Interaction with MCA

[Poly]

Originally Posted by Xk59D

The point I'm making simply is IF you claim insurance and you lose it would be wise to ask the insurance before using them what happens. legal fees will pi$$ all over the 2500 quid they already want.

That’s not my understanding of how legal insurance normally works. It’s not always worth the paper it’s written on, and they can often choose to back out of a case at their discretion at any point. My very limited experience of marine legal cover is it is actually a separate insurance policy from the main policy anyway sold under one collective price plan.

[Xk59D]

That is my understanding of how they are, separate insurances. But is a commercial policy the same as a private one for legal cover?, I don't know but would bet on it being different if pushed.

As I keep saying, would be best to ask them and clarify.

[Poly]

Originally Posted by Pikey Dave

This has got to be a very grey area & open to interpretation. When I was heavily into diving we had a "hard core" of 2or3 in the boat & I'd often get asked by one of the lads "can I bring a mate along to make up the numbers" I very rarely said no even though I may have never met "the mate". It never occurred to me that I'd be in the wrong. I wasn't running a business & certainly wasn't making a profit.

And that seems quite logical - perhaps because your mates approached you rather than you say passing out flyers (I’m taking you back to pre internet tech!) saying call Dave for a dive. Just as if I invite a mate this weekend and he brings his wife who I have never met would seem logical; but if my sister in law’s best pal’s brothers wife, wanted ferried to Arran this weekend on her own it might be less clear - especially if she approached me direct via the towns face book group rather than through the chain of friends.

You are right though ultimately if Bruce was trying to be clever his chance of difficulty is somewhat different from if he is unintentionally getting close to the limits. I think the attitude when challenged will have a big impact but also the attitude, position and persistence of the complainer. It can also be difficult for people who aren’t part of a social community to understand that there is a genuine regard for each other, even people who have never physically met.

My main concern if I was Bruce would be that someone high up in the MCA might be looking for a test case to prove a point because s/he thinks people are finding too many loopholes in the regs and wants to clamp down. You never want to be the test case.

[Last Tango]

So what's he "prohibited" from doing.

Going out in his boat, taking friends out in his boat, making new friends.
I think they're pi55ing in the wind.
Individuals with a vested in some other concern that sees this as competition, abusing their power and position.

[ShinyShoe]

Language is an incredibly important thing in these circumstances.

Bruce uses terms like "take people out" "charge" and "boat buddies". On a crew seeking yacht arrangement you talk of "crew". Crew do things, not just sit in bikinis on the foredeck. Although... if you can find me a bikini clad crew who will pay me to sit on the foredeck ...

I know Bruce says his newly found friends are > 60 and so not sounding like they are bikini clad babes. But he says he "takes them out" - that isn't a shared activity of making a passage. While the law doesn't say crew have to help - it feels a bit like it is how a seafari operates..

He is talking of costs of £40 per head. Not small change. While I accept that is mostly for fuel... ...it makes the costs higher than most yacht crew seeking arrangements which include overnight stays!

His maths is flawed. He totalled £120 and said with three friends and him. So that is costs divided between 4 - so should be £30/head. That may be a typo, but on the surface it sounds like the 3 others pay for Bruce to have a day out.

How are the fees agreed? If there is a pre-stated fee and no refund of change at the end and Bruce can't show that he makes a loss... ? For a day trip actually cashing up at the end might make sense? On yachts a kitty is a common approach but you are usually looking at days not hours.

How is the passage agreed? Does Bruce say - "next Saturday I'm planning to go from A to B if anyone wants to join me. Probably stop at X for lunch. Shared costs." or does he say: "Available next Saturday to take people out. Tell me where you fancy going and we will go. £40/head"

On yachts there is some understanding that the crew will be "working". But the reasons for people coming will also vary - from people making up hours for certificates to people wanting to see new places / companionship. Jumping on a rib and being taken somewhere for lunch and brought back sounds more like a taxi service... i.e. commercial

It would also be worth in your "advert" being clear what happens if there are not enough crew... do you go alone or need a certain number of crew...? And what experience?

Pikey's dive journeys with a mate of a mate - Perfectly reasonable. They will be co-participating in the dive. If Pikey however posted on the Dive Club website "Terrible weather for a dive next week - but I'm going for a joy ride - £40 a head to join me" I'd expect the same grief. Or if he posted up on various dive sites saying "Happy to take anyone to a dive site for £40 a head" - that sounds commercial.

