Deed of Gift

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Deed of Gift[1]
by George Lee Schuyler
THE “AMENDED” DEED of GIFT of the AMERICA'S CUP

Incorporating the Waterline Length and “Own Bottom” Amendment, December 17, 1956 and the Southern Hemisphere Amendment, April 8, 1985.

This DEED OF GIFT made the twenty-fourth day of October, one thousand eight hundred and eighty-seven, Between GEORGE L. SCHUYLER as sole surviving owner of the Cup won by the yacht America at Cowes, England, on the twenty-second day of August, one thousand eight hundred and fifty-one, of the first part, and THE NEW YORK YACHT CLUB, of the second part, as amended by orders of the Supreme Court of the State of New York dated December 17, 1956, and April 5, 1985, WITNESSETH:

THAT the said party of the first part, for and in consideration of the premises and of the performance of the conditions and agreements hereinafter set forth by the party of the second part, has granted, bargained, sold, assigned, transferred and set over, and by these presents does grant, bargain, sell, assign, transfer and set over unto the said party of the second part, its successors and assigns, the Cup won by the schooner yacht America at Cowes, England, upon the twenty-second day of August, 1851. To Have and To Hold the same to the said party of the second part, its successors and assigns, IN TRUST NEVERTHELESS, for the following uses and purposes: -

This Cup is donated upon the condition that it shall be preserved as a perpetual challenge Cup for friendly competition between foreign countries.

Any organized yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty or other executive department, 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 with a yacht or vessel propelled by sails only and constructed in the country to which the challenging Club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup. The competing yachts or vessels, if of one mast, shall be not less than sixty-five forty-four feet nor more than ninety feet on the load water line; if of more than one mast, they shall be not less than eighty feet nor more than one hundred and fifteen feet on the load water line.

The challenging Club shall give ten months’ notice in writing naming the days for the proposed races; but no race shall be sailed in the days intervening between November first and May first if the races are to be conducted in the Northern Hemisphere; and no race shall be sailed in the days intervening between May first and November first if the races are to be conducted in the Southern Hemisphere. Accompanying the ten months’ notice of challenge, there must be sent the name of the owner and a certificate of the name, rig and the following dimensions of the challenging vessel, namely, length on load water line; beam at load water line, and extreme beam; and draught of water; which dimensions shall not be exceeded; and a custom-house registry of the vessel must also be sent as soon as possible. Vessels selected to compete for this Cup must proceed under sail on their own bottoms to the port where the contest is to take place. Centreboard or sliding keel vessels shall always be allowed to compete in any race for this Cup, and no restriction nor limitation whatever shall be placed upon the use of such centreboard or sliding keel, nor shall the centre-board or sliding keel be considered a part of the vessel for any purposes of measurement.

The Club challenging for the Cup and the Club holding the same may by mutual consent make any arrangement satisfactory to both as to the dates, courses, number of trials, rules and sailing regulations, and any and all other conditions of the match, in which case also the ten months’ notice may be waived.

In case the parties cannot mutually agree upon the terms of a match, then three races shall be sailed, and the winner of two of such races shall be entitled to the Cup. All such races shall be on ocean courses, free from headlands, as follows: the first race, twenty nautical miles to windward and return; the second race, an equilateral triangular race of thirty-nine nautical miles, the first side of which shall be a beat to windward; the third race, (if necessary), twenty nautical miles to windward and return; and one week day shall intervene between the conclusion of one race and the starting of the next race. These ocean courses shall be practicable in all parts for vessels of twenty-two feet draught of water and shall be selected by the Club holding the Cup; and these races shall be sailed subject to its rules and sailing regulations so far as the same do not conflict with the provisions of this deed of gift, but without any time allowances whatever. The challenged Club shall not be required to name its representative vessel until at the time agreed upon for the start, but the vessel when named must compete in all the races; and each of such races must be completed within seven hours.

Should the Club holding the Cup be for any cause dissolved, the Cup shall be transferred to some Club of the same nationality, eligible to challenge under this deed of gift, in trust and subject to its provisions. In the event of the failure of such transfer within three months after such dissolution, said Cup shall revert to the preceding Club holding the same, and under the terms of this deed of gift. It is distinctly understood that the Cup is to be the property of the Club, subject to the provisions of this deed, and not the property of the owner or owners of any vessel winning a match.

No vessel which has been defeated in a match for this Cup can be again selected by any club as its representative until after a contest for it by some other vessel has intervened, or until after the expiration of two years from the time of such defeat. And when a challenge from a Club fulfilling all the conditions required by this instrument has been received, no other challenge can be considered until the pending event has been decided.

AND the said party of the second part hereby accepts the said Cup subject to the said trust, terms and conditions, and hereby covenants and agrees to and with said party of the first part that it will faithfully and fully see that the foregoing conditions are fully observed and complied with by any contestant for the said Cup during the holding thereof by it; and that it will assign transfer and deliver the said Cup to the foreign yacht Club whose representative yacht shall have won the same in accordance with the foregoing terms and conditions, provided the said foreign Club shall by instrument in writing lawfully executed enter with said party of the second part into the like covenants as are herein entered into by it, such instrument to contain a like provision for the successive assignees to enter into the same covenants with their respective assignors, and to be executed in duplicate, one to be retained by each Club, and a copy thereof to be forwarded to the said party of the second part.

IN WITNESS WHEREOF, the said party of the first part has hereunto set his hand and seal, and the said party of the second part has caused its corporate seal to be affixed to these presents and the same to be signed by its Commodore and attested by its Secretary, the day and year first above written.

