New workboat code - possible issue with definitions

[Tony Hill]

I received below from MCA in Aberdeen. We live on a small island. During the summer some residents jump into their small boats, head to the mainland to jump in their cars and head to work. Done the same thing for years. I am sure the new legislation wasn’t meant to prevent this but how would you interpret below? The MGN 280 was boats associated with a business/transporting passengers etc leaving everyone else alone What appears to be the case if my interpretation is correct is that the MCA has defined sport and pleasure and stated everything else must be coded.

The Workboat Code - The Safety of Small Workboats & Pilot Boats - A Code of Practice (Edition 2 - Amendment 1) has superseded MGN280 and is the applicable code for new vessels and those which have been uncertified for more than 5 years. This code defines a “pleasure vessel” as follows: “any vessel which at the time it is being used is, in the case of a vessel owned by a body corporate, used only for sport or pleasure and on which the persons on board are employees or officers of the body corporate, or their immediate family or friends.”

Based on what you have said in your email, below, I do not believe that the present usage could be classed as either “sport” or “pleasure”.

We were offering free lifts in a 5.2m SIB across 200m of sea when our island harbour became blocked and unusable after Storm Dennis. People to work, doctor to surgery, medicines for Island residents. Not a penny exchanged, it was done as a community gesture.

The local fisherman and plumber take their own boats across to the mainland to travel to work by car. The interpretation above has caused discussion in the pub.

Tony

[GuyC]

I think that you would consider those you were giving a lift to as friends.

The code can't cater for every eventuality and I expect that showing some community spirit would be outside their normal scope.

In our litigious society though, what would be the result of you having an accident and one of your friends drowning other than obviously all the heartache. It might be worth considering even jokingly saying something to ensure that everyone on board knows that it's not an official service and no one has any specific training to undertake it.

As you are discussing it, someone is considering the ramifications and you've let the genie out of the bottle so to speak.

Well done to you for providing the service.

[Poly]

I appreciate you may not want to windup the MCGA who are your regulatory body, especially as it looks like the slate has been dredged and normality restored to island life. We also don’t know what the previous correspondence was that lead you into this dialogue – and obviously you have some belligerent trouble maker alerting the authorities to your community spirited efforts, so poking the hornets nest may be unwise.

However, if I was in your shoes I’d be tempted to point out:

• There is no difference between the definition of a pleasure vessel in the old MGN280 and the “new Workboat Code”. Both refer to the same definition of a “pleasure vessel” as described in “The Merchant Shipping (Vessels in Commercial Use for Sport or Pleasure) Regulations 1998” SI 1998 No 2771. The email you quote from the MCGA seems to wrongly imply there was a change.
• The New Workboat Code is enacted through Secondary Legislation (SI 1998 No 1609). The Workboat Code makes it clear that it should be read in that regard. Both the SI and the code make clear (1.1 and 1.2 of the code) that it applies to: “[small workboats] in commercial use, other than when in use for recreational, sport or pleasure use, for which there are more appropriate codes.” [my emphasis]
• It is misleading for the MCGA to selectively quote only the definition of a pleasure vessel without highlighting that the code would not be applicable at all to recreational use, or non-commercial situations.
• Ultimately therefore the question that a court would need to determine would be does the code apply. Neither the code nor the legislation define the terms “commercial use” or “recreation”. We can go some way to inferring what parliament considered commercial use by looking at s2(a)ii, (b) and (c) of The Merchant Shipping (Vessels in Commercial Use for Sport or Pleasure) Regulations 1998 although there may be other uses that could be considered commercial; e.g. if a harbour master was to use a boat to inspect navigation marks nobody is paying for that but its clearly a commercial activity.
• I note that the MCGA also failed to highlight that the code would not apply to recreational use. I would interpret recreational (which simply implies outside of work) as broader than pleasure (which might imply enjoyment).
• There could be an argument about whether the passengers are strictly “friends”. I think if you can tell me their name, where they live, who the live with, the job they do, what their dog is called, and the type of car they drive without looking it up there’s a pretty good argument these are “friends” and that is not surprising in a small close-knit community like yours – when stuff like this happens you all club together. Obviously you might start running into bother if you were to take random strangers over in lieu of the ferry service.

[Pikey Dave]

I might be oversimplifying this, but surely the operative term here is “workboat” if no one is working I.e. getting paid, then it’s not a workboat at the time.

