PWC Conviction Appealed

[Nate]

Neil - please feel free to continue rambling as I find your comments:

(a) interesting

and

(b) accurate

Quite a rarity!

[DJL]

Originally Posted by codprawn

Well obviously the judge is as wrong as I am!!!

Seriously though the MAIn point I think people are missing is the term "MERCHANT" which basically means commercial.

For a ship to come under the merchant shipping act it has to be registered as a commercial ship and comply with all the regs - would be funny seeing a jetski flying the red duster!!!

As Neil said there is no requirement for the ship to be commercial. Many of the Merchant Shipping Regulations have specific definitions of leisure vessels - such as the one that defines which sections of SOLAS V pleasure users are required to comply with.

Section 58(1) of the Merchant Shipping Act 1995 states that the section applies "to the master of, or any seaman employed in, a ship which" is UK registered or in UK waters. The definition of master "includes every person (except a pilot) having command or charge of a ship". So if a PWC is defined as a ship ("ship includes every description of vessel used in navigation"), then Mr Goodwin could be prosecuted under 58(2).

The more of these cases that fail, where people of obviously acted irresponsibly, will just lead to more legislation for us boaters. Let’s hope they amend it to include PWCs - as I said I don't think it’s particularly unreasonable for people at sea, whatever craft they are on, to be responsible for avoiding injuring/killing other people. Otherwise we are going to be one step closer to having compulsory training etc...

[codprawn]

Originally Posted by Polwart

This is NOT true. The definition of a ship does not require it to be registerred or opperated commercially.

Under the MERCHANT shipping act it does!!!

Which is why the judge made his ruling.

"LORD PHILIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that the relevant provisions, as the title "Merchant Shipping" suggested, were primarily aimed at shipping as a trade or business"

[codprawn]

Originally Posted by DJL

Section 58(1) of the Merchant Shipping Act 1995 states that the section applies "to the master of, or any seaman employed in, a ship which" is UK registered or in UK waters. The definition of master "includes every person (except a pilot) having command or charge of a ship". So if a PWC is defined as a ship ("ship includes every description of vessel used in navigation"), then Mr Goodwin could be prosecuted under 58(2).

EMPLOYED in being the key word I believe.

[Simon B]

This is an interesting thread, PWCs appear to be viewed differently possibly because they are relatively new. Essentially it is a craft capable of taking 1-3 people at high speeds over water. Have any endurance records been set yet? Before I google it I'd guess they had so with a little preparation they can and have undergone a voyage from A to B.

OK so if a solo yachtsman had smashed somones head in what would he get clobbered with? Whatever it is it should in the light of the above be similar with a PWC. As said previously by some of the lovers of a friend of mine size deosnt matter!

[MikeCC]

I'm not a big fan of red tape, but it really does pee me off when people wriggle out on technicalites.

I think the Court of Appeal interpretation of the section concerned is wrong.

The Act says "the master of, or any seaman employed in". As in all legal texts, the position of that comma is critical. I believe it actually means that the master does NOT have to be employed, he just is the master of the vessel.

In addition, s24 states "(1) With the exceptions specified in subsection (2) below, this Part applies only to ships which are sea-going ships and masters and seamen employed in sea-going ships.
(2) Those exceptions are sections 43, 46 to 52, 54, 55, 58, 61 to 68 and 69."

In addition, in the definitions it gives - "master" includes every person (except a pilot) having command or charge of a ship and, in relation to a fishing vessel, means the skipper;"

Note also that Keiron French was prosecuted under the same section for his unfortunate collision with an unlit buoy.

Although the judge has used the reduction argument (ie you wouldn't use the Act for a pedalo accident), a jet ski is a significant vessel. Otherwise it becomes a bit like saying the Road Traffic Act applies to HGVs but not motorbikes.

As regards sea-going, I recall someone posting here to say they could go cross-channel on their jetski.