In the presence of H. D. Hamilton.
George L. Schuyler
The New York Yacht Club
by Elbridge T. Gerry, Commodore.
John H. Bird, Secretary
{Seal of the NYYC}

Contents

Amendments to the Deed of Gift[edit]

The Waterline Length and "Own bottom" Amendment[edit]

ORDER WITH RESPECT TO ADMINISTRATION OF GIFT DATED DECEMBER 17, 1956

NEW YORK YACHT CLUB, having filed a verified petition dated September 21, 1956, praying that an order be made pursuant to Section 12 of the Personal Property Law or otherwise, directing that the gift by George L. Schuyler of the America’s Cup which was won by the yacht AMERICA at Cowes, England on August 22, 1851, in trust under a Deed of Gift dated October 24, 1887, shall be administered as if the minimum load water-line length of the competing yachts or vessels of one mast and thereby required to be forty-four (44) feet and without regard to and free from the direction contained therein that yachts or vessels competing for the America’s Cup shall sail on their own bottoms to the port where the contest is to take place, and that such other and further relief as to the Court may seem just and proper be granted to petitioner; and it appearing to the satisfaction of the Court from said petition and the papers annexed thereto that circumstances have so changed since the execution of said Deed of Gift, in a manner not known to the said donor and not anticipated by him, as to render impractical a literal compliance with the aforesaid terms of said Deed of Gift; and it further appearing that the grantor of said Deed of Gift has died and that the Attorney General of the Sate of New York is the only person interested in this proceeding; and said Attorney General having appeared and certified that he has no objections to the entry of an order as prayed for by petitioner,

NOW, upon motion of Carter, Ledyard and Milburn, attorneys for petitioner, it is

ORDERED that New York Yacht Club, as trustee of the America’s Cup given under the Deed of Gift dated October 24, 1887 made by George L. Schuyler, hereby is directed to administer the said Gift as if said Deed of Gift included no provision requiring yachts or vessels competing for the America’s Cup to sail, on their own bottoms, to the port where the contest is to take place, and as if the minimum load water-line length of the competing yachts or vessels of one mast was thereby required to be forty-four (44) feet.

Enter, Hon. Edgar J. Nathan, Jr. J.S.C. Justice

The Southern Hemisphere Amendment[edit]

ORDER OF THE SUPREME COURT OF THE STATE OF NEW YORK DATED APRIL 5, 1985

An application having been made by petitioner The Royal Perth Yacht Club of Western Australia Incorporation for an order amending a certain provision of a Deed of Gift of the America’s Cup dated October 24, 1887 between George l. Schuyler and The New York Yacht Club, as amended by the Court dated December 17, 1956 (Index No. 12696/56);

NOW, upon reading and filing the order to show cause dated February 27, 1985 (Stanley Parness, J.) with proof of due and timely service on the Attorney General of the State of New York and The New York Yacht Club, the petition of The Royal Perth Yacht Club of Western Australia Incorporated, verified the 27th day of November, 1984, and annexed exhibits, and the affidavit of Charles E. Kirsch, sworn to the 26th day of February, 1985, and annexed exhibits, all in support of the petition, and the notice of appearance and consent of the Attorney General of the State of New York, acknowledged the 7th day of March, 1985, consenting to the petition; and there being no opposition;

AND, a memorandum order dated March 11, 1985 having been rendered granting the petition on default;

NOW, upon the motion of DeForest & Duer, attorneys of petition The Royal Perth Yacht Club of Western Australia Incorporated, it is

ORDERED, that the petition of The Royal Perth Yacht Club of Western Australia Incorporated is granted; and it is further

ORDERED, that the Deed of Gift is amended, and the trust established pursuant to the Deed of Gift shall hereafter be administered, as if, following the phrase "No race shall be sailed in the days intervening between November 1st and May 1st", there were added the following language: "if the races are to be conducted in the Northern Hemisphere; and no race shall be sailed in the days intervening between May 1st and November 1st in the Southern Hemisphere."

Enter, Hon. Elliot Wilk J.S.C. Justice

Interpretive decisions regarding the Deed of Gift[edit]

The Arm of the Sea Interpretation[edit]

JUDGMENT OF THE SUPREME COURT OF THE STATE OF NEW YORK DATED SEPTEMBER 20, 1984

An application having been made by the petitioner The Royal Perth Yacht Club of Western Australia Incorporated for an order interpreting certain provisions of a Deed of Gift of the America’s Cup dated October 24, 1887 between George L. Schuyler and The New York Yacht Club, as amended by order of the Court dated December 17, 1956 (index No. 12696/56);

NOW, upon reading and filing the order to show cause dated August 8, 1984 (Alfred M. Ascione, Jr., J.) with proof of due and timely service of the Attorney General of the State of New York, the petition of the Royal Perth Yacht Club of Western Australia incorporated, verified the 30th day of July 1984, and annexed exhibits, and the affidavit of Eugene M. Kinney, sworn to the 20th day of July, 1984 and exhibits thereof, all in support of the petition, and the notice of appearance and consent of Attorney General of the State of New York, acknowledged the 13th day of August, 1984, consenting to the petition;

AND, a memorandum decision and order dated September 4, 1984, having been rendered granting the petition;

NOW, upon the motion of DeForest & Duer, attorneys for the petitioner The Royal Perth Yacht Club of Western Australia Incorporated, it is

ORDERED and ADJUDGED, that the petition of The Royal Perth Yacht Club of Western Australia Incorporated is granted with the consent of the Attorney General of the State of New York, representative of the public interest in the Deed of Gift, to the extent of declaring that the Deed of Gift entitles the Chicago Yacht Club, a yacht club of a foreign (i.e. competing) country as contemplated in the Deed of Gift, to enroll and compete as a contestant for the "America’s Cup."

