The Great Lakes are not “an Arm of the Sea”

Published on June 11th, 2014

For the Governing Rules of the America’s Cup, nothing supersedes the Deed of Gift. In determining if a club is eligible to compete, the Deed states that ” Any organized 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, shall always be entitled to the right of sailing a match for this Cup…”

It is pretty clear what defines an ocean, but an “arm of the sea” is less so. When Chicago Yacht Club competed in the 1987 America’s Cup, with beloved Buddy Melges leading the Heart of America Challenge, it was considered confirmed that Lake Michigan of the Great Lakes was an “arm of the sea”.

Not so, says Scuttlebutt legal analyst Cory E. Friedman, who provides this report…

The “arm of the sea” provision was included in George Schuyler’s amendment to the Deed after the 1881 Cup Match, and was expressly to prohibit a two time Canadian Great Lakes challenger from challenging again.

There is a longstanding difference between navigable water (which the Great Lakes are) and an arm of the sea. An arm of the sea must be subject to ocean tides (as the Hudson River, a sunken river, is up to the Federal Dam at Troy, NY – near Albany). Although the Great Lakes and Lake Champlain are connected to the sea by the St. Lawrence Seaway, the Richelieu locks, and the NYS Barge Canal, formerly the Erie Canal used by the Canadian Challenger, they are not subject to ocean tides and are not arms of the sea. The Great Lakes have their own tides, but not ocean tides. George Schuyler knew all of that and used the term “arm of the sea” deliberately.

The Great Lakes are indisputably not ocean. Whether they are subject to maritime law and legislation passed after Schuyler’s day is irrelevant. They obviously are not ocean.

The order of the NY Supreme Court providing that the Great Lakes are an arm of the sea, which allowed Buddy Melges to compete, is obviously contrary to the Deed, wrong and of no precedential value as it was not contested. A bunch of yachties just waltzed in and got the court to sign an uncontested order with no evidence or adversary hearing. It would never hold up if contested. George Schuyler didn’t want the Great Lakes in the Cup and nothing can change that. His words and the intent derived from them rules the Deed.

As for the America’s Cup venue, Defender Oracle Team USA (OTUSA) and Golden Gate Yacht Club (GGYC) have expressly reserved the sole right to choose the venue. The Challenger of Record, Hamilton Island Yacht Club, and the rest of the challengers having no say, so there is no consent. However, if OTUSA and GGYC relented and asked for consent to a non-ocean course, as the Deed requires the course to be “on ocean courses, free from headlands”, the challengers would be fools to fail to get something in return.

Editor’s note: Chicago remains a candidate to host the 35th America’s Cup. As this venue is not an ocean course, and would require the mutual consent of the Defender and Challenger of Record, it will be of interest to learn, as Cory suggests, what the challengers will get in return.

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