MCA have clearly had a bit of a rattle from the Cheeki incident. They knew fine well ventures were taking place that they thought were commercial but the operator said were not. They did nothing to challenge it. They need to be seen to not be turning blind eyes to things.

in addition to Bruce changing his language so he refers to "Seeking crew to make the journey from A to B more enjoyable. No major sailing skills needed, ability to read a map/chart may be helpful. Would suggest stopping for lunch at X. Shared costs" ... he also would need his new crew to describe it in those terms if asked and not "Bruce takes me out whenever I ask to go, he charges £40 a trip and that covers fuel and lunch. He said if asked I should say I'm his boating buddy but really I just sit there and he drives me about. We pay for Bruce's lunch because he does all the hard work driving us."

[brucehawsker]

Thank you guys so much for replying. This has really upset the missus and me. I have been advised to be cautious about what I say in an open forum while this matter is ongoing.

I promise to keep you updated when I can.

• First point on the maths – yes a typo. £120 and there were 3 of us on the boat – Bruce+2 - so it was £40 each, I paid my wack, I always do.

By way of background: children have grown up and fled nest, wife is focussed on two young grandchildren, I need friends to have a trip out with and beer and sarni at a Solent hostelry. End of story….

• Yes, I have used variously NextDoor, RibNet, Crewseekers and others to find people to crew with me. I don’t like to be out for a full day excursion on my own. I like people to help keep a lookout for lobster pots, unusual activity from other boats, unexpected wash, and to help with fuelling, mooring etc. Sharing costs is never mandatory, is done after the event based on fuel used off the Smart Gauge. There is never anything expected if people don’t turn up or cancel that morning (or go to the wrong boatyard)

• It’s a Prohibition Notice under MSA 1995 Section 262. “Carriage of passengers… involve risk of serious personal injury… [and]… contraventions of SI1998 no 2771”

• Arbitration is only to challenge the Notice.

• Cost is based on their quoted fees of “at least £1,000 per day” and chats to a couple of HSE and marine solicitors about how much this could easily cost.

• Nothing is signed. Yes most people I am still in touch with. In face almost all have been out more than once…. Lymington and Milford is a pretty small community…

• Yes I have people who could act as witnesses – they have offered to without being asked. I think universally everyone feels upset at what has happened. It has disrupted a group of good friends….

• We haven’t had any new “friends” since before MCA first involvement middle of last summer. But given the age of some of them, I am always keen to widen this group of friends – like any sociable bloke…

• "Am I trying to pull a fast one & am I acting within the spirit of the law?" If the honest answers are no & yes…”. They are. My motives are pure.

• “They only prohibit him from doing something that he was doing. If he wasn't operating commercially to start with, they can't stop him from doing so, ergo the prohibition notice is worthless. Obviously this all depends on what Bruce was actually up to & the subsequent wording on the notice. Without that knowledge we're guessing.” I hope the above clarifies Pikey Dave’s questions, frankly I never believe I have been advertising nor operating commercially.

• Legal fees could be impossibly high, but I would be happy to represent myself. I may be a neophyte in MCA and Marine commercial matters, but I am not a stranger to commercial court and tribunals. Google is wonderful resource these days. And thank you friends for your input. It is all grist to the mill (why does beer crop up so often in my posts…?)

• “Just as if I invite a mate this weekend and he brings his wife who I have never met would seem logical; but if my sister in law’s best pal’s brothers wife, wanted ferried to Arran this weekend on her own it might be less clear - especially if she approached me direct via the towns face book group rather than through the chain of friends”. This example is helpful. I was asked off NextDoor if I would ferry a couple to The Hut at Colwell bay. Obviously the answer was not, and a referral to commercial operators in Lymington was appropriate. We decide on the fly depending on the sea state at the mouth of the Lymington river just where we are going each trip.

• “I think the attitude when challenged will have a big impact but also the attitude, position and persistence of the complainer.” I have stood my ground persistently, kindly, politely up until now. I am not a push over and I have a right to enjoy my boat and entertain my friends.

• “So what's he "prohibited" from doing. Going out in his boat, taking friends out in his boat, making new friends.” The Notice at face value says that by doing that I am involving friends, old and new, in “a risk of serious personal injury”. And that my activity is carrying passengers – a commercial activity. And that I need a Small Commercial Vessel Certificate ie coding.

• ShinyShoe makes a brilliant point about language.

Take people out: I am the owner, the responsible captain, the insured person. I may let them helm or navigate, but it is my responsibility at all times. I give the safety briefing! Ultimately, what I say, goes.