Interpretive Resolutions to the Deed of Gift adopted by the Trustees[edit]

Reprinted in full including Amendments

Resolution adopted by the Board of Trustees on March 27, 1958[edit]

(The "1958 Resolution")

WHEREAS, a question has been raised on behalf of certain individuals, citizens of a foreign country, interested in a possible challenge for the America’s Cup, as to whether a challenge would be accepted by the New York Yacht Club if the challenger were designed in the United States but the hull built in the country of the challenging Club; and

WHEREAS, by the original Deed of Gift of the America’s Cup dated July 8, 1857, it was expressly provided that the Cup should be "perpetually a Challenge Cup for friendly competition between foreign countries"; and

WHEREAS, by the second Deed of Gift dated January 4, 1882, it was provided that the yacht challenging for the Cup and the yacht defending must be "constructed" in the country to which the challenging and defending Clubs respectively belong; and the above recited provision that the Cup should be "perpetually a Challenge Cup for friendly competition between foreign counties" as again set forth; and

WHEREAS, by the third and present Deed of Gift dated October 24, 1887, it was again provided that the Cup should be a "perpetual Challenge Cup for friendly competition between foreign counties," and the second paragraph thereof contained the provision above referred to that the challenging and defending yachts shall be constructed in the countries they respectively represent;

NOW, THEREFORE, in view of the expressed intent of the donors of the America’s Cup that is should be "perpetually a Challenge Cup for friendly competition between foreign countries," and the fact that in accordance with that intent and commencing with the first race for the Cup in 1870 down to the present time every challenger has been both designed and constructed in the country of the defending Club so that every challenger and every defender has been in all respects truly representative of the countries of the challenging and defending club and the Cup has become by tradition the symbol of the yachting supremacy of the country of the Club winning the challenge match:

RESOLVED that the word "constructed" wherever it appeared in the Deed of Gift of the America’s Cup shall always be construed as "designed and built".

W. Mahlon Dickerson, Secretary

Resolution adopted by the Board of Trustees on December 7, 1962[edit]

[Rescinded July 15, 1980]

WHEREAS, certain citizens or subjects of foreign countries, members of yacht clubs which qualify under the Deed of Gift of the America’s Cup, and which yacht clubs are considering challenging for the America’s Cup, have raised the question as to whether the obtaining of components (other than raw materials), fittings and sails, or the use of design facilities such as a towing tank; outside of the Board’s Resolution of March 27, 1958, construing the word "constructed" in the Deed of Gift as "designed and built"; and

WHEREAS, by Resolution dated March 27, 1958, the Board construed the word "constructed" wherever it appears in the Deed of Gift of the America’s Cup as meaning "designed and built"; it is

RESOLVED, that the word "designed" includes the use of a design facility such as a towing tank, and that the work "built" included components, fittings and sails; and

WHEREAS, the Board recognizes that components, fittings and sails and the availability of design facilities such as towing tanks may not be obtainable in the country of the challenging club; it is

RESOLVED, that recognizing that such design facilities may not be available and components, fittings and sails may not be obtainable in the country of the challenging club, will consider a request for permission to obtain certain of the aforesaid components, fitting and sails and to use the aforesaid design facilities in any country other than that of the defending club;

RESOLVED, that whenever, the Deed of Gift of the America’s Cup is printed this Resolution with preamble adopted by the Board of Trustees on march 27, 1958, interpreting the word "constructed" to mean "designed and built," be printed with the Deed of Gift.

W. Mahlon Dickerson Secretary

Resolution adopted by the Board of Trustees on July 15, 1980[edit]

(The "1980 Resolutions")

AND AMENDED ON MARCH 9, 1982

(The "1982 Amendments")

WHEREAS by Resolution adopted March 27, 1958 (the "1958 Resolution") this Board interpreted the word "constructed" as used in the Deed of Gift of the America’s Cup (the Deed of Gift") to mean "designed and built"; and

WHEREAS by Resolutions adopted December 7, 1962 (the "1962 Resolution") this Board set forth its interpretation of the words "designed and built" as used in the 1958 Resolution and set forth certain procedures relation to the application of such interpretation; and

WHEREAS because of the great increase in recent years in the exchange among the world’s yachtsmen, yacht designers, yacht builders and sailmakers of technology, techniques, material and facilities for the design and construction of yachts, their rigs and their sails, the interpretations set forth in the 1962 Resolutions are no longer workable or meaningful;

WHEREAS the purposes of the Deed of Gift, particularly the provision thereof that the America’s Cup "shall be preserved as a perpetual Challenge Cup for friendly competition between foreign countries", will be furthered by a requirement that the members of a candidate’s crew shall be nationals of the country in which the club represented by the candidate is located; it is

RESOLVED that he 1962 Resolutions be, and the same herby are rescinded; and

RESOLVED that the 1958 Resolution be, and the same hereby is, ratified and confirmed; and

RESOLVED that for the purposes of the 1958 Resolution:

A yacht shall be deemed to be "designed" in a country if the designers of the yacht’s hull, rig and sails shall be nationals of that country; and A yacht shall be deemed to be "built" in a country in a country if the hull of the yacht, including all framing and all planking, plating or other form of surfacing of the hull, shall be fabricated and assembled, and if the yacht’s sails shall be manufactured, in that country; provided that the foregoing provisions of this clause (b) shall not prevent the modification of the hull of any challenger, or candidate, in the country in which an America’s Cup Match is to take place so long as the modification or manufacture (i) is effected when the challenger or candidate is in such country and (ii) meets the requirements of clause (a) above; and RESOLVED, that notwithstanding the provisions of the foregoing resolution, any yacht which was eligible as a candidate for the America’s Cup Match in 1980 shall continue to be eligible thereafter provided that any material modification of the hull, rig or sails thereof shall be designed in accordance with the requirements of clause (a) of the foregoing resolution and any material modification of the hull thereof shall be completed in accordance with the requirements of clause (b) of the foregoing resolution; and

[Rescinded July 1, 1980]

RESOLVED that, for a candidate to be eligible for an America’s Cup Match in any year subsequent to 1980, every member of the candidate’s crew must be a national of the country in which the club represented by the candidate is located; and

RESOLVED that henceforth any reference to the Deed of Gift shall be deemed to include reference to the 1985[sic] Resolution and to these Resolutions, which shall hereafter be known as the "1980 Resolutions" and that whenever hereafter the Deed of Gift is printed or otherwise reproduced, the 1958 Resolution and the 1980 Resolutions shall be printed or reproduced as an integral part thereof.

Footnotes in Amplification[edit]

(March 9, 1982)

1.The requirements that a person be a national will be satisfied if the person is domiciled in, or has a principal place of residence in, or has a valid passport of that country since January 1, 1982. [Rescinded May 1984 and replaced with revised words]

2.Designers of sails may cooperate on an international basis until March 1, 1982; after which date, sail designers of different countries may not collaborate. Sail designs done before that date may be copied exactly, while after that date the designers in a company may use the computer system and data bank of pre March 1982 date freely but must not put back into the system post March 1, 1982 information and must execute nationally independent sail designs [Rescinded May 15, 1984]

(2) (3) A foreign designer—however he is designated—participating in the design of a boat or a sail would violate both the letter and spirit of the above Resolution, and any boat or sail so designed would be ineligible for use in America’s Cup competition. Similarly, a hull or sails which are merely copies of those of a foreign designer would also be ineligible for use in America’s Cup competition.

