Boat Buddies. Illegal Charters or not?

[single]

I had a light aircraft for some 15 years, and this type of "story" would come up in the aviation press regularly.

The bottom line was that as long as it was cost share it was not a commercial operation. Cost share mean that if there were 4 seats occupied then each paid a quarter, including the pilot. Make £1 and it is hire and reward. The general view was also that it was the direct cost of the trip that was split ( fuel, oil, landing fees) not maintenance, hangarage etc - which would mean the trip was generating a profit.

I used to fly Scouts on Sunday mornings, and had to pay 25% of the aircraft cost to remain legal.

My logic in recounting this is that if the highly zealous and regulated aviation world things this is ok then I am sure that it will pass muster in boating terms!

The aviation world also conducts ramp checks quite regularly, especially at things like horse racing meetings, so there is also a level of enforcement.

2nd that and i would treat the boating deal the same way.

 

[alant]

Copied from www.worldseafishing.com, but I would also like the opinions from members on here, as it has been suggested that there may be a few more legal minds on this site

I have been asked to give my views on this matter as part of a magazine feature, which will publish all sides of the matter. There will also be views from a Charter Skipper and the MCA, and this could form the basis of discussions with the MCA to make the law / regulations clearer to understand for all.
Please keep this civil and do not use it to argue with, or insult someone who may have a different point of view, as I hope to get input from charter skippers, boat owners, and boat anglers who do not have their own boat but may go out with mates, on charters or with boat owners looking for crew for the day in exchange for a contribution towards fuel costs.

When I bought my latest boat over 6 years ago, I decided I would like to find guys that would be able to regularly accompany me for the day for both inshore and offshore trips, whenever I wanted to go. My personal circle of friends did not include enough anglers that were able to go when I wanted to go and I decided to ask the members of WSF if I occasionally needed one or two people to make up the crew for a trip.
There were several benefits.

1) Two or three other people on the boat meant that if I were to have an accident or health problem then there would be somebody able to get help or take the boat back in.

2) An average wrecking trip could easily cost me £100+ in fuel, and a couple of others contributing towards this would mean that I could possibly go out more often (although the British weather has put paid to that!). It would be rare that anyone coming out with me would even contribute an equal share with me of the fuel cost (it would usually be less), but any contribution would help. I have only ever been interested in a contribution towards the days running costs, and not the overall cost of running my boat. If that were case then every time anyone came out with me they would probably need to give me about £300! Each person would be responsible for providing their own bait or lures, although as anyone that has come fishing with me will testify I usually end up lending or giving quite a few of my own away.

3) It would introduce new people to boat fishing that probably would not want to go out on a charter for the first time for fear of showing themselves up, by either being ill or not having a clue what to do. With only 3 or 4 of us on the boat we could all help any newbie, and if someone was really ill then they could be taken back to shore without affecting ten or more others. Hopefully these new boat anglers would enjoy the experience so much that they would then become regular buddies that I could call on to help make up a crew at short notice. I can not remember a single person so far that has said that they never want to go boat fishing again, and most are now regulars on charter boats, so it seems to have worked!

4) Fishing on your own is not only dangerous but for most of us having one or two others to chat to makes the day far more enjoyable, as well the fact that sharing advice and methods helps to improve your own success rate.

5) Teaching others what I have learned from over 40 years of boat angling and boat handling would hopefully give them a better idea of whether they would have the skills needed to skipper their own boat, before just buying one and setting to sea with no experience. It is impossible to learn what you need to know in a day or two of classroom training and a few hours on a 'school' boat. I have also shown numerous other boat anglers who already have their own boats how I plot, and anchor wrecks and other marks safely and effectively. This improves their own experience and success.

