{"id":3877,"date":"2012-12-01T22:38:32","date_gmt":"2012-12-02T01:38:32","guid":{"rendered":"http:\/\/bwsailing.com\/news\/?p=986"},"modified":"2012-12-01T22:38:32","modified_gmt":"2012-12-02T01:38:32","slug":"lawyers-battle-over-cup-cat","status":"publish","type":"post","link":"https:\/\/www.bwsailing.com\/bw\/lawyers-battle-over-cup-cat\/","title":{"rendered":"Lawyers Battle Over Cup Cat"},"content":{"rendered":"

Hero or hijacker? The question has swirled around night watchman Todd Tholke, who\"\"<\/a> filed a $200,000 salvage claim after finding the French America\u2019s Cup World Series team\u2019s 45-foot catamaran in the dead of night after it drifted away from a San Francisco pier.<\/p>\n

Tholke initially was praised, and a synopsis of the event on the French Energy Team\u2019s website said he had been invited to join the team in the prestigious guest position during the last race of the series. \u201cFortunately, the sea was calm, and the damage was very limited,\u201d the team said on its website Oct. 1, the day after the AC45 was returned.<\/p>\n

What the French team did not expect was for Tholke to file a claim in the U.S. District Court for Northern California invoking centuries-old maritime law and saying that \u201cdue to the strength of the wind and currents and the nighttime conditions\u201d it took him several attempts before he \u201clashed a line onto a rudder post and pulled the Energy Team AC45 off its perilous position on the rocks.\u201d Compensation for the salvage \u201cshould be in excess of $200,000,\u201d the claim filed Oct. 4 contends.<\/p>\n

The lawyer representing the French team and its boat has rebutted Tholke\u2019s salvage claim, calling his motion \u201cdemonstrably false.\u201d Noah Hagey asked the judge in the case to vacate the \u201carrest warrant\u201d that was placed on the boat after the claim was filed. \u201cEnergy Team\u2019s crew relies on its sailboat to earn a living and hereby moves the court to vacate the vessel\u2019s [arrest] or, in the alternative, to fix a reasonable security so that its crew can reclaim its use,\u201d according to papers filed Oct. 23. \u201cSuch a security should not exceed $375 in light of the \u2018services\u2019 rendered, representing $125\/hour for the three hours plaintiff claims he expended in \u2018rescuing\u2019 the vessel on Sept. 30, 2012.\u201d<\/p>\n

Tholke arrested the Energy Team\u2019s sailboat based on a \u201cfalsely verified complaint that misstates all of the material facts surrounding his supposed \u2018salvage\u2019 of the vessel,\u201d the French team\u2019s response says.<\/p>\n

Lawyer John Edgcomb, who is representing Tholke, says his client called the Coast Guard immediately after finding the boat. \u201cHe was really just seeing if they were going to go and get it, and apparently they indicated they would not be under the circumstances,\u201d Edgcomb says.<\/p>\n

Tholke called to inform the Coast Guard \u201cof the immediate peril of the Energy Team AC45,\u201d and he conducted a salvage service \u201cupon learning that the Coast Guard would not come to the aid of the perilously situated Energy,\u201d court documents say.<\/p>\n

A Coast Guard transcript and photo of the recovery that Soundings obtained shows that Tholke, who identified himself to the Coast Guard as the night watchman at the Treasure Island Marina, did not ask for assistance in the vessel\u2019s recovery. \u201cI think I got a humdinger for you,\u201d transcripts of the call show Tholke saying. \u201cThis is going to be on the news. This is going to be so funny.<\/p>\n

\u201cIt\u2019s drifted and it\u2019s on the rocks, but it\u2019s barely touching,\u201d Tholke told the Coast Guard. \u201cI was going to go get it with my Whaler, but I was thinking, um, I didn\u2019t want someone to think I stole it. \u2026 It\u2019s like a quarter-of-a-million-dollar yacht someone forgot to tie up. It\u2019s not on the rocks. It\u2019s just like touching it right now.\u201d<\/p>\n

A photo of Tholke aboard his 15-foot Whaler towing the 45-foot catamaran shows the San Francisco-Oakland Bay Bridge lit up in the night and flat water. Hagey says Coast Guard records show winds that night were between zero and 2 knots.<\/p>\n

After the claim was filed, the cat was \u201carrested\u201d by a U.S. marshal Oct. 7 and was being stored \u2014 disassembled and in two containers \u2014 in a warehouse leased by the America\u2019s Cup Event Authority.<\/p>\n