Looks like his lawyer just did a bit of bedtime reading and thought he stood a chance of some more fees if he got a result (no doubt out of MCA funds - ie the public purse)

Overall though, as the ruling points out, it might have been easier just to prosecute under COLREGS which would have carried the same penalty.

Ultimately, I don't think anyone should be able to escape their responsibilities with regard to safety and collisions.

[codprawn]

Again it is a MERCHANT shipping act which applies to commercial vessels - if it was a coded PWC used for charter fair enough.

The ship has to be a registered vessel. it must also fly the Red Ensign!!!

[Poly]

Originally Posted by codprawn

Again it is a MERCHANT shipping act which applies to commercial vessels - if it was a coded PWC used for charter fair enough.

The ship has to be a registered vessel. it must also fly the Red Ensign!!!

Please read the act as linked to in my previous email. Whilst the title of the act may suggest that there is a need for a vessel to be used in pursuit of a trade, there is no such requirement. It is quite simply FACTUALLY INACCURATE to continue claiming that the merchant shipping act only applies to coded/commercial vessels. It applies to ANY SHIP (defined several times above) BEING USED IN UK WATERS. Almost certainly most people on here with RIBs are included. It does NOT only apply to registerred vessels.

The legal argument is about what constitutes a SHIP not about whither the Ship is/was being used commercially.

NEIL

[Steve Waters]

Guys, as much as I admire you all ! (and believe me I do!) : all the argument will be flawed foir eternitry if you base it in English Law. I have worked on that side for 18 years! and believe me there is nothing which makes sense. Manslaughter!? Don't even go there, it is so very complicated that the Judge never understands it sufficiently well to explain it to the jury.
We need to exhort the horrendous law of the land to the sea: a mechnically propelled vehicle (will do nicely) and LICENCE its use!
I know it stinks but I did my RYA2 because I cared and it should be the way forward. Why should you be allowed to travel on the sea in something with an engine when you can't on land?>
I know you can chuck push bikes into the equation but you struggle with them on land so surfboards are always go to be a problem. I have seen people get away with the equivilant to murder on land so you are certainly not going to be able to avoid it at sea. Common sense will NEVER prevail! What you have to do is present facts in a way that a jury will belive you are right: if it is overturned later by Judges or a court of appeal it really doesn't count for much

It's the people who count!!#
H2O (matters!)

[Rogue Wave]

Originally Posted by Steve Waters

We need to exhort the horrendous law of the land to the sea: a mechnically propelled vehicle (will do nicely) and LICENCE its use!
I know it stinks but I did my RYA2 because I cared and it should be the way forward. Why should you be allowed to travel on the sea in something with an engine when you can't on land?>
It's the people who count!!#
H2O (matters!)

I'll buy a ticket for that train of thought and thats speaking as a water user and not a trainer

[jwalker]

Originally Posted by Steve Waters

...We need to exhort the horrendous law of the land to the sea: a mechnically propelled vehicle (will do nicely) and LICENCE its use!

Pray, tell me what that will achieve.

I know it stinks but I did my RYA2 because I cared and it should be the way forward.

I did my advanced certificate because I cared...and your point is?

Why should you be allowed to travel on the sea in something with an engine when you can't on land?>

Why should you have to have a licence for a land vehicle when you don't for the sea?

Common sense will NEVER prevail!

I believe it mostly does.

For me, the freedom of the sea is the joy of using it. More legislation, I can live without.

If you are a law person and use arguments like this, no wonder it's a mess.

[Richard B]

Steve, your arguments are some of the most pragmatic, balanced and realistic as I've ever seen.

In an ideal world, the responsible user of powered craft has nothing to fear from licensing, only the irresponsible will suffer. Unfortunately, a sensible implementation would be unlikely!

[jwalker]

[Richard B]

I don't think that the current situation, where irresponsible skippers get away with either lenient sentences, or winning appeals and making an ass of the law, are at all funny.

Will you be laughing at the next death?

[jwalker]

Ooooowww!

I can see how you relate to Steve's logic.