[Renumbered (2) May 15, 1984]

Regardless of whether a challenge has been accepted by the Defending Club in the belief that a boat complies with the Deed of Gift and subsequent Interpretive Resolutions, such acceptance does not immunize the boat form being challenged as to eligibility by another Challenging Club.

Vincent Monte-Sano, II Secretary

Resolutions adopted by the America's Cup Committee of the Royal Perth Yacht Club on May 15, 1984 - (The "First 1984 Resolutions")[edit]

WHERAS by resolution adopted July 15, 1980 and duly amended on March 9, 1982, to which Footnotes were included in amplification of such amendments (The "1982 Amendments") the then Board of Trustees noted that "The requirement that a person be a national will be satisfied if the person is domiciled in, or as a principal place of residence in, or had a valid passport of that country since January 1, 1982"; and

WHEREAS such note, by its slated date, has been interpreted to apply to the 1983 Challenge Match only; and

WHEREAS the 1987 and future Challenges for the America’s Cup would be better served by a definition which would be applicable to all challenges beyond the 1983 Challenge Match; and

WHEREAS it is considered that two years provides a reasonable residential or documentary period for definition of a national; it is

RESOLVED that Footnote (1) of the 1982 Amendments be, and the same hereby is rescinded; and

RESOLVED that Footnote (1) of the 1982 Amendments be, and the same hereby replaced with the words "The requirement that a person be a national will be satisfied if the person has been domiciled in, or has had a principal place of residence in, or has had a valid passport of that country for no shorter period than the two years before the date of the first race of the applicable America’s Cup Match" [Amended July 1, 1990]; and

RESOLVED that henceforth any reference to the Deed of Gift shall be deemed to include reference to these Resolutions, which shall hereafter be known as the "First 1984 Resolutions," and that whenever hereafter the Deed of Gift is printed or otherwise reproduced, as reproduced, the Second 1984 Resolutions shall be printed or reproduced as an integral part thereof.

D. Noel Robins Executive Director

Resolutions adopted by the America's Cup Committee of the Royal Perth Yacht Club on May 15, 1984 - (The "Second 1984 Resolutions")[edit]

WHEREAS by Resolution adopted July 15, 1980 and duly amended on March 9, 1982, to which Footnotes were included in amplification of such amendments (the "1982 Amendments") the then Board of Trustees noted that "Designers of sails my cooperate on an international basis until March 1, 1982; after which date, sail designers of different countries may not collaborate. Sail designs done before that date may be copied exactly, while after that date the designers in a company may use the computer system and data bank of pre-March 1982 data freely but must not put back into the system post-March 1, 1982 information and must execute nationally independent sail design"; and

WHEREAS because of the great increase in recent years in the exchange among the worlds’ sailmakers of technology, techniques, material and facilities for the design and construction of sails, due primarily to the greater accessibility of computerized systems and data banks; and

WHEREAS restrictions on the freedom of this accessibility are no longer enforceable in a practical sense; and

WHEREAS the purposes of the Deed of Gift cannot be furthered by the retention of the Footnote (2) of the 1982 Amendments; it is

RESOLVED that Footnote (2) of the 1982 Amendments be, and the same hereby is, rescinded; and

RESOLVED that Footnote (3) of the 1982 Amendments be, and the same hereby is renumbered "(2)"; and

RESOLVED that henceforth any reference to the Deed of Gift shall be deemed to include reference to these Resolutions, which shall hereafter be known as the "Second 1984 Resolutions", and what whenever hereafter the Deed of Gift if printer or otherwise reproduced, the Second 1984 Resolutions shall be printed or reproduced as an integral part thereof.

D. Noel Robins Executive Director

Resolutions adopted by the America's Cup Committee of the Royal Perth Yacht Club on May 22, 1984 - (The "Third 1984 Resolutions")[edit]

WHEREAS, by Resolution adopted March 27, 1958, the then Board of Trustees interpreted the word "constructed" wherever it appears in the Deed of Gift of the America’s Cup shall always be construed as "designed and built"; and

WHEREAS, by Resolutions adopted July 15, 1980, and amended March 9, 1982, the then Board of Trustees set forth its interpretation of the words bot "designed" and "built" as they appeared in the 1958 Resolution; and

WHEREAS, such interpretations of "designed" and "built" make no reference to testing and thereby leave doubt as to whether testing should be considered as part of the design process; and

WHEREAS, the purpose of the Deed of Gift, particularly the provision thereof that the America’s Cup "shall be preserved as a perpetual Challenge Cup for friendly competition between foreign counties," will be furthered by a requirement that design testing should, where practicable, be carried out in the country of the club defending or challenging; and

WHEREAS, certain yacht clubs which qualify under the Deed of Gift of the America’s Cup, and which yacht clubs are desirous of challenging for the America’s Cup, have raised the question as to whether their use of testing facilities closely aligned to the design process such as towing tanks would be accepted by the defending club if such testing facilities were located outside the country of the challenging club; it is

RESOLVED, that the defending club at the instance of a challenging club, shall consider a request for permission to use towing tank facilities in any country other than that of the defending club, and may grant such permission should the defending club have evidence that adequate facilities do not exist in the country of the club requesting permission; and

RESOLVED, that towing tank facilities in any country other than that of the defending club may be used for the defending club when similar evidence exists that adequate facilities do not exist in the country of the defending club; and

RESOLVED, that henceforth any reference to the Deed of Gift shall be deemed to include reference to these Resolutions, which shall hereafter be known as the "Third 1984 Resolutions", and that whenever hereafter the Deed of Gift if printed or otherwise reproduced, the Second 1984 Resolutions shall be printed or reproduced as an integral part thereof.

