Written by Hamish Ross*
The America’s Cup Deed of Gift was conceived shortly after Commodore Stevens and his brother Edwin arrived back in New York in 1851 with a trophy the America had won in the Royal Yacht Squadron’s “All Nations Race”. Commodore Stevens announced gifting the Cup at a dinner hosted by the New York Yacht Club held at Astor House, New York on Wednesday 1 October 1851, to celebrate their win.
It was not until seven months later, in May 1852, before a document in the form of a gifting letter, was drawn up by George Lee Schuyler, one of the other owners of the America. It was signed by three of the five owners of the Cup and sent to Commodore Stevens and his brother Edwin to sign, but the document and a covering letter went missing. After the death of Commodore Stevens in July 1857, an unsuccessful search was made for the lost document. Schuyler then took an unsigned copy of the document he had retained, and presented it to the New York Yacht Club, advising the Club this is what they intended and asked that it be accepted. It was, and on 9 July 1857 the America’s Cup competition was born, named for the yacht America, not the nation.
After the fourth challenge in 1881, the 1857 document was replaced with another document dated 2 January 1882, as additional terms were desired to avoid a threatened repeat challenge emanating from Scots-Canadian Alexander Cuthbert, whose poorly prepared yacht Atalanta, had just been defeated by Mischief with record margins, providing costly poor sport for the Defender. Those margins still stand as the largest margins in Cup racing. The new terms also required competing yachts to be constructed in the country of the competing yacht club; a challenger yacht club had to have an annual regatta on the arm or an arm of the sea (the latter being a legal term to mean the water was subject to the ebb and flow of tides); six months’ notice of a match was required (but not more than seven months’ notice); a defeated yacht could not challenge for another two years unless there had been an intervening challenge, and the defender had to name and race a single defending yacht, a concession early challengers had fought hard for. This new Deed would be short-lived and only survive the next three challenges.
The Thistle challenge of 1887, was highly controversial, partly because one of the world’s most successful yacht designers, Scotsman George Lennox Watson, was its designer and partly because Thistle was built in great secrecy, panicking the many in New York that the Cup would be lost. An unnecessary fuss was made over Thistle being slightly longer than originally advised during a pre-match measure, but George Schuyler, who was appointed the match umpire, simply adjusted Thistle’s time allowance (handicap) – she was still smaller than the defender Volunteer. The Defender’s need not have been so worried as an underprepared Thistle lost all her races and the Cup remained safe in New York. However, the Deed of Gift was revised once again, this time into a legal document broadly on the same terms, but with the challenger having to disclose more details of its challenging yacht, provide a longer notice period of 10 months, along with other refinements.
This third Deed, dated 24th October 1887 was highly controversial on both sides of the Atlantic when it was announced, primarily over a challenger having to provide detailed design information to the defender at the time of challenging, allowing the defender to out-build the challenger’s yacht. A “Deed of Retention” as it was called by Watson and questions over its legality were raised by several people but were never answered. It was not until the Earl of Dunraven managed to mediate a solution between the New York Yacht Club and The Royal Yacht Squadron between 1889 and 1892 that racing for the Cup resumed in 1893. This document has governed all racing for the America’ Cup since.
After the Second War World, and the following post-war austerity put a stop to racing, the Deed was amended in 1956 by the New York Supreme Court to allow racing in smaller and more economical 12-meter yachts. Importantly, it removed the requirements that the competing yachts had to sail to the match venue, opening up the competition to challengers from further afield. They would not be long in coming. The Australians first challenged in 1962 and maintained an assault on the Cup until they finally won in 1983.
After the Australians won the Cup in 1983, the Deed was once more amended by the New York Supreme Court in 1985 in an uncontested application, to allow racing in a southern Hemisphere summer.
The Deed has been subject to intensive interpretative ligation in the New York courts between 1987-1990 during the Mercury Bay Boating Club challenge from New Zealand, which resulted in the “mis-match” of a 90’ monohulled yacht against the San Diego Yacht Club’s wing powered catamaran; and again between 2007 and 2010, resulting in the Golden Gate Yacht Club’s trimaran against a Swiss catamaran.
The Deed remains potentially unclear in some areas, such as whether there are any limits on what competitors may mutually consent? Can they agree to race cars rather than yachts? If not, there are some limits which are yet to be defined. May a challenger dictate the timing and even the hemisphere of a match through careful selection of dates and notice timing? What do the requirements of having to construct a yacht in the country of a competitor club mean in practical terms – in an extreme case, must each nut and bolt be made in that country – does the metal have to be mined and smelted from rock from that country? These and other interpretative questions have kept teams of lawyers, rules advisors, and designers busy over the history of the Deed of Gift as competitors search for a winning edge.
*Hamish Ross has been a member of or an advisor to several America’s Cup winning teams. His PhD (Law) doctoral thesis was on the America’s Cup Deed of Gift.