How Do I Check Who Owns It/Is There Any Other Finance Interests

I had the deposit (20k, which happened to be the broker's fee) given to broker as stakeholder. No worries there, I'm happy to gamble 20k to get a deal done. (Gamble is a strong word -and he was an excellent broker, utterly trustworthy imho, I would happily deal with him again). But I had the balance of the price (half a bar) wired directly from buyer's account to my account. It didn't go thru the broker. Out of respect to the buyer's concerns, prior to the payment I lodged with the broker as escrow agent all the ship's papers, the signed BoS and the boat's keys, and I wrote a letter saying that on the money landing in my account in cleared funs the escrow came to an end and the escrowed property (being the papers and the keys, not the boat) was to be released to buyer, and the buyer then could take possession of the boat as he saw fit, which of course he (sensibly) did straight away. All QED and i think Observer would approve :-)

I do. The even-handedness of ensuring both buyer's and seller's interests are protected would be (I expect it was) very reassuring to the buyer. If finance is involved (on either side), the completion arrangements would need to be expanded and would be a bit more complicated, but that's not hard to do with some clear thinking and use of simple written instructions/agreements about who gets what and when.

It would be even better if a convenient way of mitigating the deposit risk could be added, should the seller (or buyer, or both) be unwilling to carry the risk on the broker. I suggested the joint names/dual signature bank account as a simple, practical solution, but it creates a possible 'deadlock' that might not be acceptable to the buyer if there is significant uncertainty (e.g. survey result) about the deal not proceeding to completion.

It could be a good idea for MBY or MBM (or the RYA?) to commission someone like jfm to construct a transaction 'route map' that buyers and sellers could use and tailor to their own circumstances, perhaps with a model of a simple escrow arrangement for completion docs, with brokers as escrow agent. Don't know if you'd be up for that, jfm, a la the VAT article? If not, any decent solicitor could do it, with some guidance on marine/marine finance issues if needed.
 
But I had the balance of the price (half a bar) wired directly from buyer's account to my account. It didn't go thru the broker. Out of respect to the buyer's concerns, prior to the payment I lodged with the broker as escrow agent all the ship's papers, the signed BoS and the boat's keys, and I wrote a letter saying that on the money landing in my account in cleared funs the escrow came to an end and the escrowed property (being the papers and the keys, not the boat) was to be released to buyer, and the buyer then could take possession of the boat as he saw fit, which of course he (sensibly) did straight away. All QED and i think Observer would approve :-)

Well thats v interesting and proves my point. They may have been the most trustworthy broker in the land but you didn't trust them enough to handle half a bar;) Basically you recognised the risk and made your arrangements accordingly. I'm willing to bet that 99 out of 100 other sellers would not have had the foresight to mitigate their risk in this way and for those 99 sellers, their half a bar would be at risk whilst it passed thru the broker's account and, IMHO, thats not a system which is 'robust' to use tranona's description, at least not robust enough for you to trust it



Yes all correct, up to the word "so". Please dont confuse title passing with payment of money. They're different things and the former doesn't happen automatically as a result of the latter. I think my escrow arrangement works better

Er why? The last 2 boats I've bought have been based abroad which brings additional risks but lets not go there. On each occasion I sat in the broker's office, inspected the documents, telephoned my bank to transfer the balance of money owed and then moved the boat to another marina on the same day. If title didn't pass when I paid the money to the broker why did the broker allow me to drive the boat away immediately? Indeed in your example below why did you hand your boat keys to the buyer when his money hit your account if title hadn't passed?



Fully agreed that suing someone is unlikely to be a good solution. Much better to make the transaction more fail safe to begin with. I have never bought thru a broker but the transaction I describe above seems uber low risk for buyer as well as seller. The buyer meets me in the morning at broker office. He sees the keys and the ships papers physically handed to broker in the morning, and a signed BoS to him, and the escrow letter. He sees the boat in the marina. He tells his bank to TT the money to me. We have a coffee. He comes on the boat and I show him how to do a few things on it. About 2pm the bank confirms to me the money has landed. I tell him the boat is his and leave him. He gets the keys and papers from the broker. What's not to like about that from a buyer or seller persepective?

As I say thats excellent, I approve of it completely and demonstrates that you recognise the risk but it's not the normal way of brokerage selling. How did you handle the broker's commission btw and was the broker happy to do this or did he object at first?
 