Over the past six years although only probably averaging a dozen trips a year out on my own boat I have introduced many people to boat angling that had never done it before, hopefully helped quite a few existing boat owners to make their own fishing more productive, made dozens of new friends, raised a few thousand pounds for various charities (usually the RNLI), managed to find new PB's and firsts for almost everyone that has come out on Sea Mistress, and enjoyed myself immensely while doing so. The small amount contributed by those that have fished with me (usually £10-35) each has obviously helped with the fuel cost, but as anyone who has their own boat will know, that is a drop in the ocean compared to the true cost of owning the boat. I estimate that my boat has cost me personally around £700 per trip when storage, maintenance, electronics and the cost of buying it are taken into consideration.
18 Months ago I started the Boat Buddies thread on here so that all those that wanted to do something similar could do so. To date there have been around 100 boat owners that have made use of this, and although feedback is limited I hope that most have those have now found people that they can call friends that they fish with regularly. The fact that some of these will help towards the cost of the day financially or in other ways, maybe helping with maintenance, storage etc is irrelevant. The main thing is that these people will hopefully all be enjoying their boating more than ever now.
However I know that there are some people out there that are a danger to themselves, never mind others, and I would always urge anyone that has any reservations about crewing for someone with dubious boat handling skills, a poorly maintained boat or no safety equipment not to go with them. Anyone asking for payment that is clearly above what could be considered a contribution should also be ignored. There is no substitute for a properly qualified skipper, and coded boat, but I believe there is also a place for responsible boat owners to share their day with others for a little help with the costs.
Please discuss

This might work, if you form a Limited Company Club (yacht Clubs have gone this route) - best to check with the MCA first.

"(bb) 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;"

 

[jfm]

This might work, if you form a Limited Company Club - best to check with the MCA first.

"(bb) 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;"

Beware. Setting up and running the company isn't free of cost/hassle/other consequences. Then the guys who rock up for a £30 fishing trip are not going to be employees or officers, so you've achieved nothing. Please dont think you can knock up an employment contract for the afternoon on your laptop becuase there is plenty of caselaw (and you'll make some more, if you're caught) saying sham employments are not employments

And finally please don't think checking with MCA is a perfect solution. Even if they give you an assurance you're happy with it doesn't mean they will or are required to stick to it. There are principles/precedents on how they can/can't renege on an assurance previously given (Nadarajah, N+E Devon ex p Coughlan, MFK Underwiting, Matrix Securities for folks who want to research) and there are protocols for how you write to a public body to get an assurance that is binding, following esp Matrix Securities. If you fail to follow those protocols you will not have a binding enough ruling. Tis complex stuff.

What you need is a solution that you know is incredibly unlikley to be found wrong, and that stands on its own merits without needing any letter from MCA. That means (a) befriend the person before the trip, which means evidenced social exchange before leaving the dock, or (b) code the boat. And recognise that the insurance thing is different, so that a charter is still a charter for insurance purposes even if it isn't for MCA and shipping law purposes.

 

[Doug_Stormforce]

If you advertise for passengers and when a stranger replies you take them boating for a small fee you are a charter business and the strangers you take boating are customers.

There is no grey area here.

Friendship is a two way thing, if you simply describe your customers as friends to circumvent the law you may be in trouble when one of your "new friends" is not happy with the service he paid for.

 

[MapisM]

If you advertise for passengers and when a stranger replies you take them boating for a small fee you are a charter business and the strangers you take boating are customers.

There is no grey area here.

Can't disagree on that.
Not to mention that you would become also a tax dodger, given your assumptions, 'cause those fees should go straight as a taxable income in your charter company P&L - even if possibly offset by other deductible costs, of course.

That said, grey areas can and do exist, if you think about it.

For instance, if Mr.Boatlover offers a cruise on his boat to a group of friends, sharing just the live costs between all participants (himself included), by no stretch of the imagination that could be considered a business.
And not just because it would be a structurally poor business, being unable to cover any maintenance, depreciation, etc. - not to mention making any profit.
It's also that all the participants know perfectly that they are not buying a service, and they are possibly contributing somehow to the cruise themselves, either by cooking, cleaning, or even being temporarily in command of the boat.
As you would expect between friends.
Now, whether these folks have been friends for 20 years, or met just a few weeks before, or just got in contact through a boating forum, does that really matter?

Otoh, as I said I agree that advertising for passengers and take strangers boating for a fee can hardly be considered anything else than a charter business.

