Yachting has always been regarded as the essence of sportsmanship, and properly so. This is reflected in the spirit and venerable tradition of the America’s Cup, which has long dictated that participants maintain a sense of fair play and engage in honest rivalry. These principles were violated when the San Diego Yacht Club entered a catamaran, thereby pitting a multihulled vessel against a monohull for the first time in 130 years of America’s Cup competition, and virtually ensuring the latter’s defeat, irrespective of the skills of its skipper and crew.
I cannot accept that such a gross mismatch was permissible under the deed of gift, which states that the Cup "shall be preserved as a perpetual Challenge Cup for friendly competition between foreign countries,” and must therefore part company with the majority, which has dismissed this critical clause as mere "precatory” language.
The goal of fostering friendly competition is the condition upon which the Cup was donated. As such, it expresses an intent of the donor which must not be lost in the quest for victory, and which may not be measured solely through reference to physical dimensions.
In seeking to justify its entry of a vessel clearly intended not to compete, but solely to defeat, San Diego implies that the IAS court was misleading on the issue of the catamaran’s eligibility when it rendered its prerace ruling of July 25, 1988. In fact, the court’s decision explicitly noted that "the issue of whether a multihulled boat is permitted to race in the America’s Cup cannot properly be determined by the Court in the context of a contempt motion,” and, indeed, cautioned that nothing therein "should be interpreted as indicating the multihulled boats are either permitted or barred under the America’s Cup Deed of Gift.” The court went on to state that "[t]he intent of the Deed seems to be that the parties must design, build and race their boats at their own risk, subject to possible disqualification and forfeiture at the conclusion of the races.”
In light of the fact that San Diego did not seek declaratory relief with respect to the eligibility of its proposed vessel, the IAS court properly declined to render what would have constituted an advisory opinion on that question. At that stage in the proceedings, the court was also correct in denying Mercury Bay’s premature motion to hold San Diego in civil contempt for anticipated conduct.
On this record, it is clear that San Diego was aware that the *111eligibility of its catamaran defender had not been determined in the earlier proceeding. Indeed, counsel for San Diego acknowledged the risk of disqualification—as well as the risk of forfeiture—when he stated, during the contempt motion hearing, "[I]f it appears * * * San Diego has not defended the cup in accordance with the deed then it would be appropriate for Mercury Bay to come into court and ask the Court to order a forfeiture of the cup.” It so appears.
The 1988 America’s Cup races were manifestly unfair in every sense. True sportmanship and the integrity of this great sport demand far more, as does the very deed of gift by which this competition has been sponsored for over a century. For these reasons, and upon the sound opinion of the IAS court, I most respectfully dissent.
Milonas and Wallach, JJ., concur with Sullivan, J. P.; Rubin, J., concurs in an opinion; Kassal, J., dissents in a separate opinion.
Order, Supreme Court, New York County, entered on April 7, 1989, reversed, on the law, without costs and without disbursements, and a declaration made that San Diego’s catamaran was an eligible yacht, that it was the winner of the two races held on September 7 and 9, 1988 for the America’s Cup and that San Diego, as the winner of the two races, is entitled to the America’s Cup in accordance with the terms and conditions of the deed of gift of October 24, 1887.