I do. The even-handedness of ensuring both buyer's and seller's interests are protected would be (I expect it was) very reassuring to the buyer. If finance is involved (on either side), the completion arrangements would need to be expanded and would be a bit more complicated, but that's not hard to do with some clear thinking and use of simple written instructions/agreements about who gets what and when.

It would be even better if a convenient way of mitigating the deposit risk could be added, should the seller (or buyer, or both) be unwilling to carry the risk on the broker. I suggested the joint names/dual signature bank account as a simple, practical solution, but it creates a possible 'deadlock' that might not be acceptable to the buyer if there is significant uncertainty (e.g. survey result) about the deal not proceeding to completion.

It could be a good idea for MBY or MBM (or the RYA?) to commission someone like jfm to construct a transaction 'route map' that buyers and sellers could use and tailor to their own circumstances, perhaps with a model of a simple escrow arrangement for completion docs, with brokers as escrow agent. Don't know if you'd be up for that, jfm, a la the VAT article? If not, any decent solicitor could do it, with some guidance on marine/marine finance issues if needed.

Yes, that's the whole point. There's no point designing a transaction which ensures YOU are alright if it stitches up your counterparty. Best to design something that deals with both sides worries. And as you say, it's not difficult

I had no finance to deal with but as you say tweaks could be made to cover finance. The trick here is to put the ship's papers into escrow (becuase there's no incentive for the broker to steal merely the ship's papers), or put the whole boat into escrow (it's much harder to embezzle a boat than a pile of money, and it's impossible to misappropriate it to office account or comingle it, which was part of the BA Peters problem), not the money into escrow. This should keep both sides happy - I'd be happy, as buyer or seller.

I take your point on the deposit but I'm less worried about it because it's so small. We used 20k on a 500k boat; as a seller I dont see any need for 10% = 50k as its purpose is merely to cover my lift out costs and show the guy is serious, and life would be easier if everyone dropped the 10% and took the same view on that. Also it is less risky if the deposit is no bigger than the broker's commission - if the sale goes through you dont care if he embezzles it! And he has no incentive to run off with it becuase that money is coming to him anyway in a week or 2 if he does his job well, so might as well stay the right side of the law! But that's in the eye of the beholder. Personally I couldn't be bothered with the faff of a bank account (because of KYC) and anyway as you say a 2-signatures account stops someone running off with the loot but can still lead to problems with deadlock

RYA and the trade associations could, and should, improve the structure themselves, to something along these lines imho. It's not difficult!
 
Er why? The last 2 boats I've bought have been based abroad which brings additional risks but lets not go there. On each occasion I sat in the broker's office, inspected the documents, telephoned my bank to transfer the balance of money owed and then moved the boat to another marina on the same day. If title didn't pass when I paid the money to the broker why did the broker allow me to drive the boat away immediately? Indeed in your example below why did you hand your boat keys to the buyer when his money hit your account if title hadn't passed?

Mike we're in agreement and yes it agrees with your point. Just to answer a couple of things in there...

1. Yes we agree. I didn't distrust the broker, he was a nice guy, and he did a great job. I just preferred not to have to consider if a "BA Peters" could happen to me, or a 2-3 week delay like you had (and had warned people about on this forum - thanks!). The broker didn't object one bit. All he cared about was getting his commission which by coincidence was 4% and the same as the deposit. He held that as stakeholder from the time the buyer signed the contract, and I emailed him to say that when the rest of the purchase money landed in my account the 20k automatically became his, and that made him comfortable enough, as it should. So, all three parties were happy.

2. Title passes by various means and depends on the applicable law but with a boat it's usually a BoS and possession. You do not have title (in UK law) just because you've paid. You might (it depends...) have an equitable interest in the boat once you've paid (which means, for example and in extremis, you could apply to the court to ask them to direct the ship registry to record a transfer to you), and you might even have beneficial ownership in UK law (but not overseas law in civil law countries) but that isn't quite title and you dont want to be bothered with courts and stuff. Indeed getting the keys isn't title (though it is close, possession being 9/10ths and all that). Hence in my escrow structure I as seller signed a BoS in favour of buyer, in front of him, and handed it to broker to hold in escrow, all prior to the money transfer. For the buyer, this de-risked the transaction in case I were to refuse to sign a BoS once I'd got the money. Title passed in my transaction not by the transmission of money but because the escrowed BoS became the buyer's free n clear property once the money landed in my account. And just to be ticketyboo I emailed the broker to tell him to release the escrowed items to buyer, so he had a nice audit trail. In your transactions something must have made title pass - a BoS or the foreign equivalent? what would you have done if having paid the money the seller refused to supply that document to you? Better to de-risk it as I did for my buyer, imho
 