Charge: Its post hoc, no more charging than going Dutch at The Wheatsheaf where I put my card behind the bar and people order freely and pay their share…

Boat Buddies: Friendship and chatting is very important to us all. That does not make the crew role of lookout, handing off or managing ropes etc when rafting up or unrafting, doing ropes, input into how fast we go, collectively deciding on next destination, checking depth, monitoring channel 67 etc etc less important

Crew: Crew do help. I would not go as far we as do, in the weather we go out in sometimes, solo.

£40: Or even £45. Not small change I agree. I know somewhere that £25 is the “recognised” cost sharing for a day out in a yacht, and this exceeds that “historic” number. However, powerboats cost more per person day than yachts

Pre-stated: No calculated after – cash up back at the boatyard

Taxi service: Unless sea state is unexpectedly grim and we just across to Yarmouth and back, the trips are far broader and more varied. I show off my knowledge of the area and take people to less usual places. So “around the island” might involve an unscheduled drop in to Bembridge, or an unplanned diversion to ogle a liner, or coffee at Cowes as well as lunch at Gosport light ship. We never go the shortest route unless it is foul and wet!

Experience: None required – just like a yacht crew advert in many cases

Numbers: I have been out with one other up to six others. Boat is certified for 8 but with some of my larger oldies she has trouble getting off the plane with 8! No minimum. Obviously, if only one other comes, I bear extra cost…. I have never post hoc received more than £45 from anyone.

"Bruce takes me out whenever I ask to go, he charges £40 a trip and that covers fuel and lunch. He said if asked I should say I'm his boating buddy but really I just sit there and he drives me about. We pay for Bruce's lunch because he does all the hard work driving us.": I appreciate the parody but genuinely it is NOT like that!!

Sorry this is so long. If anyone from the MCA reads this, I hope they will appreciate its genuine nature. I think it reflects accurately my verbal and written responses to them to date.

[Pikey Dave]

So the notice is telling you to stop doing something that you may or may not be doing. If you're not doing it to start with I.e carrying passengers on a commercial basis, then the notice is complied with & you carry on. Simples. Is there a charge or penalty attached to the notice, or is it simply a "stop what (we think) you're doing?" If it's just a stop what you're doing, then you've complied & that's the end of the matter. A notice is an easy cheap tool to use for the likes of the HSE/MCA/EA etc, it's their version of a parking ticket. They don't have to prove anything. It's a case of "This is what I think you're doing, even if you're not, so stop doing what I think you're doing" If you continue to do what they think you're doing they have to take it further which ultimately is court, where they have to PROVE you're doing what they think you're doing. Which is a whole different ball game. If you've ever had a speeding ticket, you'll recognise the bully boy fear tactics.
Personally I would keep away from social media for a while, keep it private amongst friends & let the MCA make the next move.

[gpsguru]

Originally Posted by brucehawsker

• It’s a Prohibition Notice under MSA 1995 Section 262. “Carriage of passengers… involve risk of serious personal injury… [and]… contraventions of SI1998 no 2771”

This is essentially what it’s all about ..............

There was a massive thread on WSF (world Sea Fishing) about 3 years ago on the very subject. There was a 'boat buddies' thread started which was to help those that wanted a day out fishing and just to share the costs i.e. no profit for the boat owner.

To cut it very short, there was a heated debate about the legalities of this arrangement ........... the MCA were approached and gave a categorical reply that the 'boat buddies' were not friends or family and therefore it would be deemed to be in contravention of the various statutes ...... so the thread was binned !

The reply from the MCA pointed out that charter skippers have qualifications and their boats are coded to MCA standard which somewhat mitigates risk to life and injury. I can see this point of view as being an acceptable base for prosecution. Remember, the MCA role is there to reduce accidents at sea by either the use of statues, education, or setting minimum lawful standards (i.e. enforceable codes of practise)

Now .......... I have looked into it and I cannot see that there has ever been a court case or legal challenge with regard to this practise ........ I guess it needs a test case in a court of law..............

Personally I don’t see an issue with it ............also, I have a commercial endorsement


Bruce ............ I would be inclined to let the thread die and to steer clear of social media for offering a free day out for company . Also, I would be very wary to communicate with the MCA unless you are having your verbage checked over by a commercial lawyer........... just drop the subject, go out there and enjoy your boat.

[beamishken]

I wonder what the legalities around the various sailing crew finder pages are? Seems to be one rule for sail and another for power?