[MikeCC]

Originally Posted by codprawn

Again it is a MERCHANT shipping act which applies to commercial vessels - if it was a coded PWC used for charter fair enough.

The ship has to be a registered vessel. it must also fly the Red Ensign!!!

Within UK waters, a "small ship" does not have to be registered and does not have to fly the Red Ensign.

Where does it say in the Act that it MUST be a commercial ship for the Act to apply?

And what difference does it make if the PWC is chartered? The person in charge is still 'master' of the ship.

As Neil (Polwart) says, the Act can be applied to any ship in UK waters.

Perhaps a simple notice on every slipway stating responsibilities and penalties would be a good start.

[codprawn]

Originally Posted by MikeCC

Within UK waters, a "small ship" does not have to be registered and does not have to fly the Red Ensign.

Where does it say in the Act that it MUST be a commercial ship for the Act to apply?

And what difference does it make if the PWC is chartered? The person in charge is still 'master' of the ship.

As Neil (Polwart) says, the Act can be applied to any ship in UK waters.

Perhaps a simple notice on every slipway stating responsibilities and penalties would be a good start.

This is yet another example of a law that has many different ways of interprating it - hence the bloke got off!!!

As the judge said


"LORD PHILIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that the relevant provisions, as the title "Merchant Shipping" suggested, were primarily aimed at shipping as a trade or business"

I will grant you that it MAY be possible to say that the merchant shipping act does not only apply to merchant ships - but that is down to the vague way in which it is laid out!!!

Often it is acknowledged that laws are never perfect and they take into account the original meaning or intent. Looking at the rest of the Merchant shipping act it clearly applies to MERCHANT vessels.

By declaring a PWC a ship you also have to declare a surfboard or a rubber dinghy as a ship which as the judge quite rightly said is ludicrous.

It seems to me that the act would apply to a registered vessel but of course registrationis NOT compulsory for small craft - why I wonder? Could it be they aren't really ships???

[Jackwabbit]

Originally Posted by Simon B

This is an interesting thread, PWCs appear to be viewed differently possibly because they are relatively new. Essentially it is a craft capable of taking 1-3 people at high speeds over water. Have any endurance records been set yet?

So a PWC is a Toy as they do not go on "Voyages” & as for endurance records I think this bloke takes a lot of beating!

Graham "G-Force" Hicks

Having meat the guy he is unbelievable! This 40-year-old, from Peterborough, became the first person to make a return jetski trip between Land's End and the Isles of Scilly in 2001, he also completed the fastest journey from England to Holland and back on a Jet Ski.

Now it they are not "Voyages" I don't know what is!

[MikeH]

Sorry if this has come up before but the guy was charged under the wrong section. They charged him under section 58 which is about the duties of the master of a ship..

Here is the full appeal

http://www.bailii.org/ew/cases/EWCA/Crim/2005/3184.html

In section 45 the Appeal judge says

It is clearly arguable that this extension of the ambit of the relevant section embraces breach of duty in relation to the navigation of a vessel, and Mr Teare so submitted. This is not, however, an issue that we have to resolve having regard to our finding that section 58 had no application on the facts of this case. We would simply observe that failure to comply with the International Regulations for the Prevention of Collisions at Sea is made an offence by the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 and that the offence carries the same maximum penalty as section 58. Where allegations are made of conduct which infringes the Collision Regulations it would seem simpler and more appropriate to charge this offence rather than to allege breach of section 58.

If he had been charged with failure to comply with Colregs he would have pleaded guilty and everyone would have understood what the position is. Now we'll have to wait for another similar incident before this can be established in everyone's minds.

[Poly]

Originally Posted by MikeH

Here is the full appeal

http://www.bailii.org/ew/cases/EWCA/Crim/2005/3184.html

In section 45 the Appeal judge says

Thanks for that - very interesting. I am currently of the opinion that the appeal judge was correct. However I am also of the opinion that the defendant was in the wrong and should have been prosecuted - just not under that section of that act.