Cheeki Rafiki deaths: Yacht firm boss guilty

[Tranona]

So far. It was probably sensible to wait for a trial precedent to be set.

Thinking a bit more about it, suspect the MCA will do nothing. The wording of the rules has been the same for years, and when asked in this case their specific advice related to this passage was clear. Now the court has effectively agreed with their interpretation.

Given that they are never going to "approve" every single passage they will rely on operators being aware of the ruling and acting accordingly. Given that the specific case was typical of how a number of others seem to interpret the law, it would be difficult to argue against it. Logically the practice would die out as there is a pretty good chance of a prosecution should another disaster occur. However there could equally be a prosecution under S100 even if the boat was properly coded.

 

[Mark-1]

Sure. So the question is perhaps whether Mr Innes would have been entirely happy if his two employees had decided not to bring Cheeky Rafiki back, but to go on a walking holiday in the Lake District instead.

Even if we could know that beyond reasonable doubt, it's not really, is it?

Supposing he'd be delighted and already had some backup people eager to do the trip. Would that prove it wasn't a commercial trip?

Supposing he was deeply disatisifed by the news and couldn't get replacements, would that prove it was a commercial trip? He's hardly going to openly dismiss them citing that as the reason given the whole thing works on the premise that it's not a commercial trip.

 

[lpdsn]

Sure. So the question is perhaps whether Mr Innes would have been entirely happy if his two employees had decided not to bring Cheeky Rafiki back, but to go on a walking holiday in the Lake District instead.

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.

 

[Fr J Hackett]

Just because you work commercially, and even if the boat is or has been commercially coded, that does not make it a commercial voyage.

Regs state that owners/skippers can sail for pleasure and are then not bound by the regs for that trip.

If money changes hands its fairly black and white.

Yes the owner could have delivered the boat himself and argued it was for pleasure but then the argument of the boat being relocated for commercial reasons comes into play i.e. relocated to it's summer charter base which is why I said the relationship between the owner would have to be demonstrably broken. There are many ways to skin cats.

 

[lw395]

Thinking a bit more about it, suspect the MCA will do nothing. The wording of the rules has been the same for years, .......

Not entirely, the UK adopted the Maritime Labour Convention in 2014.
I do not know to what extent this places more H&S onus on maritime employers.

 

[Fr J Hackett]

Even if we could know that beyond reasonable doubt, it's not really, is it?
​The definition of beyond reasonable doubt is quite clear: That no other logical explanation can be derived from the facts that the defendant committed the crime.
Supposing he'd be delighted and already had some backup people eager to do the trip. Would that prove it wasn't a commercial trip?

Supposing he was deeply disatisifed by the news and couldn't get replacements, would that prove it was a commercial trip? He's hardly going to openly dismiss them citing that as the reason given the whole thing works on the premise that it's not a commercial trip.

It was deemed a commercial trip because the boat was being relocated for commercial reasons.

 

[JumbleDuck]

If I'm honest I don't know what most of that sentence means ...

It was supposed to mean that, though you clearly want the MCA to have been uncertain about the advice they gave, certainty in such things is a rare and expensive animal. Mr Innes was not sensible to ignore the advice they gave him.

 

[Fr J Hackett]

Thinking a bit more about it, suspect the MCA will do nothing. The wording of the rules has been the same for years, and when asked in this case their specific advice related to this passage was clear. Now the court has effectively agreed with their interpretation.

Given that they are never going to "approve" every single passage they will rely on operators being aware of the ruling and acting accordingly. Given that the specific case was typical of how a number of others seem to interpret the law, it would be difficult to argue against it. Logically the practice would die out as there is a pretty good chance of a prosecution should another disaster occur. However there could equally be a prosecution under S100 even if the boat was properly coded.

I suspect you are right they will rely as they have done in the past on self enforcement and hope that the prosecution focuses a few minds. I suspect that the will however be watching what happens and if they find that the regulation is being breached frequently they will bring other prosecutions.

 

[JumbleDuck]

Thinking a bit more about it, suspect the MCA will do nothing. The wording of the rules has been the same for years, and when asked in this case their specific advice related to this passage was clear. Now the court has effectively agreed with their interpretation.

Given that they are never going to "approve" every single passage they will rely on operators being aware of the ruling and acting accordingly.

It probably depends on who does what and how blatantly. There are lots of people bending the rules about commercial trips and coding, but you are only likely to come to official attention if you attract it - like that chap in Maryport who was done for offering sailing trips in exchange for money without any of the right paperwork. The people who offer a day in their yacht as a school raffle prize are probably safe for now ... unless something goes wrong.

