A Deed of Retention

Published on

Written by Dr Hamish Ross

The 24th October marks the anniversary of the 1887 signing in New York of the document that continues to govern the America’s Cup competition.

The Deed of Gift replaced an earlier document of 2 January 1882 that in turn replaced the America’s Cup Donor’s original gifting document of 8 July 1857. After it was publicly announced in 1887, it became highly controversial and was immediately condemned and vilified on both sides of the Atlantic Ocean. It seemed as though the America’s Cup competition had come to an end. 

Its origins can be traced to the Thistle challenge from the Royal Clyde Yacht Club held just a few weeks earlier. A controversy had arisen over Thistle’s measurement at the official measurement of the competitor yachts. Thistle was measured longer on her waterline than the New York Yacht Club (NYYC) had been advised in the challenge documents sent beforeThistle was built. The discrepancy was 1 foot and 5 inches longer and she was now 86 feet and 5 inches on the waterline. By then, it was well known that the waterline length of a yacht had a direct bearing on a vessel’s theoretical maximum boat speed, the longer - the potentially faster. Interestingly, no one seemed to comment that the Defender’s yacht, the Volunteer,was designed to be 10 inches longer than the Thistle (but was now 7 inches shorter). Thistle’s theoretical advantage amounted to no more than a mere 0.05 of a knot. It seems the Defender’s real concern was the worrying propensity of Thistle’s short-lived Scottish designer, George Lennox Watson, to design spectacularly successful winning yachts, at least thus far in his career.

George Lee Schuyler, the last surviving Donor of the Cup, acting as Umpire resolved the issue by simply adjusting the time allowance of Thistle. He paid no heed to calls from the Volunteer camp for Thistle to be thrown out of the Match. After the Match, the NYYC wanted greater information on challenging yachts and needed to be rid of the maximum challenge notice period of seven months which had been misguidedly added to the 1882 Deed of Gift giving the defender much too short notice of a match. 

The NYYC appointed a Special Committee to oversee changes to the Deed of Gift with Schuyler. Schuyler was by then an old man and it was likely to be his last opportunity to rewrite the Deed. The Cup was returned to Schuyler a second time and on 24 October 1887, it was re-conveyed to the NYYC by a formal typewritten and sealed Deed of Gift, drafted by an unknown legal hand, in contrast to the earlier penned handwritten letters from Schuyler. No challenger or other yacht club was invited to comment or make suggestions.

Amongst a number of changes, the new Deed now required a challenging club to give ten months’ notice of a challenge coupled with greater measurement information of their intended yacht, which could not be exceeded.  

The new Deed was read to a meeting of the NYYC members and when a member rose to discuss the Deed, he was quickly informed the Deed was not for discussion as it had been settled and only a resolution of acceptance was required. The American outdoor magazine, Forest and Stream, described the proceedings as “a matter cooked in committee and given to the club to bolt with its eyes shut,”  and the Deed as a “Death Blow to International Yacht Racing”, questioning the NYYC’s legal right to amend the terms of the trust under which it held the Cup. 

While the Committee and Schuyler no doubt acted with the best of intentions, everyone else saw it very differently and believed the NYYC had acted out of naked self-interest to strengthen its hold on the Cup.  Both the British and the American Press severely criticised it, deploring its legal language which read more like a mortgage than a gentlemanly friendly sporting document.

The Field, published in London, reflected the opinion of British yachting establishment:

“To prevent any other club tinkering the conditions in a similar way, the club which may win the cup will have to covenant that the present unsportsmanlike conditions shall not be altered. Copies of the conditions have been sent to British and foreign yacht clubs, with a letter to the secretary very similar to the one issued thirty years ago. The letter, after recommending enthusiasm in the part of the contestants, winds up with the declaration that any races for the cup will be conducted on strictly fair terms by the New York Yacht Club; but if the club is to be the sole charge of “fair terms,” we do not think they will inspire enthusiasm.”

Others also questioned its legality. A New York lawyer writing to Forest and Stream wrote:

“The only ways in which the New York or any other Yacht club could deal with the cup were to observe the conditions which forever attached to it, keep it perpetually open to challenge and handed over to the club whose yacht should win.