Bottom line, as per my first post in this thread: if the OP felt he should ask, then the answer to his question is most likely yes.
All imho, as always.

 

[PaulGooch]

If you advertise for passengers and when a stranger replies you take them boating for a small fee you are a charter business and the strangers you take boating are customers.

There is no grey area here.

Friendship is a two way thing, if you simply describe your customers as friends to circumvent the law you may be in trouble when one of your "new friends" is not happy with the service he paid for.

Whilst i get what you're saying Doug, i'm not sure i'd agree that a post on a forum where you're a regular constitutes an "advertisement for passengers".

If i was going fishing at the weekend and put a post on here inviting anyone to join me, i wouldn't consider myself a charter operator. I'd just be taking a couple of forum mates for a day out. I'm sure many, many people from here consider one another friends, although many have never met.

We have work mates, business associates, Friday night pub mates and neighbours. Maybe none of those are close personal friends, but it'd be hard to see where anyone would be chartering if they offered them a day out.

Someone else asked and never did get a reply, how about the websites that advertise for crew ? They will be taking total strangers with them, never so much as exchanged a forum post. Those people will be paying an equal share of the trips costs. How is it they are not considered charters ?

 

[benjenbav]

If you advertise for passengers and when a stranger replies you take them boating for a small fee you are a charter business and the strangers you take boating are customers.

There is no grey area here.

Friendship is a two way thing, if you simply describe your customers as friends to circumvent the law you may be in trouble when one of your "new friends" is not happy with the service he paid for.

Doug - You kinda took the words out of my mouth! I think defining friendships is difficult to do but we all know it when we see it.

Example. I knock about on here a bit and have gotten to know and like a few other forumites, some of whom I've met and some I haven't.

Late one night I post that tomorrow I'm going to the Folly with my brother-in-law for a few beers and for reasons based on the dynamics of late night social networking a cunning plan is hatched whereby, let's say, epervier, jimmy_the_builder and moodynick are all stood on the dock at 7am the next morning looking thirsty. Off we go and sadly the trip ends with us firmly wedged on the Bramble Bank and an insurance claim.

The insurers decide to get jiggy and save themselves a bit of cash by saying that it was an illegal charter.

The MCA decides to prosecute.

I say, don't be daft it's just me and a bunch of mates off for a jolly. Better navigators than I have hit the Bramble Bank and better navigators than I will hit it again in the future.

So let's look at the facts as they relate to friendships:

#1 - my b-i-l. Well, I've known him for nearly thirty years; whether I like him is another matter (joke).

#2 - moodynick - I bump into him regularly and we often chat.

#3 - jtb. I've met him and his delightful other half and had helpful advice on sourcing odd sized nuts and bolts.

#4 - epervier. Never met him. But known him on this forum for years. I know his boat and we have swapped comments about similar boats we have each owned in the past.

No group of 12 good men and true is going to say this is not, as I have argued, a group of friends out for a party. If all four have chipped in to the price of fuel, lunch, beer or not it isn't going to change anything.

Contrast the position where the four crew are people who have answered an ad and have paid the cost of the trip.

I think if we imagine ourselves as the jury we know what we'd think.



With apologies to all of the above forumites whose names have been taken in vain.

 

[MapisM]

QED, benjenbav.
Did you ever consider asking on the forum whether your trip to the Folly was legal or not? 'Course you didn't.
I bet you'd have been ROTFL, if anyone suggested you to do so...

 

[cascars]

Bottom line, as per my first post in this thread: if the OP felt he should ask, then the answer to his question is most likely yes.
All imho, as always.

I would like to make my position as the OP clear on this. If I am looking for one or two others to come out on my boat, and keep me company / give someone else the chance to spend the day fishing, then I will post on the forum that 'I am fishing this Friday and have room for a couple'. No mention of money at all, but I have never not been offered a contribution towards fuel at the end of the day. Neither have I have ever made it a condition of accompanying me for the day.
This situation has arisen after I offered spaces on my boat to raise money for a cancer charity (which raised £300 btw) and a local charter skipper then said that I was an illegal charter boat because I did this. I also occasionally take other forum members out and they may offer a contribution, (not always accepted) who I may not have met before. Usually they will be people who have been out several times with me though and this is not an issue.
His argument is that by letting people know I would be grateful for some company that I am 'Advertising', and that if I have not met them before (however well I may know them through the forum) that they are not friends and that also makes me a 'Charter boat'.

