America's Cup: Dr Ross, I presume?

AUCKLAND, NZL (#1053) – Congrats to Hamish Ross (NZL), our former adversary when he was with Alinghi and colleague when he was with the 2013 America's Cup Race Management, who has just completed a PhD at the University of Auckland on the legal issues surrounding the America’s Cup.

Whether we've been on the same team or opposing, Hamish has always been courteous and respectful, and a good friend. Better yet, from time to time he likes to enjoy a glass of good red wine with his Cup friends, wherever in the world.

While your Ed. has not yet read his thesis, frankly I can't wait. It will be fascinating to see Hamish's take on Deed of Gift issues large and small, perspicuous and arcane. 

According to the Auckland District Legal Society ("ADLS") website:

Dr Ross’ thesis investigated the America’s Cup Deeds of Gift. A succession of three documents, first dating from 1857, they govern the America’s Cup competition. The third Deed, dating from 1887, continues to control the competition today and was the subject of intensive litigation in the New York courts between 1987 and 1990, and again from 2007 to 2010. The work involved research in the archives of the New York Yacht Club Library, as well as researching New York law – both as it was at various points in the nineteenth century and today.

While his conclusions will form part of a book yet to be published, in the course of his research, Dr Ross noted a number of troubling legal inconsistencies which kept arising. These, in part, concerned the continued acceptance by the New York courts of the Deeds as constituting a charitable trust in the face of factual inaccuracies and conflicting legal authorities. Upon coming across several claims made in the nineteenth century by former officeholders of the New York Yacht Club that the 1887 Deed of Gift (which still governs the America’s Cup today) was unlawfully made, they became the catalyst for further research in depth to ascertain the real legal basis of the Deeds of Gift.

Past litigation in the New York courts has been disastrous for Cup competition, with the loss of challengers and sponsors, as well as sporting and commercial momentum. Even today, the competition still suffers from the dispute that first arose in 2007. Dr Ross believed a better way needed to be found to resolve future competitor disputes – outside a courtroom and preferably by international sporting experts.

There are also a number of unresolved important interpretative uncertainties surrounding the Deeds. For example, what is the scope of a clause that allows competitors to agree the terms of their match? Are competitors permitted to agree match terms that conflict with the express terms and, if not, what are the boundaries of what the competitors can agree?

For example, can competitors agree to build all or part of their competing yachts outside their respective countries, when it is stated that each competitor must build their yacht in those countries? Can the competitors use components such as sail cloth, masts, rudders, or centreboards from abroad? It is provided that the use of centreboards cannot be restricted in any way, but competitors have agreed class rules that place restrictions on them. Could these agreed class rule restrictions be declared invalid, putting some competitors at a major disadvantage at the last minute, when it is too late for them to make changes to their yachts?

While I do not have a law degree let alone a doctorate, having dealt in detail with the Deed over the past four decades (including the 1988 and 2010 wins in the New York courts), your Ed. has a pretty good idea what the answers are to the foregoing questions – as well as what is the definition of "having" is. 

Sorry, Hamish, couldn't resist!

Teasing between good friends aside, Hamish is one of the world's very few true experts on the Deed of Gift – what for most is a stultifying subject too often debated by tendentious turkeys like Hamish and myself. Regardless, I can attest first hand that Dr Ross' Deed of Gift research has been insightful and most helpful in improving the understanding of that seminal document by all concerned.

According to the ADLS website, upon completing his PhD, Dr Ross said, “The Faculty of Law’s PhD programme gave me a unique opportunity to stand back from my Cup work over the past 20 years and review fundamental legal issues surrounding the Cup in a reflective environment, rather than within a white-hot crucible of a competitor dispute.”

“I hope my work will, in time, lead to a better understanding of the Cup as an international sporting event and to an appropriate, sport-based dispute resolution process, away from the courtrooms of competitors.” 

The full story about Dr Ross and his PhD is on the ADLS website here.

Again, congratulations to Hamish, and I shall look forward to debating the questions posited above, and others that will inevitably arise during AC36, over a glass or two of a good Central Otago Pinot.