GL Watson wrote to his friend, American yachting journalist, WP Stephens:

“Surely, you Americans are good enough now, to fight us fair. Anyway, I know that we’re not good enough to fight you with one hand tied behind our back, giving you 10 months’ notice as to where we were going to hit you … the whole thing [the America’s Cup competition] is as dead as Queen Anne.”

A NYYC official in later correspondence with the next challenger, the Earl of Dunraven, admitted the Club’s actions in changing the Deed of Gift were, to use his words, “not strictly legal”

The Yacht Racing Association based in Britain then representing most of the major European yacht clubs delivered the decisive message and informed New York Yacht Club in February 1888 that, “The terms of the New Deed of Gift are such that foreign vessels are unable to challenge”.

The Club stung by the criticism, resolved in May 1888; “That the terms under which the races between the Genesta and Puritan, Galatea and Mayflower and Thistle and Volunteer were sailed are considered satisfactory to this Club, and a challenge under these terms would be accepted, …”

It would take the persistent efforts of the Earl of Dunraven over several years to broker an impasse between the NYYC and the Royal Yacht Squadron before the Deed would be grudgingly accepted by a challenger yacht club. Dunraven deserves better recognition for this work for without it, the Cup would have been lost to international sport more than a century ago. Dunraven was admitted to the America’s Cup Hall of Fame in 2016, primarily for this contribution.

Schuyler had died from a heart attack on board NYYC Commodore Gerry’s yacht Electra, on the night of 31 July 1890 during the New York Yacht Club’s annual cruise. The tenuous authority under which the Club and Schuyler had clothed their actions to amend the Deed was now lost forever. The Deed would be in its final form, unless the Club took the proper legal step and persuaded a court to first approve any desired change. 

This is what the NYYC did in 1956 to permit the smaller 12-Meter Class yachts to race for the Cup and to remove the requirement that competitors had to sail to the match venue. Again in 1985, the second trustee, the Royal Perth Yacht Club of Western Australia applied to the New York Supreme Court to amend the Deed to permit racing in a Southern Hemisphere summer when a match was to be conducted in Fremantle, Australia in 1987. Could these matters not have more simply (and much less expensively) been agreed under the Deed’s mutual consent clause? That is a fascinating question and a great subject for a later article.  

 

A Deed of Retention

Published on

Written by Dr Hamish Ross

The 24th October marks the anniversary of the 1887 signing in New York of the document that continues to govern the America’s Cup competition.

The Deed of Gift replaced an earlier document of 2 January 1882 that in turn replaced the America’s Cup Donor’s original gifting document of 8 July 1857. After it was publicly announced in 1887, it became highly controversial and was immediately condemned and vilified on both sides of the Atlantic Ocean. It seemed as though the America’s Cup competition had come to an end. 

Its origins can be traced to the Thistle challenge from the Royal Clyde Yacht Club held just a few weeks earlier. A controversy had arisen over Thistle’s measurement at the official measurement of the competitor yachts. Thistle was measured longer on her waterline than the New York Yacht Club (NYYC) had been advised in the challenge documents sent beforeThistle was built. The discrepancy was 1 foot and 5 inches longer and she was now 86 feet and 5 inches on the waterline. By then, it was well known that the waterline length of a yacht had a direct bearing on a vessel’s theoretical maximum boat speed, the longer - the potentially faster. Interestingly, no one seemed to comment that the Defender’s yacht, the Volunteer,was designed to be 10 inches longer than the Thistle (but was now 7 inches shorter). Thistle’s theoretical advantage amounted to no more than a mere 0.05 of a knot. It seems the Defender’s real concern was the worrying propensity of Thistle’s short-lived Scottish designer, George Lennox Watson, to design spectacularly successful winning yachts, at least thus far in his career.

George Lee Schuyler, the last surviving Donor of the Cup, acting as Umpire resolved the issue by simply adjusting the time allowance of Thistle. He paid no heed to calls from the Volunteer camp for Thistle to be thrown out of the Match. After the Match, the NYYC wanted greater information on challenging yachts and needed to be rid of the maximum challenge notice period of seven months which had been misguidedly added to the 1882 Deed of Gift giving the defender much too short notice of a match. 