 

[PaulGooch]

Paul, you got really nasty toward me yesterday because you didnt like what you read.

My posts were genuine.

I deleted them to keep you happy and didnt get any thanks just more abuse.

All the replies are following a common direction but you are only reading what you believe suits you (you need to read them all again).

I deleted my posts to keep you happy but other posters have repeated the same message anyway, and not just once.

Just because I deleted my posts doesnt mean that they were not accurate.

In all honesty I had no idea that you were trying to do 'mates charters' or I would have sent you pms in order to keep you on the right tracks and not just deleted the posts (which was an easy way out).

I suggest you read all the above posts again or be ready to spend a huge sum on legal advice if things go wrong.

As long as no one dies the legal advice will be to pay the fine and damages which will be set lower than the potential legal fees of proving you are not breaking the law/insurance clause.

Seriously, you need to pay more attention. All you deleted was some of your posts, which bore no relationship to what i had said. You conveniently left all of my replies to you, which now look entirely out of context. All i said was, the RYA recommended not taking any contribution at the beginning of the day, but to do it at the end.

Quite why you've posted this lasted rant escapes me. Where, in anything i have ever posted on this thread, any other thread or any other forum, have you seen anything that suggests i'm doing "mates charters".

Serious question, please point me to those posts.

 

[PaulGooch]

If you wanted more deleting you should have asked yesterday.

I have deleted the rest, are you happy now ?
Frankly the content of my posts had serious value and would have been better left for all to see and you should have put me on ignore if you didnt like them.

as to out of context , I feel your comments and the way you [presented them were well and truly out of context ( i accept out of character for you hence I attempted to keep the peace but you continue to make it hard work.)

its crazy to distort the thread like this, feel free to send me a pm if you want anything else deleting.

BTW

You mentioned something about me agreeing to delete posts as if it was a two way agreement .

Not accurate, I said I would delete posts, you didnt offer or give anything in return except further abuse.

I deleted all of my posts yesterday, although i didn't ask for any deletions then or at any time.

Anyway, back to the thread. Would you kindly answer my question above, in red.

 

[PaulGooch]

I'm waiting for two little magic words first Paul

Give up ?

That's the best two words i can think of without having to get around the swear filter.

Your posts to me defy logic. Post #17 resulted in two lengthy posts about how my insurance would be void. You last post accuses me of operation "mates charters". I don't do any charters, don't advertise anywhere for anyone to pay to come on my boat, hell, i haven't even posted on a forum asking for paying passengers. Actually, i haven't posted on a forum asking for passengers at all.

Read the thread in question at WSF too if you like. I've never, ever, posted in the WSF "boat buddies" forum for people to join me on my boat.

I cannot work out how any of the stuff you keep posting to me relates to anything i've said or done. Prior to today, my only comment with regard to the OP's question was the tiny comment in post #17.

Perhaps an alternative two words could be "plot" and "lost" ?

 

[cascars]

I am quite relieved to see that it is not just on WSF that threads can degenerate into dummy spitting contests. Some of the messages I get have left me thinking that WSF is the only forum in the world that suffers this.
Come on guys, no need to get upset at one another, this one of those threads that can solicit completely opposing views with both sides thinking they are right.
I am grateful for all input so far, but can assure everyone that I know for a fact that Paul has never posted asking for crew, and in our own discussions has always made it clear that it is not something he would do anyway. His boat, his costs is the way he has always said it to me.

