Category: 1887 : CHALLENGE N°7

The third "Deed of Gift"

Following the problems caused by the false waterline length of Thistle and alarmed by the growing British threat, the New York Yacht Club has decided to amend the Deed of Gift. This will be the beginning of a period of controversy that might have put an end to this story.

This period began on Oct. 3d, 1887, when the New York Yacht Club voted to appoint a committee of five "to confer with George L. Schuyler on the subject of amending the deed of gift of the America's cup, and with full power and authority to execute in behalf of the club any and all papers and instruments necessary to effect any changes in such deed of gift and the acceptance thereof which may be mutually agreed upon between them and Mr. Schuyler."
The committee appointed consisted of Ex-Commodore James D. Smith, Philip Schuyler, Gouverneur Kortright, Latham A. Fish, and Gen. Charles J. Paine, with Commodore Elbridge T. Gerry acting ex officio.

These men were of such standing and character as to preclude any imputation of desire on their part to amend the deed to secure unfair advantages to their club, yet the language of the resolution by which they were given their authority to act unfortunately laid the club open to the charge of assuming powers not vested in trustees by common law or by custom, in proposing changes in an instrument defining the conditions of their trust.

The deed drawn by the committee was the first document conveying the cup to be couched in full legal form. The cup was formally returned by the yacht club to Mr. Schuyler, and under date of October 24th, 1887, it was conveyed by him to the club under the new deed, the text of which is given here :

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.

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}

The most vital change from the two former deeds was in the arrangement, intent and effect of the mutual agreement clause. In the old deeds the clause providing for mutual agreement on all terms was the initial basis of a match ; in the new deed it could not be, for the prime condition as laid down in the document was that first, "the challenging club shall give ten months' notice [of challenge] in writing," and "accompanying the ten months' notice there must be sent the names 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 be sent as soon as possible." After the challenger had complied with this essential requirement, it was provided that he could make, by mutual agreement, certain arrangements as to dates, courses, etc., for the races ; but the provisions for these arrangements could in no way affect the initial basis of the negotiations, namely, the sending of precise information about the challenging vessel ten months before the match.

George L. SchuylerIn addition to the important change noted, the new deed contained provisions that centre-board or sliding keel vessels should always be allowed to compete for the cup without restrictions ; that in the event of failure to agree on the number of races three should be sailed ; that time allowances should be abandoned ; that all races should be over ocean courses free from headlands, practicable in all parts for vessels of twenty-two feet draft.

As both the letter and the spirit of the deed were departed from before any match could be obtained under it, and as in practice it has been interpreted in such ways as to allow its original aims and conditions to become almost lost to view, it is proper to examine, so far as may be, into the causes and motives that led to its preparation.

First of all there was unquestionably a desire on the part of the committee to exact terms from a challenger which would make possible the leisurely building of a defending yacht from dimensions suggested by those of the challenging yacht. Volunteer was built in a hurry, and this circumstance was not forgotten.

The clause providing that centre-board vessels should always be permitted to challenge for the cup was also framed with an eye to the interests of the makers of the deed. The committee held the centre-board type to be superior to keel vessels, and it believed, in view of the Arrow incident, which had left a strong impression on the mind of at least one of its members, that no English club would willingly permit a centre-board yacht to sail for the cup in the event of the trophy going to England. It therefore determined to secure for itself the right to challenge with such a vessel if the need ever arose, by imposing in advance terms more satisfactory than English yachtsmen were expected to grant ; and no secret was made of its purpose.

It appears the committee, while having always in mind the interests of the New York Yacht Club as defender of the cup, never lost sight of the club's welfare should it ever find itself in the position of a challenger for the cup. The clause providing for the abandonment of the notoriously unfair and unfit inside course of the New York Yacht Club, and the sailing of all races on ocean courses free from headlands, with a mean depth of twenty-two feet, was excellent on its face, and had the additional merit, from the committee's viewpoint, of obviating racing in the Clyde, with its high headlands, or The Solent, with its sands and bars, in the event of the cup going abroad, and a deep-draft centre-board boat being sent after it.

However well-intentioned the members of the committee may have been in making these changes, they not only put themselves in the position of trustees adding conditions to a deed of trust, which in this case would enable them to better hold the cup, but they embodied in the instruments, it will be seen, conditions which aimed to make it obligatory on future winners of the cup to accept a challenge from the club on terms of its own making.