D. Noel Robins Executive Director

Resolutions adopted by the Board of Directors of the San Diego Yacht Club on August 19, 1988 - (The "First 1988 Resolutions")[edit]

[Rescinded October 30, 1991, as fully addressed in the subsequently issued San Diego Protocol]

WHEREAS, the expressed intent of the donors of the America’s Cup was that it should be a "perpetual Challenge Cup for friendly competition between foreign countries"; and

WHEREAS, in accordance with that intent, the America’s Cup has evolved over the years into a multinational competition in which challenges are received from yacht clubs in a number of countries; and

WHEREAS, the Deed of Gift of the America’s Cup provided that "when a challenge for a Club fulfilling all the conditions required by this instrument has been received, no other challenge can be considered until the pending event has been decided"; and

WHEREAS, this provision could result in an unseemly and unsportsmanlike scramble among challenging yacht clubs, each seeking to be the first to deliver a notice of challenge following the conclusion of a match, and in the very real possibility of litigation between challengers to determine which was first; and

WHEREAS, in recent years, the challengers for the America’s Cup have followed the practice of competing with each other in a Challenger Round of elimination races for the right to sail a match for the Cup; and

WHEREAS, the organization and conduct of the Challenger Round, and the negotiation of the conditions of the match with the Defending Club, have been greatly facilitated by the designation of a representative challenger of Challenger of Record; and

WHERAS, the San Diego Yacht Club, as holder of the America’s Cup and trustee under the Deed of Gift, is empowered to adopt resolutions interpreting the Deed so as to effectuate its purpose and the intent of the donors;

NOW, THEREFORE, BE IT RESOLVED, that the trustee under the Deed of Gift shall designate a reasonable period of time following the conclusion or abandonment of a match, during which challenges shall be received for the Cup; and

FURTHER RESOLVED, that all valid challenges received during such Challenge Period shall be deemed to have been received simultaneously, and shall be accepted; and

FURTHER RESOLVED, that the Challenger of Record shall be empowered to act for the challengers whose challenges are so accepted as their representative in all matters pertaining to the match; and

FURTHER RESOLVED, that the Challenger of Record shall organize and conduct a Challenger Round of elimination races preceding the match, in which all of the challengers whose challenges are so accepted shall be entitled to participate, and that the winner of the Challenger Round, if not the Challenger of Record, shall be substituted for the Challenger of Record, and shall be entitled to sail the match for the America’s Cup; and

FURTHER RESOLVED, that the Defending Club and the Challenger of Record shall use their best efforts to reach agreement under the mutual consent provision of the Deed of Gift as to a design rul for the competing yachts of vessels, the number of races in the match, the configurations of the ocean courses for the match, the days of the races, and all other matters pertaining to the match; provided, that in the absence of such agreement, the yachts or vessels competing in the Challenger Round must conform to the rig and dimensions specified by the Challenger of Record in its notice of challenge, and the match will be a best of three series sailed on the ocean courses prescribed by the Deed of Gift on the days named by the Challenger of Record in its notice of challenge, all in strict accordance with the Deed of Gift; and

FURTHER RESOLVED, that if a challenger whose challenge is so accepted, by written notice delivered to the trustee prior to the end of the Challenge Period; asserts that its challenger was the first valid challenge received during the Challenge Period, and such assertion is determined to be correct, and further asserts that such challenger refuses to consent to the foregoing interpretive resolutions, then it the absence of agreement between the Defending Club and such challenger under the mutual consent provision of the Deed of Gift, the match will be sailed between such challenger and the Defending Club in strict accordance with the Deed of Gift.

[Issued by C. Douglas Alford, Commodore. No signatures on original]

Resolutions adopted by the Board of Directors of the San Diego Yacht Club on August 19, 1988 - (The "Second 1988 Resolutions")[edit]

[Rescinded October 30, 1991, as fully addressed in the subsequently issued San Diego Protocol.]

WHERAS, the Deed of Gift of the America’s Cup provides that "when a challenge from a club fulfilling all the conditions required by this instrument has been received, no other challenge can be considered until the pending event has be decided"; and

WHEREAS, the manner and timing of receipt of challenges by the Defending Club should be clarified, so as to avoid confusion and possible litigation between challengers to determine which was first to deliver a notice of challenge for the America’s Cup.

WHERAS, the San Diego Yacht Club, as holder of the America’s Cup and trustee under the Deed of Gift, is empowered to adopt resolutions interpreting the Deed so as to effectuate its purpose and the intent of the donors;

NOW, THEREFOR, BE IT RESOLVED, a challenge shall not be considered unless it is received by the Defending Club after the winning yacht or vessel crosses the finish line in the final race of the match, or if there is a protest, after the protest is determined by the committee or jury appointed to hear and determine protests, or if the pending challenge is withdrawn or abandoned, after the fact of such withdrawal or abandonment is first publicly announced by the Defending Club; and

FURTHER RESOLVED, that a challenge is received by the Defending Club only if an executed original notice of challenge is personally delivered to the Commodore of the club or mailed to the Commodore and received by the Club; and

FURTHER RESOLVED, that a challenge is received by the Defending Club when it is actually personally delivered to the Commodore of the Club, or if mailed, at 5:00 p.m. local time on the day it is actually received by the Club.

[Issued by C. Douglas Alford, Commodore. No signatures on original.]