 

[MapisM]

I would like to make my position as the OP clear on this. If I am looking for one or two others to come out on my boat, and keep me company / give someone else the chance to spend the day fishing, then I will post on the forum that 'I am fishing this Friday and have room for a couple'. No mention of money at all, but I have never not been offered a contribution towards fuel at the end of the day. Neither have I have ever made it a condition of accompanying me for the day.
This situation has arisen after I offered spaces on my boat to raise money for a cancer charity (which raised £300 btw) and a local charter skipper then said that I was an illegal charter boat because I did this. I also occasionally take other forum members out and they may offer a contribution, (not always accepted) who I may not have met before. Usually they will be people who have been out several times with me though and this is not an issue.
His argument is that by letting people know I would be grateful for some company that I am 'Advertising', and that if I have not met them before (however well I may know them through the forum) that they are not friends and that also makes me a 'Charter boat'.

That's a tad different from what I previously understood.
All considered, the situation you're now describing is one of those I'd rank in the "not worth asking" arena, if you see what I mean...

 

[Tranona]

That's a tad different from what I previously understood.
All considered, the situation you're now describing is one of those I'd rank in the "not worth asking" arena, if you see what I mean...

We had exactly the same issue in our club where the rules say that any member who uses his boat commercially cannot keep it in the club marina. Came to a head with one high profile member who was agent for the boat he owned and took prospective customers out as well as taking paying customers out racing. His argument included the fact that he raised money for charity doing these activities. The debate was about where you draw the line as many club boats are syndicate owned or operated on a contribution to cost basis. The upshot was that the line was drawn along much the same as the definitions here - friend and family contributing to costs OK, but as soon there was financial gain or non friends involved, even for charity it was No. He no longer keeps his boat in the marina.

 

[jfm]

No group of 12 good men and true is going to say this is not, as I have argued, a group of friends out for a party. If all four have chipped in to the price of fuel, lunch, beer or not it isn't going to change anything.

BJB, all agreed. A few further thoughts:

1. I cannot think of any other bit of UK statute/regs where the occurence or not of a criminal offence turns on the meaning of the word "friend". Can you? Pretty slapdash lawmaking, this.

2. In the modern world "friend" would be given a modern definition by a court, and in your example the case closest to the edge, epervier, would be found to be a friend by 12 good men, imho.

3. Scuse my pedantry but the two sentences juxtaposed in your paragraph above deal with two completely separate legal hurdles. The payment or not of money has no bearing on whether someone is a friend, but folks could read your para above maybe as implying there could be a link. The question of freind is freestanding and logically can only be determined by enquiring about the state of mind of the two people involved and looking at evidence of prior social interaction. Sorry for telling you about egg sucking etc.

4. In analysing this this you must, imho, take into account the trigger happiness of MCA. They have a group called "Enforcement Unit" and you can imagine they are not bonussed on applying their discretion NOT to prosecute cases. I am aware of someone (can't recall his name just now) on the receiving end of an attacking letter from them seeking to start a prosecution against a certain Fairline that might have been over 20m and hence required, with some exceptions, to use the shipping lanes. The Fairline came around Ramsgate/Dover heading west to Solent, and went offshore to the shipping lane, but in MCA's view didn't do so with enough southerlyness in its course and approached at too acute an angle. Putting it another way, as I smirkingly think of it, they wanted the Fairline to approach the lane at a more, er, obtuse angle. Now their letter was not mere telling off. They were clearly using their powers to get evidence to prosecute. Needless to say they were outmanoeuvred in a manner akin to taking candy from a baby and the case had to be dropped, but the point of my story is that they seem trigger-happy and willing to prosecute trivial cases, which it is unpleasant to be on the receiving end of. So with legal questions on the edge, it makes sense to factor this in and beware their trigger happiness.

 

[benjenbav]

I cannot think of any other bit of UK statute/regs where the occurence or not of a criminal offence turns on the meaning of the word "friend". Can you? Pretty slapdash lawmaking, this.

Off the top of my head the nearest parallel I can think of is the identification of charitable purposes in the Preamble to the Charitable Uses Act 1601.