At this time, when the centre-board type of vessel has ceased to influence cup racing, the action of the New York Yacht Club in " putting an anchor to windward " for that type of vessel appears less important than it must have seemed to the club in 1887, and the statement, sometimes heard, that " the deed was drawn for the protection of challengers," has, until weighed, a suggestion of disingenuousness. Under the terms of the deed a challenger has the right, if he cares to consider it as such, of holding to all its conditions. On the other hand it now appears that any kind of arrangement can be made by "agreement” at the pleasure of the club holding the cup, if the challenger does not care to sail under the full terms of the deed, which all challengers have shown a decided aversion to doing.

That the deed proved unsatisfactory was unfortunate, as it seemed likely the changes in it were to be final, so far as its form was concerned, for with the demise of Mr. Schuyler, none of the original donors would be left.*
* George L. Schuyler died, from heart trouble, on board Commodore Elbridge T. Gerry's yacht Electra, in New London Harbor, on the night of July 31st, 1890. He was a grandson of Gen. Philip Schuyler, of Revolutionary fame, was born at Rhinebeck, on the Hudson, June 9th, 1811, and was a graduate of Columbia College. He was twice married, both his wives being granddaughters of Alexander Hamilton. Although interested in the business of steam navigation in Long Island Sound, and in the vicinity of New York, Mr. Schuyler devoted much time to the pleasures of outdoor life, and to literary research, writing some valuable works on the campaigns in the Revolution in which his grandfather had a part. His interest in yachting was unflagging, while his experience covered the history of the sport in America from its inception.

No instrument set up in the world of sport has ever received more general condemnation than this deed of gift. It has been assailed right and left, at home and abroad. English yachtsmen from the first argued that the Americans were hedging the cup about with so many conditions that no man could win it. They complained that the dimensions demanded with a challenge gave the challenged parties an idea of the challenging boat sufficiency definite to aid them materially in building a defender, and that ten months' notice was unreasonable.

The London Jueld, which represented extreme British opinion in matters pertaining to international yachting, imputed bad faith to the New York Yacht Club in changing the deed of gift, and it appears to have reflected the sentiment of many prominent English yachtsmen. The following comment was made by the Field, editorially, on the New York Yacht Club's contention that any club winning the cup should hold it subject to the full terms of the deed :
" 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 on the part of the contestants, winds up with the declaration that any races for the cup will be conducted on strictlv fair terms by the New York Yacht Club ; but if the club is to be the sole judge of ' fair terms,' we do not think they will inspire enthusiasm."

Forest and Stream, probably the most conservative and fairminded American journal treating the subject of yachting, and reflecting the best American sentiment in yachting matters, called the deed " An Act to Prevent Yacht Racing," and said of it :
" The charges were made against the club, and we still believe correctly, that in assuming the ownership of the America's cup and making new conditions to govern contests for it, the club acted illegally and unfairly, having no right to establish any conditions of its own, and having gone further in establishing very unfair ones. . . . The whole future of international racing was, and still is, in our opinion, centered in the question whether the America's cup as a perpetual challenge trophy for international competition is the common property of all existing yacht clubs, to be raced for on fair terms, or whether it is in effect the private property of the New York Yacht Club, the privilege of competing for it being accorded foreign clubs as a favor and not as a right."

This view has found frequent and forcible repetition since originally expressed by Forest and Stream.
So strong was the pressure exerted on the New York Yacht Club during the first assaults on the deed of gift, that after six months of deliberation the club placed itself on record as modifying the deed, by the following resolution, adopted in May, 1888, in response to an inquiry made by William York, secretary of the Royal London Yacht Club, asking for an interpretation of the terms of the deed:

Whereas, the secretary of this club has received letters dated November 26th, 1887, from the Royal London Yacht Club, and from the Yacht Racing Association, representing the principal yacht clubs of Europe, and dated February 22d, 1888, regretting that the terms of the new deed of gift of the America's cup, presented by Mr. George L. Schuyler, and dated October 24th, 1887, are such that foreign vessels are unable to challenge, and

Whereas, in this deed of gift, by which the cup is now held by this club, any mutual agreement may be made between the challenged and the challenging party; therefore be it

Resolved : 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 ; but with the positive understanding that if the cup is won by the club challenging, it shall be held under, and subject to the full terms of the new deed dated October 24th, 1887, inasmuch as this club believes it to be in the interest of all parties, and the terms of which are distinct, fair, and sportsmanlike.