Resolution adopted by the Board of Directors of the San Diego Yacht Club on July 1, 1990 - (The "First 1990 Resolution")[edit]

WHEREAS by Resolution adopted March 27, 1958 (the "1958 Resolution") The then Board of Trustees interpreted the word "constructed" as used in the Deed of Gift of the America’s Cup (the "Deed of Gift") to mean "designed or built"; and

WHEREAS by Resolutions adopted July 15, 1980, and amended March 9, 1982, the then Board of Trustees set forth its interpretation of the words both "designed" and "built" as they appeared in the 1958 Resolution; and

WHEREAS the fourth Resolution adopted by the then Board of Trustees on July 15, 1980 (hereafter "the Fourth 1980 Resolution") provided:

"Notwithstanding the provisions of the foregoing resolution, any yacht which was eligible as a candidate for the America’s Cup Match in 1980 shall continue to be eligible thereafter provided that any material modification of the hull, rig or sails thereof shall be designed in accordance with the requirements of clause (a) of the foregoing resolution and any material modification of the hull thereof shall be completed in accordance with the requirements of clause (b) of the foregoing resolution"; and

WHEREAS the Fourth 1980 Resolution was intended by the then Board of Trustees to apply only to the class of yacht then used in competition in the America’s Cup Match, namely, yachts of the International Twelve Metre Class; and

WHEREAS the Deed of Gift provides that the club challenging for the Cup and the club holding the same may make any arrangement satisfactory to both as to rules; and

WHEREAS on September 8, 1988, The San Diego Yacht Club, as Trustee under the Deed of Gift, issued a statement (the "San Diego Protocol"0, with which the two previous Trustees under the Deed of Gift concurred, by the terms of which a method for agreement upon the class of vessel to be used in the Twenty-eighth Defense of the America’s Cup (the "1992 Match") was identified; and

WHEREAS all of the clubs challenging for the 1992 Match have agreed to be bound by the terms of the San Diego Protocol, and in accordance therewith have proposed, and the club holding the Cup has agreed to, competition in yachts of the new International America’s Cup Class for the 1992 Match; and

WHEREAS yachts of the International Twelve Metre Class would be unable to comply with the rules of International America’s Cup Class; and

WHEREAS if the challenging and defending clubs agree to the class of yacht to be used in a Match, the purposes of the Deed of Gift, particularly the provision thereof that the America’s Cup "shall be preserved as a perpetual Challenge Cup for friendly competition between foreign countries: , will be furthered by allowing competition only between yachts which comply with the rules of that class; it is

RESOLVED that the Fourth 1980 Resolution be, and the same hereby is rescinded;

RESOLVED that henceforth any reference to the Deed of Gift shall be deemed to include reference to this Resolution, which shall hereafter be known as the "First 1990 Resolution", and that whenever hereafter the Deed of Gift is printed or otherwise reproduced the First 1990 Resolution shall be printer or reproduced as an integral part thereof.

Resolutions adopted by the Board of Directors of the San Diego Yacht Club on July 1, 1990 - (The "Second 1990 Resolutions")[edit]

WHEREAS a questions has been raised on behalf of certain individuals, citizens of a foreign country, involved in a challenge for the America’s Cup, as to whether a person who satisfies the conditions of nationality for more than one country under the Resolutions interpreting the Deed of Gift my design a hull, rig, or sails, or participate as a crew member, for clubs located in different countries for the same America’s Cup, or any selection therefore; and

WHEREAS by the 1958 Resolution the then Board of Trustees interpreted the word "constructed" wherever it appeared in the Deed of Gift to mean "designed" and "built"; and

WHEREAS by the 1980 Resolutions and the 1982 Amendments, the then Board of Trustees set forth its interpretation of the words both "designed" and "built" as the appeared in the 1958 Resolution; and

WHEREAS the Footnotes in amplification of the 1980 Resolutions (the "1982 Amendments" adopted March 9, 1982) stated;

"A foreign designer—however he is designated—participating in the design of a boat or a sail would violate both the letter and the spirit of the above Resolution, and any boat or sail so designed would be ineligible for use in America’s Cup competition. Similarly, a hull or sails which are merely copies of those of a foreign designer would also be ineligible for use in America’s Cup competition."

WHEREAS by the 1980 Resolutions the then Board of Trustees also interpreted that for a candidate to be eligible for an America’s Cup Match in any year subsequent to 1980, every member of the candidate’s crew must be a national of the country in which the club represented by the candidate is located; and

WHEREAS by inclusion of Footnote (1) of the 1982 Amendments, the then Board of Trustees noted that "The requirement that a person be a national will be satisfied if the person is domiciled in, or has a principal place of residence in, or has a valid passport of that country since January 1, 1982"; and

WHEREAS Footnote (1), by its stated date, was thereafter interpreted to apply to the 1983 Challenge Match only; and

WHEREAS by the First 1984 Resolutions, adopted May 15, 1984, the then Trustee determined that the 1987 and future Challenges for the America’s Cup would be better served by a definition of a "national" which would be applicable to all challenges beyond the 1983 Challenge Match, and that two years provides a reasonable residential or documentary period for definition of a "national", and replaced Footnote (1) of the 1982 Amendments with the words:

"The requirement that a person be a national will be satisfied if the person has been domiciled in, or has had a principal place of residence in, or has had a valid passport of that country for no shorter period than the two years before the date of the first race of the applicable America’s Cup Match"; and

WHEREAS because of the great increase in the popularity of the America’s Cup competition in recent years it has become customary for the yachts of the challenging clubs and the yachts of the club holding the Cup to engage in separate series of races to select the two yachts which will compete in the America’s Cup Match; and

WHEREAS since the First 1984 Resolutions were adopted, challenging clubs have begun training and practice exercises in the country of the club holding the Cup sufficiently in advance of the relevant America’s Cup Match that crew members competing for challenging clubs may satisfy the conditions of nationality so as to compete on behalf of the defending club in the Match; and

WHEREAS because the great increase in the popularity of the America’s Cup competition among clubs in foreign countries in recent years, the great increase in the number of foreign cubs for the Cup, and the prosperity experienced by various countries throughout the world, designers and crew members who are nationals of one country have begun changing their places of residence to other countries far enough in advance to satisfy the conditions of nationality to design or compete for clubs located in more than one country; and

WHEREAS the original Deed of Gift dated July 8, 1857 and the second Deed of Gift dated January 4, 1882 each expressly provided, and the third and present Deed of Gift dated October 24, 1887, expressly provides, that the Cup should be "perpetually a Challenge Cup for friendly competition between foreign countries", and

WHEREAS by the 1958 Resolution the then Board of Trustees determined that in accordance with the expressed intent of the donors of the America’s Cup and commencing with the first race for the Cup in 1870 to the date of the 1958 resolution every challenger had been both designed and constructed in the country of the defending Club so that every challenger and every defender had been in all respects truly representative of the countries of the challenging and defending club and the Cup had become by tradition the symbol of yachting supremacy of the country of the Club winning the challenge match; and