The NYYC appointed a Special Committee to oversee changes to the Deed of Gift with Schuyler. Schuyler was by then an old man and it was likely to be his last opportunity to rewrite the Deed. The Cup was returned to Schuyler a second time and on 24 October 1887, it was re-conveyed to the NYYC by a formal typewritten and sealed Deed of Gift, drafted by an unknown legal hand, in contrast to the earlier penned handwritten letters from Schuyler. No challenger or other yacht club was invited to comment or make suggestions.

Amongst a number of changes, the new Deed now required a challenging club to give ten months’ notice of a challenge coupled with greater measurement information of their intended yacht, which could not be exceeded.  

The new Deed was read to a meeting of the NYYC members and when a member rose to discuss the Deed, he was quickly informed the Deed was not for discussion as it had been settled and only a resolution of acceptance was required. The American outdoor magazine, Forest and Stream, described the proceedings as “a matter cooked in committee and given to the club to bolt with its eyes shut,”  and the Deed as a “Death Blow to International Yacht Racing”, questioning the NYYC’s legal right to amend the terms of the trust under which it held the Cup. 

While the Committee and Schuyler no doubt acted with the best of intentions, everyone else saw it very differently and believed the NYYC had acted out of naked self-interest to strengthen its hold on the Cup.  Both the British and the American Press severely criticised it, deploring its legal language which read more like a mortgage than a gentlemanly friendly sporting document.

The Field, published in London, reflected the opinion of British yachting establishment:

“To prevent any other club tinkering the conditions in a similar way, the club which may win the cup will have to covenant that the present unsportsmanlike conditions shall not be altered. Copies of the conditions have been sent to British and foreign yacht clubs, with a letter to the secretary very similar to the one issued thirty years ago. The letter, after recommending enthusiasm in the part of the contestants, winds up with the declaration that any races for the cup will be conducted on strictly fair terms by the New York Yacht Club; but if the club is to be the sole charge of “fair terms,” we do not think they will inspire enthusiasm.”

Others also questioned its legality. A New York lawyer writing to Forest and Stream wrote:

“The only ways in which the New York or any other Yacht club could deal with the cup were to observe the conditions which forever attached to it, keep it perpetually open to challenge and handed over to the club whose yacht should win.

GL Watson wrote to his friend, American yachting journalist, WP Stephens:

“Surely, you Americans are good enough now, to fight us fair. Anyway, I know that we’re not good enough to fight you with one hand tied behind our back, giving you 10 months’ notice as to where we were going to hit you … the whole thing [the America’s Cup competition] is as dead as Queen Anne.”

A NYYC official in later correspondence with the next challenger, the Earl of Dunraven, admitted the Club’s actions in changing the Deed of Gift were, to use his words, “not strictly legal”

The Yacht Racing Association based in Britain then representing most of the major European yacht clubs delivered the decisive message and informed New York Yacht Club in February 1888 that, “The terms of the New Deed of Gift are such that foreign vessels are unable to challenge”.

The Club stung by the criticism, resolved in May 1888; “That the terms under which the races between the Genesta and Puritan, Galatea and Mayflower and Thistle and Volunteer were sailed are considered satisfactory to this Club, and a challenge under these terms would be accepted, …”

It would take the persistent efforts of the Earl of Dunraven over several years to broker an impasse between the NYYC and the Royal Yacht Squadron before the Deed would be grudgingly accepted by a challenger yacht club. Dunraven deserves better recognition for this work for without it, the Cup would have been lost to international sport more than a century ago. Dunraven was admitted to the America’s Cup Hall of Fame in 2016, primarily for this contribution.

Schuyler had died from a heart attack on board NYYC Commodore Gerry’s yacht Electra, on the night of 31 July 1890 during the New York Yacht Club’s annual cruise. The tenuous authority under which the Club and Schuyler had clothed their actions to amend the Deed was now lost forever. The Deed would be in its final form, unless the Club took the proper legal step and persuaded a court to first approve any desired change. 

This is what the NYYC did in 1956 to permit the smaller 12-Meter Class yachts to race for the Cup and to remove the requirement that competitors had to sail to the match venue. Again in 1985, the second trustee, the Royal Perth Yacht Club of Western Australia applied to the New York Supreme Court to amend the Deed to permit racing in a Southern Hemisphere summer when a match was to be conducted in Fremantle, Australia in 1987. Could these matters not have more simply (and much less expensively) been agreed under the Deed’s mutual consent clause? That is a fascinating question and a great subject for a later article.