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Title passes by various means and depends on the applicable law but with a boat it's usually a BoS and possession. You do not have title (in UK law) just because you've paid. You might (it depends...) have an equitable interest in the boat once you've paid (which means, for example and in extremis, you could apply to the court to ask them to direct the ship registry to record a transfer to you), and you might even have beneficial ownership in UK law (but not overseas law in civil law countries) but that isn't quite title and you dont want to be bothered with courts and stuff. Indeed getting the keys isn't title (though it is close, possession being 9/10ths and all that). Hence in my escrow structure I as seller signed a BoS in favour of buyer, in front of him, and handed it to broker to hold in escrow, all prior to the money transfer. For the buyer, this de-risked the transaction in case I were to refuse to sign a BoS once I'd got the money. Title passed in my transaction not by the transmission of money but because the escrowed BoS became the buyer's free n clear property once the money landed in my account. And just to be ticketyboo I emailed the broker to tell him to release the escrowed items to buyer, so he had a nice audit trail. In your transactions something must have made title pass - a BoS or the foreign equivalent? what would you have done if having paid the money the seller refused to supply that document to you? Better to de-risk it as I did for my buyer, imho

Yes I thought the BoS would be the critical point but does handing over of a signed BoS to the buyer without payment of the balance of money owed transfer title? Surely not. In many brokerages sales, the documentation is handled by post so the BoS may be signed days before the payment of the balance so in theory, if the buyer got hold of that, is the boat is his? In practical terms it is the money payment that transfers title and the BoS that confirms it.
Yes, your escrow arrangement for the BoS, agreed lower deposit and direct balance payment is a very good model and should I ever sell my Ferretti, I shall copy it, if you don't mind:)
 
2. Title passes by various means and depends on the applicable law but with a boat it's usually a BoS and possession.

Shouldn't that be delivery of the BoS to the buyer - i.e. possession of the BoS rather than of the boat?

As you've touched on varying means of transferring ownership of goods, it may be helpful to others (if you have time) to see a brief explanation of the legal characteristics of a bill of sale and the advantages it provides.

I would have a go myself but you'll express the technicalities more accurately than I.
 
Yes I thought the BoS would be the critical point but does handing over of a signed BoS to the buyer without payment of the balance of money owed transfer title? Surely not. In many brokerages sales, the documentation is handled by post so the BoS may be signed days before the payment of the balance so in theory, if the buyer got hold of that, is the boat is his? In practical terms it is the money payment that transfers title and the BoS that confirms it.

I'm pre-empting the purpose of my last post and jfm may come back and elaborate but no, your statement is not correct. A bill of sale, in and of itself, is a conveyance of property in goods. If it is delivered to the buyer, title passes. However, until it is delivered, it has no effect (like any other written instrument).

It is a critical document so, if it is signed in advance of paymend being received, it should be held in escrow and only delivered to the buyer upon confirmation that payment has been received. You can achieve that by delivering it to the escrow agent (the broker) on condition that it is held to your order, or perhaps with a witten, irrevocable direction that it is not to be delivered to the buyer until you have confirmed receipt of payment.
 
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Well done ari for taking the time to google just 1 case that looked like had a sensible outcome, its ashame the info wasnt there on the yachtbroker that clearly didnt do his homework for the thousands he must have taken in commission, personally he didnt do his job properly which is what this long thread roots back to, especially in dakas eyes TRUST!!.

.

Paul, the whole point is that THERE IS NO HOMEWORK THAT CAN BE DONE!!!

That's the point everyone seems to miss and the point of the original question that started this thread.

There is no way the broker could have known, no checks that can be made. On a £165K (in todays' money) boat!!

Insane.
 
