Preserving the America’s Cup
Published on October 25th, 2021
John Longley, a veteran of five Australian campaigns for the America’s Cup, which included winning the Cup in 1983, remains active in the sport, and as he watches the planning for the 37th America’s Cup unfold, he questions the methods of his Kiwi neighbors.
While Royal New Zealand Yacht Squadron (RNZYS) may be the holder of the America’s Cup, their Commodore Aaron Young admits that possession does not imply control as the club is more spectator than arbitrator.
Longley disagrees in this commentary:
The beauty of the America’s Cup Deed of Gift is in its simplicity. The bare bones of the document are that the Club holding the Cup does so in Trust – that Trust being that it will comply with the Deed.
The Deed gives a complying Challenger “the right of a sailing match for this Cup…”
The Challenger and Defender can then make all the arrangements for the Match under the Mutual Consent Clause. If they cannot agree then they must sail a Match as specified by the Deed as occurred in 1988 and 2010.
If the Challenger wins they must agree to the terms of the original Trust. Basically that is it.
As reported in Scuttlebutt, RNZYS Commodore Young explained that they have a long standing agreement with Emirates Team New Zealand (ETNZ) to organize all aspects of the next match including indemnifying the Club from any “liability financial or otherwise”.
I ask myself does the RNZYS fully understand the Trust it has accepted. I would hold that in simple terms RNZYS is the principal as to the Trust and ETNZ simply their agent.
Commodore Young states, “At this time we do not have a viable New Zealand defense proposition,…” and as we have heard nor does ETNZ have an overseas proposition at this time.
So RNZYS’s agent is presently unable to fulfill its contract. If this situation continues there must come a time when RNZYS dismisses their agent for non-performance.
They would surely then start discussions with Royal Yacht Squadron (RYS), under the Mutual Consent Clause, to set the conditions for a match so RNZYS can meet the Trust they hold to satisfy the RYS’s right to a sailing match.
I wonder how much time RYS is prepared to give RNZYS before they demand that right.
Commodore Young states that the longstanding agreement they have with ETNZ “means the responsibility for conducting the 37th America’s Cup Defense…..rests exclusively with them.”
I disagree with Commodore Young and would argue that the responsibility under the Trust to conduct the 37th Defense rests with RNZYS.