Cheeki Rafiki deaths: Yacht firm boss guilty

[JumbleDuck]

But then again, if I loaned a mate my boat I wouldn't be too happy if he didn't bring it back but went on a walking holiday in the Lake District instead.

That's a wee bit different from two of your employees supposedly taking a holiday to do take a trip which was of commercial benefit to you in a boat you manage.

 

[Fr J Hackett]

http://www.legislation.gov.uk/uksi/1998/2771/regulation/2/made

Would you care to indicate why you think it was a for pleasure voyage then.

 

[Tranona]

it seems pretty obvious judging by this thread that different people will interpret this in different ways

That is the nature of our law. It is interpreted with regards to the facts before us, bearing in mind any previous interpretations by the courts. The problem with precedent is that it is only valid if the facts are essentially the same.

So, as I pointed out earlier there seem to be many situations where the facts are essentially the same - that is charter boats undertaking ocean passages between charters, but without paying charterers on board. So, one assumes if a prosecution was brought against those operators they would be found guilty, following this precedent. However the court is free to hear any argument and another court may well find differently, giving reasons for not following the precedent.

So, not surprising that there are different interpretations here, just as there is likely to be amongst proper lawyers, even if given the same facts.

 

[steveej]

Would you care to indicate why you think it was a for pleasure voyage then.

one interpretation of it would be it is a pleasure vessel provided it is being used for sport or pleasure and you are not taking paying passengers.

 

[JumbleDuck]

Have you read MGN 280 on what constitutes a pleasure vessel?

I have, and for all your vehemence the MCA, CPS, judge and jury all agreed that it didn't apply in this case.

 

[JumbleDuck]

This is exactly the problem.

I take paying guests on my coded yacht on a trip to a harbour 20 miles away. I leave the yacht there for a few weeks.

We get some nice weather so some friends ask if they can come with me to sail the yacht back to it's home harbour because I'll have some more paying guests at some stage who will leave from that harbour?

Commercial trip?

Why could your next lot of customers not travel twenty miles to start the trip?

 

[Fr J Hackett]

one interpretation of it would be it is a pleasure vessel provided it is being used for sport or pleasure and you are not taking paying passengers.

Which is trumped when the vessel is being relocated for financial reasons, which in this case it was.

 

[steveej]

That is the nature of our law. It is interpreted with regards to the facts before us, bearing in mind any previous interpretations by the courts. The problem with precedent is that it is only valid if the facts are essentially the same.

So, as I pointed out earlier there seem to be many situations where the facts are essentially the same - that is charter boats undertaking ocean passages between charters, but without paying charterers on board. So, one assumes if a prosecution was brought against those operators they would be found guilty, following this precedent. However the court is free to hear any argument and another court may well find differently, giving reasons for not following the precedent.

So, not surprising that there are different interpretations here, just as there is likely to be amongst proper lawyers, even if given the same facts.

Agreed, it seems in this case, the MCA have interpreted it one way and DI the other. The business I work in sees the main governmental organization responsible for compliance often takes a different view from big business. Just because they're responsible for compliance doesn't automatically mean their interpretation is right, and when there is money at stake this tends to see the big businesses bringing out their big lawyers in a courtroom or a backdoor settlement.

 

[steveej]

Which is trumped when the vessel is being relocated for financial reasons, which in this case it was.

and where does it say that in the legislation then?

 

[JumbleDuck]

It was also being used for pleasure by the four blokes on it. They didn't give a to55 where it was being delivered to, they were just out for fun and adventure.

"Enjoying your work" does not exempt your employer from following the rules.

From their actions and lack of actions it seems the RYA and MCA had some doubt about this ...

You clearly think you have discovered a smoking gun, but since the MCA's actions included "initiating a prosecution leading to a conviction", I think you are misleading yourself.

and I can see why. It's possible (but far less likely IMHO) that if the people on the boat are using it exclusively for their sport and leisure, it doesn't matter if someone else is getting commercial benifit at a later date from the trip. It's still a pleasure trip.

If you are going to claim - did Mr Inness claim? - that two employees of the company took holiday time to do exactly the same sort of work as they did for the company, in a boat managed by the company, in a way which directly benefited the company you are going to need some pretty convincing proof.

Either way, Jumbleduck's question doesn't help us!

Which is why my question matters. If the two employees had said "We'd like a week off after the Antigua regatta" and the company had said "Sure, no problem. Why not borrow Cheeky Rafiki - she's not doing anything for a bit." then they could certainly have had a jolly for sport and pleasure. Do you have any evidence to support your claim that they were not asked, told or directed to make the trip as part of their employment?

 

[JumbleDuck]

it seems pretty obvious judging by this thread that different people will interpret this in different ways

At the moment there are only really two ways: yours and the MCA's/CPS's/judge's/jury's.

 

[JumbleDuck]

The crew were not being paid;

How do you know?

they were undertaking the trip for fun - for "sporting and pleasure purposes".

And the fact that they moved a boat from one area of operation to another for their employer. the boat's operator, was just a happy coincidence?

 

[JumbleDuck]

It never occured to me (or almost anyone else in this thread) that the MCA were uncertain until you pointed out that they wanted to wait for this case before risking prosecutions.

It appears that they were quite certain, from the advice they gave Stormforce beforehand.

 

[lpdsn]

That's a wee bit different from two of your employees supposedly taking a holiday to do take a trip which was of commercial benefit to you in a boat you manage.

The point is that if two employees are allowed to take a coded boat from point A for their own pleasure and ultimately bring it back to point A that is perfectly legal. If they fail to bring it back without a reasonable cause you would expect the operator of the business to be pretty peeved, but it would still have been a perfectly legal trip. Therefore being peeved is not per se a proof of commercial operation.

 

[JumbleDuck]

and where does it say that in the legislation then?

 

[JumbleDuck]

The point is that if two employees are allowed to take a coded boat from point A for their own pleasure and ultimately bring it back to point A that is perfectly legal. If they fail to bring it back without a reasonable cause you would expect the operator of the business to be pretty peeved, but it would still have been a perfectly legal trip. Therefore being peeved is not per se a proof of commercial operation.

True, but that's not really my point, which is whether they were really on a holiday and free to do whatever they wanted with their time or whether they were expected by their employer to bring Cheeki Rafiki back to the UK.

 

[lpdsn]

It appears that they were quite certain, from the advice they gave Stormforce beforehand.

There was no transcript of the phone conversation which was key to what the owner of Stormforce understood.

 

[steveej]

Well I read that as the owner can pay who he likes (a delivery skipper) provided the owner is not receiving payment other than a contribution towards the cost of say food and provisions.

 

[lpdsn]

True, but that's not really my point, which is whether they were really on a holiday and free to do whatever they wanted with their time or whether they were expected by their employer to bring Cheeki Rafiki back to the UK.

If you borrow a boat you have an obligation to at least try to give it back at an agreed place and time. Now I believe this was a delivery in this case, but your argument that agreeing to hand it over at a certain place proves on its own that it is a commercial voyage has holes.

 

[steveej]

It appears that they were quite certain, from the advice they gave Stormforce beforehand.

does the MAIB report mention the timing of when this advice was provided to Stormforce? was it before or after he refunded the passengers their money?