Ari
All points read and noted, and thanks, but

1. I haven't read the detial of Haddock but I expect the judge found Haddock was partly to blame, and his claim (which would have been in equity) shouldn't therefore be allowed to succeed in full. That's perfectly right. Anyone buying a £165k boat (in today's money, using Observer's calc) that is unregistered must be made to accept the fact that there is some risk of there being a mortagage and of the seller being a crook. Anyone buying from a member of the public must be made to accept the risk that they could be dealing with a crook. That's perfectly right. It's not everyone else's job to bail them out. Life isn't that easy.

It's not everyone elses job to bail them out I agree, but surely it's right and proper that some reliable mechanism should be in place to help negate the risk, rather than simply nothing?




2. In contrast, if the boat had been part 1 reg and the lender had failed to reg the mortgage, you can be pretty sure in general that Haddock's share of the loss would have been lower and the finance co's share higher. But it wasn't Part 1 reg, and Haddock knew that, and proceeded in knowledge of that. As I say he shouldn't be bailed out on his share of "blame" attributable to his taking that risk. Folks buying a 165k boat might be well advised only to buy buy part 1 reg boats, as many of use here would, and those who don't need to carry their own can

How can you tell it's Part One registered? By the plaque. What happens if the seller removes the plaque?

Err...



3. Now, if the crook problem were widespread it would be worthwhile spend a few million quid of taxpayer's money to sort it out, perhaps with a register. But the crooks problem is tiny, so this isn't justified

4. As for a super register that records say HIN, engine serial #, gearbox serial#, be careful. all those items can be changed for a few quid. Crooks are determined and they generally just get smarter to get around any hurdles put up in their way. For sure, putting serial numbers and HINs on the register is a very low hurdle for a crook out to make a few hundred grand. Serial number plates can be made up for nowt and rivetted on. Real serial numbers for the same engine series can be got from overseas boats that wont be on the super UK register. HIN numbers can be retrofitted into GRP in a couple of hours. So you could spend all that money on the super register, and people can still "re-identity" a registered boat, part 3 it, and sell it claiming there is no mortgage.

I've actually seen a new HIN put on a boat by the way - my own current boat. A Fairline moulder must have not put enough release agent on the HIN piece of the mould, and when the hull was lifted out of the mould the gelcoat stuck to the mould ripping that bit f gelcoat from the hull. So the hull had only half its correct HIN. It went to the Southampton boat show like that, before I bought it. Prior to delivery I asked them to put the HIN in correctly. So they cut out the little bit of busted gelcoat, made a new mould for the HIN, gobbed it all in, removed the tiny mould, polished it, and hey presto a retro-fitted HIN and you can't tell!

You'll never completely legislate against crooks. No more than you can with cars. But we still have a perfectly valid and workable HPI system for cars non the less.

What we're really talking about here is not crooks, but simply the ability to check for loans in an instance whereby you suspect a vendor may not be being completely honest. For example the chap that isn't wanting to defraud you, but figures he'll just keep the loan "open", keep up the payments, and use the money for something more urgent. Perhaps with every intention of clearing the loan once he's back on his feet. And runs out of cash two years later...

It'll happen.

If it happened to you I wonder if the line "oh not to worry, the vast majority of us are fine" will cut much ice?
 
One final thought for all those convinced that Full Part One is safe as houses.

To register a boat on Full Part One you once needed a full and complete chain of Bills of Sale, upto and including the Build Certificate. So history on the boat from day one in other words.

A few years ago the requirements were loosened hugely.

Now all you need is a chain going back five years.

Or to put it another way, a Bill of Sale (easily downloaded from the MCA web site and self completed) signed by anyone proporting to be the previous owner, and dated any time over five years ago.

That's it, that's all the proof you need, that and access to the boat in question (so a marine surveyor can come and measure it for the tonnage measurement, but not take serial numbers).

Hell, if I had access to a Sq58 and knew the name of yours, I could fully Part One Register your boat in my name JFM!

Safe, huh? ;)
 
Ari I see all your points, and I'm not sure we're disagreeing much, except that I'm saying there is always some small risk for buyer that seller is a crook, and that's a risk that buyer has to take, whereas you're saying the government should do something about it like have a HPI style register. On that point, I don't think any register can do significantly more than Part 1 already does. Adding engine serial numbers can easily be overcome by a fraudster. I've already had a HIN number retrofitted to my boat. So you'd go to all that cost and effort of the super register, yet the buyer still wont be risk free. So I'm not getting your point. Are you really saying it is possible to create a zero risk register?

