Court of Appeals Brief has now been released. It makes a point of including the words "ocean course" whenever it refers to the "having" clause, so perhaps the above arguments have not been lost on GGYC's lawyers.

However, on page 24 they try to negate this interpretation by insisting that -

'In the context of the Deed, the participial phrase "having for" clearly means "with," and requires that a challenger must be an organized yacht club with an annual regatta on an ocean course on the sea or an arm of the sea, or one which combines both. See, e.g., Century Dictionary:An Encyclopedic Lexicon of the English Language 6952-53 (1891) (deining "with" as "[h]aving, possessing,bearing, or characterized by").7

Footnote 7, referred to by the above paragraph, states -

For equivalent uses of the phrase, see, e.g., Howard v. Ingersoll, 54 U.S. 381, 413 (1852) ("land having for its eastern boundary the State of Georgia") (emphasis added), and Marconi Wireless Telegraph Co. v. National Electric Signaling Co., 213F 815, 834 (E.D.N.Y. 1914) ("The electrolytic detector is a device having for its lower terminals a small platinum cup containing a dilute acid solution.") (emphasis added).

The brief's claim that "having for" clearly means "with" is contradicted by the examples in footnote 7. Substitution of "having for" by "with" in these phrases clearly results in incomplete of nonsensical phrases -

land with its eastern boundary the State of Georgia

The electrolytic detector is a device with its lower terminals a small platinum cup containing a dilute acid solution.

Similarly, substituting "having for" by "with" in the text from the Deed results in -

with its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both.

To a non-sailor who thinks that a regatta and a course may be equivalent in meaning, this might make sense. To a non-sailor a plausible interpretation might be -

with its annual regatta an ocean water (regatta, competition, tournament, race) on the sea, or on an arm of the sea, or one which combines both.

As sailors, however, we know that a course is not a regatta, or a race: it is the location on which these take place. The suggestion that in this case "having for" clearly means "with" results in incomplete and/or nonsensical phrases, and is clearly an incorrect application of English grammar.

tim minogue
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Sep 29, 2008, 7:29 PM

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Page 27 of the brief states -

The Deed's use of the word "annual" in the fourth paragraph lends additional support. Although an organization may optimistically announce plans for a "first annual" event based on an intention to continue the event indefinitely into the future, the most natural implication of specifying an "annual" event is to require that it has occurred at least once in the past. And the Deed originally provided for default matches to '"be sailed over the usual course for the annual regatta of the yacht club in possession of the cup"' Mercury Bay, 150 A.D.2d at 102 (quoting original Deed)(emphasis added)(Rubin, J., concurring). To the Deed's drafter, the term "annual" thus carried an expectation of occurrence and repetition, incompatible with an inaugural event.

Yet, as quoted in the first post in this thread, George L. Schuyler and John Cox Stevens give a clear example of their understanding and usage of the term "Annual Regatta" in the framing of the bylaws of the New York Yacht Club

The statement goes this way: “There shall be an Annual Regatta for a prize cup, to be given by the Club. The Regatta to take place immediately after the second general meeting. There shall be an annual expedition of the Squadron immediately after the Regatta.” That’s Bylaw 13 of the Rules and Regulations that Schuyler, Stevens, and the three other members of the Rules Committee of the New York Yacht Club wrote after the club was founded in July 1844. The membership as a whole approved those bylaws in March 1845. Four months later the club held that regatta.

So Schuyler and Stevens were themselves happy to refer to an event scheduled to take place in the future as an Annual Regatta.

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