As you will know: a fine bit of definitioning (provided your criterion is "something which lawyers can get well paid to argue about")

Scuse my pedantry but the two sentences juxtaposed in your paragraph above deal with two completely separate legal hurdles. The payment or not of money has no bearing on whether someone is a friend, but folks could read your para above maybe as implying there could be a link. The question of freind is freestanding and logically can only be determined by enquiring about the state of mind of the two people involved and looking at evidence of prior social interaction. Sorry for telling you about egg sucking etc.

Ah yes. Slightly sore point for me. One of the only times I have had a real disagreement with anyone on here. Before I looked at all at skippering and chartering requirements I made a vague-ish offer to help with a group taking disabled kids whom I didn't know out on boats. When I looked into the detail, I couldn't get comfortable that it would be covered by insurance (my boat isn't coded) and so I declined. I was told that I was wrong to be concerned because (a) no money was changing hands and (b) custom and practice. We agreed to differ in the end. I felt that I was being a bit of a louse by not taking a chance; but that I simply couldn't do it.

In analysing this this you must, imho, take into account the trigger happiness of MCA... seeking to start a prosecution against a certain Fairline that might have been over 20m and hence required, with some exceptions, to use the shipping lanes.

I can't help thinking the MCA should shoot first and ask questions later. It's the only language skippers like that understand.

 

[alant]

Beware. Setting up and running the company isn't free of cost/hassle/other consequences. Then the guys who rock up for a £30 fishing trip are not going to be employees or officers, so you've achieved nothing. Please dont think you can knock up an employment contract for the afternoon on your laptop becuase there is plenty of caselaw (and you'll make some more, if you're caught) saying sham employments are not employments

And finally please don't think checking with MCA is a perfect solution. Even if they give you an assurance you're happy with it doesn't mean they will or are required to stick to it. There are principles/precedents on how they can/can't renege on an assurance previously given (Nadarajah, N+E Devon ex p Coughlan, MFK Underwiting, Matrix Securities for folks who want to research) and there are protocols for how you write to a public body to get an assurance that is binding, following esp Matrix Securities. If you fail to follow those protocols you will not have a binding enough ruling. Tis complex stuff.

What you need is a solution that you know is incredibly unlikley to be found wrong, and that stands on its own merits without needing any letter from MCA. That means (a) befriend the person before the trip, which means evidenced social exchange before leaving the dock, or (b) code the boat. And recognise that the insurance thing is different, so that a charter is still a charter for insurance purposes even if it isn't for MCA and shipping law purposes.

"That means (a) befriend the person before the trip, which means evidenced social exchange before leaving the dock,"

Which, in real terms, means what exactly?

 

[jfm]

"That means (a) befriend the person before the trip, which means evidenced social exchange before leaving the dock,"

Which, in real terms, means what exactly?

Lots of thing would meet the requirements. It's not practical to list them, not is it sensible to be very close to the edge (for the "trigger happy" reasons mentioned above). As someone wrote above, you know it (friendship) when you see it

 

[jfm]

Off the top of my head the nearest parallel I can think of is the identification of charitable purposes in the Preamble to the Charitable Uses Act 1601.

As you will know: a fine bit of definitioning (provided your criterion is "something which lawyers can get well paid to argue about")



Ah yes. Slightly sore point for me. One of the only times I have had a real disagreement with anyone on here. Before I looked at all at skippering and chartering requirements I made a vague-ish offer to help with a group taking disabled kids whom I didn't know out on boats. When I looked into the detail, I couldn't get comfortable that it would be covered by insurance (my boat isn't coded) and so I declined. I was told that I was wrong to be concerned because (a) no money was changing hands and (b) custom and practice. We agreed to differ in the end. I felt that I was being a bit of a louse by not taking a chance; but that I simply couldn't do it.



I can't help thinking the MCA should shoot first and ask questions later. It's the only language skippers like that understand.

Tricky stuff. I can see your point on the disabled children outing and would have done same as you. Among the declarations things folks connected with fund management have to sign (hopefully with a "no" tick) from time to time is the question "Has any public authority ever formally asserted that you have committed a criminal act?". So even a run-in with MCA's prosecuting department isn't good for business

Er, "shoot first". Have you actually been advising MCA enforcement unit? They seem to be following your suggestions Top marks on 1601 statute too