Just in reply to some specifics:

One final thought for all those convinced that Full Part One is safe as houses.

I'm not saying safe as houses. I'm merely saying pretty safe, and that adding HIN and engine numbers doesn't make it safer. Those minded to fraudulently play with the P1 register to steal half a £mill will be equally able to do that with your super register. All I'm saying is the super register doesn't cure the problem you are worried about

That's it, that's all the proof you need, that and access to the boat in question (so a marine surveyor can come and measure it for the tonnage measurement, but not take serial numbers).

Hell, if I had access to a Sq58 and knew the name of yours, I could fully Part One Register your boat in my name JFM!

No you couldn't, not using the name of my boat, you'd need another name, and my boat would have to be >5yrs. But I take your point. You could see my 6yr old boat called "Bad" and apply to register the same model of boat as "Ugly" using a fake BoS and a borrowed boat for the tonnage survey. Then you could come to my boat, stick your C&M plate on it and new name decals "Ugly" and hotwire it and sail it away. Then you could sell it and you'd have a part 1 to dupe buyer into thinking you own it. Buyer could be duped, I agree. But buyer should undertake due diligence - ask to see your paperwork, service receipts, marina fees for this boat called "Ugly". You'd have none. Any sensible buyer would walk. If he chose to buy it then caveat emptor. My point is, it is not the job of the government/taxpayer or anyone, other than this tiny class of stupid people, who should pick up the cost of a super registry to try to stop this crime happening.

In addition to all that, buyer isn't going to hide the (my) boat. He'll sail it, then sell it thru a broker on the www. So someday I will find it. At that point buyer will assist in unravelling you, bank transfer details etc would lead to you unless you're VERY good at this, and you'd go to jail. This crime only works for VERY good money launderers.

It just isn't enough of a problem to justify a super registry! Meanwhile, when buying a boat, everyone must remember caveat emptor and if it doesn't stack up dont buy it
 
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It's not everyone elses job to bail them out I agree, but surely it's right and proper that some reliable mechanism should be in place to help negate the risk, rather than simply nothing?

P1 register, plus due dil by buyer, negates the rsik enough imho

How can you tell it's Part One registered? By the plaque. What happens if the seller removes the plaque?

Agreed. But I wouldn't then buy the boat. I wouldn't buy any large boat unless it is presented as registered on a decent regstry and the name matches the paperwork history. Those that choose a different policy, caveat emptor. Moreover, how would I tell the boat was correclty on your super registry if the owner had fraudulently changed its details (which is the same level of deceipt as removing the C+M plaque?)

You'll never completely legislate against crooks. No more than you can with cars. But we still have a perfectly valid and workable HPI system for cars non the less.

HPI isn't crook-proof, so it's the same as P1. I'm not getting your point :-)

What we're really talking about here is not crooks, but simply the ability to check for loans in an instance whereby you suspect a vendor may not be being completely honest. For example the chap that isn't wanting to defraud you, but figures he'll just keep the loan "open", keep up the payments, and use the money for something more urgent. Perhaps with every intention of clearing the loan once he's back on his feet. And runs out of cash two years later...

In my book, he's a crook and IS trying to defraud me. You're very charitable! Anyway, like I say, this guy can still change the serial numbers and detials on your super registry, so what has that registry achieved? As you said, you can't legislate agianst crooks. I repeat, any buyer who buys a purportedly non P1 reg boat (or overseas equiv) must take on the extra risk that entails, caveat emptor

If it happened to you I wonder if the line "oh not to worry, the vast majority of us are fine" will cut much ice?

It generally wont happen to me because I'll do the diligence and not buy a big-ticket boat that isn't registered and whose paperwork history doesn't stack up. But if I cut that corner and it does happen to me, I'll take it on the chin and not think other citizens or taxpayers should bail me out, any more than I'd ask them to wipe my arsse. People gotta grow up and take responsibility for their own actions, especially when there are perfectly good due diligence chaecks open to them to use

All imho!
 
Thinking about this, wouldn't it make more sense to do it the other way round, i.e. have a loans database?

Any loan, HP, mortgage or whatever taken out which is either secured against a specific asset or where the asset is kept by a third-party (lease, lease-purchase, etc.) could be be recorded in a database.