 

[steveej]

Yes the owner could have delivered the boat himself and argued it was for pleasure but then the argument of the boat being relocated for commercial reasons comes into play i.e. relocated to it's summer charter base which is why I said the relationship between the owner would have to be demonstrably broken. There are many ways to skin cats.

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

 

[Kukri]

Not entirely, the UK adopted the Maritime Labour Convention in 2014.
I do not know to what extent this places more H&S onus on maritime employers.

Please let us not start on that one. I have to "know about it" so whilst I am no expert I have most certainly been taught about it. The idea of enforcing the ILO MLC hours of rest rules on a yacht makes me shudder.

 

[Slycat]

It was deemed a commercial trip because the boat was being relocated for commercial reasons.

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?

 

[Mark-1]

​The definition of beyond reasonable doubt is quite clear

The definition of beyond reasonable doubt is famously unclear and judges have jumped trhough insane hoops to avoid directly answering it. It's entirely up to juries to come up with their own definitions.

​It was deemed a commercial trip because the boat was being relocated for commercial reasons.

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.

I think most of us and the jury think that "only for sport or pleasure" means that the fact the four blokes on board were using the boat for pleasure is trumped by the fact that it was also being delivered and that the trip was offered on the condition that it was delivered. ie it wasn't being used 'only' for sport or pleasure, it was being used for both.

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

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

 

[Fr J Hackett]

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

Yes

 

[steveej]

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

 

[steveej]

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

 

[Kukri]

I would like to make a general point.

The boat capsized because the keel fell off. The four men in her crew died either as a direct result of the capsize or because they could not get to the liferaft; we do not know which.

There seem to be a lot of people here who are keen to discuss the minutiae of MCA rules, M notices, etc.

The crew were not being paid; they were undertaking the trip for fun - for "sporting and pleasure purposes".

I live in the world of MCA rules - I operate British flag ships - it's how I earn my living. Before anyone rises to the dizzy height of Third Mate on a British ship, she or he has spent three years studying their profession including the rules that govern it, and been examined orally and in writing on their knowledge.

Before you all rush into getting the MCA involved in the activities of boats smaller than 45 ft LOA with crews who are not being paid - "I beseech you in the bowels of Christ - consider that you may be mistaken"

 

[flaming]

I also presume their are other Cat 2 boats in the Carribean that are wanted back

I just looked at the entry list for 2 events. Antigua week 2017 and Round the Island race 2017.

Just from the boats that I know, I can see 5 boats that competed in both events that I know to be involved in the race charter game, including 1 Beneteau first 40.7.

Obviously I have no way of knowing how the boats got from Antigua to the Solent.

 

[JumbleDuck]

Supposing he'd be delighted and already had some backup people eager to do the trip. Would that prove it wasn't a commercial trip?

"The trip" does not exist as an entity in its own right, devoid of context. It does make sense to ask whether "the trip" was commercial - you have to ask whether the trip done by these people in these circumstances was commercial. Had the owner and their family bought Cheeky Rafiki back for fun then clearly it would not have been a commercial trip. Had Stormforce sold places for (non-refunded) cash then clearly it would have been commercial.

I'm afraid that for all your doubts, a voyage made to move a yacht from somewhere it had been earning money to somewhere else it was to earn money and crewed by two employees of the company who had earned and would earn the money is very hard to see as anything other than commercial.

Some years ago I had a filling done by an NHS dentist. I wanted quite, but he explained that the NHS would only pay for amalgam. However, it would pay for white replacement for failed amalgam fillings, so having drilled out the cavity he waved his hands vaguely over my face, said "I'm putting in an amalgam filling ... whoops, it has failed ... now I'm taking it out again" and stuck in the white stuff. That sort of playing around is fine, but only until you get caught. Likewise, pretending that two of your staff have taken an unprompted holiday and chosen to use it by doing work of commercial benefit to you is never going to sound very convincing.

Supposing he was deeply disatisifed by the news and couldn't get replacements, would that prove it was a commercial trip?

Yup.

 

[Mark-1]

you clearly want the MCA to have been uncertain about the advice they gave

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. Then it occured to me that would also explain why the RYA didn't follow their usual procedure and kick Stormforce out as soon as they were aware he'd broken the rules. Perhaps they had to wait for the trial to find out exactly what the rules were.

These are your ideas, not mine. The MCA and RYA have been clear on their interpretation of the rules for decades to my knowledge. You're saying the MCA might not be. (...and you said twice by raising the issue that the Supreme Court might take a different view.)