WHEREAS the determination made by the 1958 Resolution is true to the present time, but unless declaration of nationality is required where a person satisfies the conditions of nationality for more than one country the expressed intent of the donors will be frustrated; and

WHEREAS a question has been raised as to the appropriate method for determining the issues of eligibility of designers and members of a candidate’s crew; and

WHEREAS the Deed of Gift expressly provides that the club challenging for the Cup and the club holding the same may, by mutual consent, make any arrangement satisfactory to both as to any and all conditions of the Match; and that in case the parties cannot mutually agree upon the teams of a Match, the races shall be sailed subject to the rules and sailing regulations of the club holding the Cup so far as the same do not conflict with the provisions of the Deed of Gift; and

WHEREAS the Deed of Gift makes no other provision for determining the eligibility of designers and members of a candidate’s crew; and

WHEREAS the context of the Resolutions may, on occasion, require reference to gender; it is

RESOLOVED that Footnote (1) in amplification of the 1980 Resolutions, as amended May 15, 1984, be, and it hereby is, further amended to add the following second sentence:

"However, no person may claim dual or multiple nationality. If a person satisfies the conditions of nationality for more than one country, he shall elect and declare a single nationality, and may participate only on behalf of the country whose nationality he declares",

RESOLVED that for the 1992 America’s Cup Match, a designer who must declare nationality shall do so to the defending club as soon as reasonably practicable after July 31, 1990. The declaration shall include a statement that since July 31, 1990, he has designed only for the country whose nationality he had declared.

RESOLVED that a member of a candidate’s crew who must declare a nationality shall do so to the defending club prior to the start of the challenger or defender selection series, as appropriate.

RESOLVED that a question as to a person’s eligibility shall be referred to the challenging club (or, if there is more than one challenging club, then to the duly elected or appointed Challenger of Record, or Committee elected by the challengers and approved by the defending club, as applicable) and the defending club for agreement. If they cannot agree, the question shall be referred to the appropriate authority under the rules and sailing regulations of the club holding the Cup.

RESOLVED that for purposed of the Resolutions interpreting the Deed of Gift, the masculine gender used includes the feminine;

RESOLVED that henceforth any reference to the Deed of Gift shall be deemed to include reference to these Resolutions, which shall hereafter be known as the "Second 1990 Resolutions", and that whenever hereafter the Deed of Gift is printed or otherwise reproduced, the Second 1990 Resolutions shall be printed or reproduced as an integral part thereof.

William R. Munster Secretary

The Interpretive Resolutions adopted by the Trustees[edit]

Consolidated as of October 1, 1990

Resolution adopted March 27, 1958

The word "constructed" wherever it appears in the Deed of Gift of the America’s Cup shall always be construed as "designed and built".

Resolutions adopted July 15, 1980[edit]

For the purposes of the 1958 Resolution:

A yachts shall be deemed to be "designed" in a country if the designers of the yacht’s hull, rig and sails shall be national of that country; and A yacht shall be deemed to be "built" in a country if the hull of the yacht, including all framing and all planking, plating or other form of surfacing of the hull, shall be fabricated and assembled, and if the yacht’s sails shall be manufactured, in that country; provided that the foregoing provisions of this clause (b) shall not prevent the modification of the hull of any challenger, or candidate to be challenger, for the Cup, or the manufacture of sails for such challenger or the candidate in the country in which an America’s Cup Match is to take place so long as the modification or manufacture (i) is effected when the challenger or candidate is in such country and (ii meets the requirements of clause (a) above. For a candidate to be eligible for an America’s Cup Match in any year subsequent to 1980, every member of the candidate’s crew must be a national of the country in which the club represented by the candidate is located.

Footnotes in Amplification of the July 15, 1980 Resolutions, including the Amendments of May 15, 1984 AND July 1, 1990[edit]

The requirement that a person be a national will be satisfied if the person has been domiciled in, or has had a principal place of residence in, or has had a valid passport of that country for no shorter period than the two years before the date of the first race of the applicable America’s Cup Match. However, no person may claim dual or multiple nationality. If a person satisfies the conditions of nationality for more than one country, he shall elect and declare a single nationality, and may participate only on behalf of the country whose nationality he declares. A foreign designer—however he is designated—participating in the design of a boat or a sail would violate both the letter and spirit of the above resolution, and any boat or sail so designed would be ineligible for use in America’s Cup competition. Similarly, a hull or sails which are merely copies of those of a foreign designer would also be Regardless of whether a challenge has been accepted by the Defending Club in the belief that a boat complies with the Deed of Gift and subsequent Interpretive Resolutions, such acceptance does not immunize the boat from being challenged as to eligibility by another Challenging Club.

Resolutions adopted May 22, 1984[edit]

The defending club at the instance of a challenging club, shall consider a request for permission to use towing tank facilities in any country other than that of the defending club, and may grant such permission should the defending club have evidence that adequate facilities do not exist in the country of the club requesting permission.

Towing tank facilities in any country other than that of the defending club may be used by the defending club when similar evidence exists that adequate facilities do not exist in the country of the defending club.

Resolutions adopted July 1, 1990[edit]

For the 1992 America’s Cup Match, a designer who must declare a nationality shall do so to the defending club as soon as reasonably practicable after July 31, 1990. The declaration shall include a statement that since July 31, 1990, he had designed only for the country whose nationality he has declared.

A member of a candidate’s crew who must declare a nationality shall do so to the defending club prior to the start of the challenger or defender selection series, as appropriate.

A questions as to a person’s eligibility shall be referred to the challenging club (or, if there is more than one challenging club, then to the duly elected or appointed Challenger of Record, or Committee elected by the challengers and approved by the defending club, as applicable: and the defending club for agreement. If they cannot agree, the question shall be referred to the appropriate authority under the rules and sailing regulations of the club holding the Cup.

For purposes of the Resolutions interpreting the Deed of Gift, the masculine gender used includes the feminine.

