ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, February 11, 2010

The Race Goes to the Swift (Or to the Team with the Best Lawyers)

Americas Cup Trophy We reported over a year ago about the legal wrangling that has become a necessary prelude to a running of the world's most prestigious yacht race, the Americas Cup.  Well, the race is finally underway, sort of.  As reported here on, Race 1 of the best-of-three "Deed of Gift" match was scheduled for Monday but had to be postponed due to "unstable wind conditions."  Yesterday's attempt at a race was rendered impossible by waves that averaged 1.3 meters (about four feet) and that could have reached a peak of 1.8 meters (less than six feet).  If you are wondering what a "Deed of Gift" match is, I'm sorry to say that it would be easier to explain the plot of ABC's Lost than it would be to answer your query.  Suffice it to say that in a Deed of Gift match, like in a 19th-century duel, there are only two competitors. 

The 23-page Notice of Race which governs the competition provides that the next attempt to run the boats will occur on Friday, if it's not too windy or wavy, so long as there is enough wind and the water's not too cold and it's not raining and not a full moon and none of the principals of the race is needed for a conference call.

The two 90-foot multi-hulled yachts in the race are marvels of engineering, as described here in the New York Times.  The question is whether or not the legal wrangling over the meaning of the relevant documents that set out the rules for the race -- the Notice of Race and the Deed of Gift -- leaves room for anything that resembles a sporting event, in this case a boat race.  If you are looking forward to seeing heavily muscled men turning cranks and leaning over the edges of the boats to provide counterbalance, advances in technology have now rendered such feats of strength and athleticism quaint.  In addition, these boats are built for speed and do not apparently maneuver like sailboats.  There will be little or no jockeying for position.  Rather, according to media reports, each boat will find its line and its wind and will attempt to travel from point A to point B and then back to A as quickly as possible with very little tacking.

As the New York Times reported, Ernesto Bertarelli, the owner of Alinghi, the current champion and holder of the Americas Cup trophy, has accused the challenger, owned by Larry Ellison of BMW/Oracle, of attempting to win the coveted trophy in court.  Last month, the New York Supreme Court told the parties to go race, but it may be too late to prevent the outcome from being determined by the parties' differing interpretations of the governing documents.  Although those documents look like regulations created by a neutral sports governing body, given that this race is really about Bertarelli and Ellison going mano a mano, those documents have a contractual feel to them and the entire competition seems to be as much about creative interperetation of contractual language as anything else.

[Jeremy Telman]

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