[jeffstevens763@g]

i think you would be classed under emergency measures with the ferry out of action giving basic support until a normal service is resumed, your actions have no comercial gain for you of your company. i think it would be very foolish of the MCA to take you to task over helping the community in adverse weather and the result of it. i would certainly think of a signed disclaimer by passengers though for good order. good on ya i say Tony

[jwalker]

Personally, I think you're OK with what you are doing but since you got a poor response I wonder how you worded your communication to the MCA in the first instance. In such a small community I think you could consider any resident as a friend and I regard a free lift across the water as pleasuring your friends. I'm sure they're pleased to have you transport them!

Here's the dictionary definition of 'befriending' someone, it appears to me to cover what you are doing....

befriend /bɪˈfrɛnd/

verb
act as or become a friend to (someone), especially when they are in need of help or support.

[Tony Hill]

Thanks for the supportive words. Whilst the incident with the harbour triggered the MCA response to the question we now have an excavator here and the particular event done and dusted. I did not mention the specific incident in the opening text.
The concern here is more about general use of a boat in every day life where the use is not sport or pleasure but neither is it directly related to a business. I do admit that it would be highly unlikely for MCA to hunt these boats out. It’s just don’t have the accident. When asked for opinion Government bodies appear to have steeper sliding shoulders these days.

Tony

[Poly]

Originally Posted by Tony Hill

I did not mention the specific incident in the opening text.

you did in your penultimate paragraph I guess others, like me, may have seen this discussed elsewhere on the internet.

The concern here is more about general use of a boat in every day life where the use is not sport or pleasure but neither is it directly related to a business.

Which bit of the opening two paragraphs of the code (which correspond directly to the law) make you think that is an issue? I wouldn't be concerned at all that an official who only deals with commercial boats has forgotten that his rule book only applies to commercial boats.

[jeffstevens763@g]

my guess is that the only way MCA could hunt the boats out is if your claiming for them directly from the business proving their commercial use but that could be as simple as a log kept and a % proportion deducted for personal use or you dedicate one boat to that role and dont claim back from HMRC. i would also add who is helming the boat at the time and are they being paid by the business all getting a bit intricate i know but to put it in perspective HMRC investigated me a few years back i was claiming £30 for my PC i was asked how much personal use did i have thats how petty it can get.

[ShinyShoe]

These are two distinct scenarios.

Scenario 1 - a journey that might normally be commercial being substituted for a non-commercial one because the commercial one broke. As many have said - these are your friends. If I was in court I'd be saying to the Judge... "Imagine your neighbour has booked a Taxi to take him to the airport. The taxi breaksdown. Your neighbour is going to miss his flight. You drive a minibus commercially and also own a sports car. You offer to take him in the sports car. No money changes hands. What law did you break?" None! So now Mr Judge - explain to me what is different here? Different legislation. But both allow you to help a friend on a non-commercial basis - even if in different circumstances the same journey might be done by others on a commercial basis. (It was your pleasure to help your neighbour)

Scenario 2 - making a pleasurable trip on the way to work. Until you are at work, you aren't working. If you are - my boss owes me a shed load of cash! Likewise I couldn't give someone else a lift to work (perhaps a different employer next door even) - as that would be for hire / reward. Again different laws from roads - but you'd only need to add reasonable doubt! There would be certain circumstances where this will be commercial activity - does the plumber transport materials on the boat? does the plumber go to somewhere inaccessible by road using the boat so can't say he took the 'pleasurable' route on the way to work? What happens when the weather is bad? Does he the go by ferry instead? (If so thats like my friend who cycles to work for 'pleasure' but gets the train when it wouldn't be pleasurable anymore.)

Personally - I think as soon as you produce a log book that shows it wasn't commercial activity - you sound like you are trying too hard to prove it wasn't and maybe it was. So in scenario 1, you can address that by verbalising that you can give them a lift, you'll do it as a friend not as a boat operator. If you really want an audit trail, make it less obvious. A text message, email? Not with a load of legal wording. But friend wording.

In the second case, again keeping a log to prove things sounds like trying too hard. But again a log via text, email, a routine ships log that is completed for good seaman ship. But don't over do the documentation. A text home that says "Coming home on the ferry tonight as I don't think my boat will be much fun" would be as useful for proving your use of the boat is for pleasure as anything else.

[ShinyShoe]

And...

Is that journey covered by the MCA or by a Local Council Licence?

[PinkPanther]

Complete waste of time contacting MCA as they take far too long if we have any issues regarding the code we contact our CA Certifying Authority who in our case in Larssens marine who carry out our annual inspection and they can give you a response within 24hrs they also have direct lines with the correct personnel at MCA to liaise with if need be.