Resolution adopted by Unanimous Consent of the Board of Directors of the San Diego Yacht Club on April 9, 1993 - (The "First 1993 Resolution")[edit]

[Rescinded December 19, 1996]

WHEREAS by Resolution adopted March 27, 1958, the then Board of Trustees interpreted the word "constructed" wherever it appears in the Deed of Gift of the America’s Cup shall always be construed as "designed and built"; and

WHEREAS by Resolutions adopted July 15, 1980, and amended March 9, 1982, and May 15, 1984, the then Board of Trustees set fourth its interpretation of the words both "designed" and "built" as they appear in the 1958 Resolutions; and

WHEREAS the development and use of computer software programs for analysis, design and optimization is by now widely acknowledged to be essential to the design process; and

WHEREAS yachts designed with the assistance of these software programs can be superior to those designed with the unaided judgement of a skilled yacht designer; and

WHEREAS restrictions regarding the location of the software itself are unenforceable and irrelevant in an age of electronic data communication; it is

RESOLVED that for purposes of the 1980 Resolutions, the "designers of the yacht’s hull, rig and sails" shall be deemed to include those who are developing modifying or using;

computational fluid dynamics software which simulates the flow of air or water past the yacht, its sails or rig in order to characterize or compute forces in the presence of that flow; or velocity prediction software which based on the forces of a yacht, rig and sails caused by a given wind or waves, predicts the yacht’s behavior or performance; or finite element analysis software for structural engineering; or software which is capable of optimizing one or several characteristic of a yacht, rig or sails given certain objectives and constraints; and RESOLVED that henceforth any reference to the Deed of Gift shall be deemed to include reference to these Resolutions, which shall hereafter be known as the "First 1993 Resolutions", and that whenever hereafter the Deed of Gift is printed or otherwise reproduced, the First 1993 Resolutions shall be printed or reproduced as an integral part thereof.

ADOPTED BY UNANIMOUS CONSENT OF THE BOARD OF DIRECTORS OF SAN DIEGO YACHT CLUB ON APRIL 9, 1993.

G. Wytie Cable Commodore

Resolutions adopted by the Flag Officers and General Committee of the Royal New Zealand Yacht Squadron on December 19, 1996 - (The "1996 Resolution")[edit]

WHEREAS, by Resolution adopted March 27, 1958 (the "1958 Resolution") the then Board of Trustees determined that the word "constructed" wherever it appears in the Deed of Gift of the America’s Cup shall always be construed as "designed and built";

WHEREAS, by Resolutions adopted July 15, 1980, and amended March 9, 1982, May 15, 1984, and July 1, 1990, the then Board of Trustees set forth their interpretation of the words both "designed" and "built" as they appeared in the 1958 Resolution and in so doing made reference to "designers"; and

WHEREAS, by Resolutions adopted May 22, 1984 (the "Third 1984 Resolutions") the then Board of Trustees set forth conditions whereby participating clubs in the America’s Cup might use towing tank facilities and noted that where practicable design testing should be carried out in the country of the club defending or challenging; and

WHEREAS, the Third 1984 Resolutions govern only the use of towing tank facilities and do not address the use of other aids to design such as computer software and various other types of testing facilities; and

WHEREAS, by Resolution adopted April 9, 1993 (the "First 1993 Resolution") the then Trustee set forth its interpretation of those persons who were to be considered "designers"; and

WHEREAS, the First 1993 Resolution is unworkable; and

WHEREAS, the purposes of the Deed of Gift, particularly in provision thereof that the America’s Cup "shall be preserved as a perpetual Challenge Cup for friendly competition between foreign countries" and the purposes of the various Interpretive Resolutions particularly those governing nationality eligibility, will be furthered by a clarification of who shall be considered a "designer"; it is

RESOLVED that the First 1993 Resolution be, and the same hereby is rescinded; and

RESOLVED that a designer in relation to a yacht, its hull, rig, appendages and sails, is any person who applies or who has applied substantial intellectual creativity and/or judgement to the determination of the shape and/or structure of that yacht, its hull, rig appendages or sails. A person shall not be considered to apply or to have applied substantial intellectual creativity and/or judgement to the determination of the shape and/or structure of a yacht, its hull, rig, appendages, or sails if that person merely develops, modifies, operates, or provides instructions for the use of or the interpretation of any data or information created by, any machine, tool, instrument, device or apparatus including, but without limitation, computer software, towing tank facilities or sail testing facilities, which may be used to assist in that determination. With the exception of towing tank facilities the use of which is governed by the Third 1984 Resolutions, and wind tunnel facilities the use of which is governed by the Third 1984 Resolutions as amended by these resolutions, such computer software and/or facilities may be used without regard to nationality; and

RESOLVED that the Third 1984 Resolutions be amended by adding the words "and/or wind tunnel facilities" after the words "towing tank facilities" in each of the first and second resolutions but otherwise the same hereby are ratified and confirmed.

RESOLVED that the 1958 Resolution and the Resolutions adopted on July 15, 1980 as amended March 9, 1982, May 15, 1984 and July 1, 1990 be and the same hereby ratified and confirmed; and

RESOLVED that henceforth any reference to the Deed of Gift shall be deemed to included reference to these resolutions which shall hereafter be known as "The 1996 Resolutions" and that whenever hereafter the Deed of Gift is printed or otherwise reproduced the 1996 Resolutions shall be printed or otherwise reproduced as an integral part thereof.

William John Heise Commodore Royal New Zealand Yacht Squadron

The Protocol Governing The Thirty Second Americas Cup Amended January 21, 2004)[edit]

Article 9. INTERPRETIVE RESOLUTIONS

The Trustee Interpretive Resolutions require updating to take into account contemporary circumstances. The content of such Resolutions have been considered and, where appropriate, addressed by mutual consent in this Protocol. All Trustee Interpretive Resolutions including those in effect as at the end of the last race of the 31st America’s Cup match (2 March 2003) have no further effect for any purpose whatsoever.

Notes[edit]

  1. [The Deed of Gift and related manuscripts from the archives of the New York Yacht Club Revised Edition (2007) by Ryoichi Steven Tsuchiya]

See also[edit]

First Deed of Gift
Second Deed of Gift