Even before the arrest of the AC45, the French team had realized it wouldn\u2019t be able to compete in the 2013 Cup finals because it lacked the funding and sponsorship to build an AC72 catamaran, the yachts that will be used, for the first time, next year, according to Jean Yves Lendormy, a San Francisco lawyer who had worked with the team on a fundraiser dedicated to a youth sailing initiative. \u201cThat\u2019s why they\u2019re not here next year. They don\u2019t have a sponsor,\u201d Lendormy says. \u201cThis year, they only had one sponsor \u2014 you can see that on their sail, and it\u2019s a little sponsor. These guys are a little Swiss watchmaker. It\u2019s not like the British team with J.P. Morgan.\u201d<\/p>\n

Edgcomb says the team\u2019s financial status is not relevant to the claim. \u201cTheir insurance should cover salvage claims and should have provisions for posting security,\u201d he says. \u201cThe next America\u2019s Cup World Series races are in Italy in April, so I don\u2019t know when they need [the cat] next. If they want their boat, all they have to do is post security.<\/p>\n

\u201cThey have an insurance policy,\u201d Edgcomb adds. \u201cIn the popular press they say these boats cost over a million dollars, and I believe the Energy Team says they bought theirs in 2011, so if you were the owner, wouldn\u2019t you insure it?\u201d<\/p>\n

The online community has cast blame at everyone for the fact that the boat went adrift in the first place, from citing poorly tied knots to accusing Tholke of cutting the cat loose as part of a scheme, although the boat\u2019s escape seems to be one of few details not in dispute among the stakeholders.<\/p>\n

The AC45 was docked at San Francisco\u2019s pier 30\/32 between America\u2019s Cup World Series races. The outgoing tide reduced the water depth enough for the cat\u2019s chain to get caught on debris beneath the pier, Hagey says. When the tide turned, the cat rose and the chain, which remained caught, failed. The boat then drifted three or four miles to Treasure Island\u2019s Clipper Cove, where Tholke, who is also a musician, is a liveaboard.<\/p>\n

In a June newspaper article focused on Tholke\u2019s open-mic gigs, Tholke said he lived on his boat as a way to continue pursuing his dreams of making music. The Coast Guard transcript shows Tholke identified himself as a night watchman at the Treasure Island Marina, which is not uncommon for a liveaboard. The 2012 San Francisco Bay Plan says marinas may exceed the authorized number of liveaboard berths, provided \u201cthat a great number of liveaboard boats is necessary to provide security or other use incidental to marina use.\u201d<\/p>\n

Edgcomb says the invitation to ride in the final leg of the race was publicly stated but not directly extended to his client, another point Hagey denies. \u201cI\u2019m really trying to defend Todd\u2019s reputation because it\u2019s really taken a beating,\u201d Edgcomb says. \u201cI\u2019m trying to give the perspective that he really does have a valid salvage claim so we can avoid terms like \u2018hostage\u2019 and \u2018pirate.\u2019 \u201d<\/p>\n

The sailing community has rallied around the French team; others say Tholke is due a large reward. \u201cThe United States has this reputation for being a very litigious country, and here you have this wonderful event in the America\u2019s Cup World Series that\u2019s possible for even a team with modest means to participate, like the French team, and everyone is absolutely wonderful,\u201d Lendormy says. \u201cAnd all of a sudden it\u2019s marred by the acts of one person.\u201d<\/p>\n

\u201cFor the people in the boating community and the people in the Bay Area, who are very generous and neighborly, it\u2019s just a big black eye,\u201d Hagey says.<\/p>\n

Courtesy of www.soundingsonline.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Hero or hijacker? The question has swirled around night watchman Todd Tholke, who filed a $200,000 salvage claim after finding the French America\u2019s Cup World Series […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8,15],"tags":[],"class_list":["post-3877","post","type-post","status-publish","format-standard","hentry","category-cruising-news","category-news-and-notes"],"_links":{"self":[{"href":"https:\/\/www.bwsailing.com\/bw\/wp-json\/wp\/v2\/posts\/3877","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.bwsailing.com\/bw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.bwsailing.com\/bw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.bwsailing.com\/bw\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.bwsailing.com\/bw\/wp-json\/wp\/v2\/comments?post=3877"}],"version-history":[{"count":0,"href":"https:\/\/www.bwsailing.com\/bw\/wp-json\/wp\/v2\/posts\/3877\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.bwsailing.com\/bw\/wp-json\/wp\/v2\/media?parent=3877"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.bwsailing.com\/bw\/wp-json\/wp\/v2\/categories?post=3877"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.bwsailing.com\/bw\/wp-json\/wp\/v2\/tags?post=3877"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}