Last step before the asset changes hands would be to check that the Asset isn't on the database. It would be in the finance companies own interest to put all loans/assets on the database as much as anyone's.
 
JFM, firstly thank you for your input, all very sensible comments and taken on board (as it were!)

However I think that your line of "you'll never make it watertight so why bother trying" is akin to saying "you'll never stop a determined burglar getting into your house so why bother locking the front door when you go to work in the morning?"

Changing engine numbers, gearbox numbers, HIN number (you know there's more than one on your boat, right..?) is a whole world of difference away from merely removing the P1 plaque and changing the name. (In fact would you even need to change the name? Can you obtain a Transcript from Cardiff with just a name or do you need a number).

Fact is, adding serial numbers, whilst not making the registration process watertight, would make it a heck of a lot more secure than the current system, which is hopeless frankly and relies almost solely on peoples honesty. I'm a trusting chap, but handing over tens or hundreds of thousands in hope..?

Let me put it this way. I could, if I owned a financed P1 registered boat, hide the registration and mortgage from you very easily, agreed? But changing engine numbers, gearbox numbers, hull numbers. i wouldn't know where to start to make it look convincing. Would you?

So yes, "my" system isn't fool proof. Any more than locking your front door or your car will stop a very determined thief. But if there is an easy way of upping security then it makes sense to do it, does it not?

Even simply adding serial numbers to P1 would be a start, don't even need a complete new process. Oh and (as you've rightly already suggested) a change of law that finance companies only have right to lien if P1 registered.

It's a lax lax process at the moment, and it needs to be (and could easily be) fixed.
 
Thinking about this, wouldn't it make more sense to do it the other way round, i.e. have a loans database?

Any loan, HP, mortgage or whatever taken out which is either secured against a specific asset or where the asset is kept by a third-party (lease, lease-purchase, etc.) could be be recorded in a database.

Last step before the asset changes hands would be to check that the Asset isn't on the database. It would be in the finance companies own interest to put all loans/assets on the database as much as anyone's.

YES!!!!

That is EXACTLY what I've been saying!!

There needs to be a proper central database! (Or P1 adapted to be fit for purpose).
 
YES!!!!

That is EXACTLY what I've been saying!!

There needs to be a proper central database! (Or P1 adapted to be fit for purpose).

ari,

I wonder why you are continually trying to find a problem to fit your solution!

Seems pretty clear to most here, some of whom have far more experience and knowledge than me (and maybe you) that there really is not a problem on the scale you imagine. All you have been able to produce as evidence is an ancient report in the newspaper that was long on imagination and short on fact.

If the finance industry is not concerned, neither are the representative bodies of boat owners or traders, then it suggests there really is not a problem.

Lets face it, we have established (not least in your report) that unregistered charges are very difficult to enforce, boats (particularly valuable ones) are very difficult to hide and thousands of transactions occur every year with none of the problems you imagine.

So, do you know something we don't? If so please share it.
 
I'm not "trying" to find a problem, there is one! The problem is, there's no way of ensuring that you're not going to be responsible for someone elses debt when you buy a second-hand boat. Simple as.

Why would a finance company be concerned? They're not taking the risk (their lien stands), you (the buyer) take it all. Why should traders be concerned? They don't take the risk either.

And buyers seem to be unconcerned because (as demonstrated by this very post) most simply don't understand the risks, or think P1 is the magic answer, or assume that a professional broker will ensure all is well and their PI insurance will kick in if not (without understanding that, actually, they can't and it won't).

As to scale of risk, do you really need to be concerned with whoever else is at risk or should you be more concerned with your own affairs? That's my way, I'm very concerned that when I buy my next boat, there is simply no reliable way of ensuring it is free of encumbrance. Simple as that. I couldn't give a stuff that a thousand other people bought a boat without issue, I'm concerned about the risk I have to take.

A hundred thousand other people will drive to work on Monday morning without an accident but I'll still wear my seatbelt rather than thinking that statistically they all managed it so I should probably be fine.

I suspect you will too...
 
Well, Ari, I guess if you are so worried about it - don't buy a boat! Seems you are the only one worrying and I suspect the market will not collapse if you don't buy.

Once again what you are proposing is never going to happen as there is no perceived need, it has been considered and rejected by the parties involved or their representatives - and life goes on.
 
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