Offering Boat Trips as Charity Auction Prizes

[NickNoBananas]

I have a 10 metre motor cruiser which I use predominantly for offshore angling. I regularly take friends, but I am scrupulous in ensuring that no payment whatsoever is received, in cash or in kind and certainly not the ubiquitous "donation for fuel". Okay, so far...

My workplace is hosting a charity auction in aid of "Help for Heroes". I would like to offer a day out on my boat as an auction lot, but initial advice from the RYA suggests that this may be regarded as chartering, requiring MCA coding and commercial insurance.

Can this be right, when I am getting no benefit at all from people I choose to take on my boat, but who have made a donation to charity?

As always, I hope the experience of MBY forum readers may provide the answer.

Thank you.

NickNoBananas

 

[Philiz]

No personal experience but I know someone who does a similar thing, he has a commercial license. Unfortunately I think RYA are right.

 

[Kawasaki]

Unfortunatley these days You might have a problem.
Not so much with the MCA etc but just how people are.

Should something horrible happen like a MOB etc, no doubt some 'hero' will want to blame someone or make some sort of claim.

I would speak to My Insurance Co, see what reaction they have.
If everything goes swimmingly (oops no pun intended!) then fair enough.

Although You will not receive payement.
Payement will have been made.
How this reflects in regards to the Norm ref paying passengers I don't know exactly.

You could draw up a 'waiver' type of Doc for the peeps to sign
Whether this would hold up should an accident happen, again I,m not sure.
'Accidents' seem to be rare these days, its usually someones fault!!!!

A phone call to the MCA might be appropriate at this Juncture.

Elf and safety has gone mad imho.

Personally, having said all that I would just do it
But thats Me!

 

[Moodyoldman]

I have offered a day's sailing from Chichester harbour as an auction prize at an upcoming charity "do". These posts have made me think again! It would be interesting to get a definitive answer as to liability if anything goes wrong. How different would the situation be if something went wrong when just taking a couple of friends out for the day? Is the fact that I do not know the auction winners significant, or is it the fact that they have made a donation to charity?

 

[AllanJ]

Parallels?

I don't know if this helps;
I fly and rent a plane. It is common practice in these circumstances to allow the pilot to share the costs among all of those on board, as long as he pays (at least) his fair share. I have never seen the difficulty with liability mentioned in any pilot forum, but that is not to say that it hasn't been.
I pontificate, so a letter from your insurers will mean more than a thousand opinions in here. Please let everyone know how you get on - I think that it is a great idea.

 

[jfm]

I have a 10 metre motor cruiser which I use predominantly for offshore angling. I regularly take friends, but I am scrupulous in ensuring that no payment whatsoever is received, in cash or in kind and certainly not the ubiquitous "donation for fuel". Okay, so far...

My workplace is hosting a charity auction in aid of "Help for Heroes". I would like to offer a day out on my boat as an auction lot, but initial advice from the RYA suggests that this may be regarded as chartering, requiring MCA coding and commercial insurance.

Can this be right, when I am getting no benefit at all from people I choose to take on my boat, but who have made a donation to charity?

As always, I hope the experience of MBY forum readers may provide the answer.

Thank you.

NickNoBananas

This counts as chartering I'm afraid. The law is in Statutory Instrument no2771, 1998, "Merchant Shipping (Vessels in Commercial Usefor Sport or Pleeasure) Regulations 1998, para 2(1)(a).

This law says that the only thing that is not chartering is
(i) use of the boat by owner or his immediate family or friends (or, if the boat is owned by a company, use by officers or employees of the company or their immediate family and friends), and provided
(ii) no payment is made for use of the boat except for contributions to (and not exceeding) the operating costs of the actual excursion ie fuel and berthing

"Immediate family" is only husband/wife/brother/sister/ancestor or lineal descendent. So not your uncle or your nephew, for example (though, they could be your friends)

Your proposal satisfies (ii) but not (i). So it's chartering.

I'm only telling you what the law says, not what to do! But if the passengers are members of the public you don't know then I think you'd be unwise to do this in an uncoded boat and without commercial insurance and YMC ticket etc. Sorry to rain on your parade.

All that said, ref your 1st para, it's ok to take fuel money from friends

 

[jfm]

I have offered a day's sailing from Chichester harbour as an auction prize at an upcoming charity "do". These posts have made me think again! It would be interesting to get a definitive answer as to liability if anything goes wrong. How different would the situation be if something went wrong when just taking a couple of friends out for the day? Is the fact that I do not know the auction winners significant, or is it the fact that they have made a donation to charity?

Moody, what you're doing is I'm afarid chartering. Even if you don't receive a penny. Reason is, the passengers are not your friends.

Consequences are (a) your insurance might be invalid, depends on its terms, and (b) you are committing an offence unless you have YMC and a coded boat, for which the max penalty is a fine (dunno how much) and 2 years in the clink. Pretty tough, but that's what it says.

In your case, it's the fact you don't know the auction winners that is significant

A thought might occur to you, which is that if you rescue someone at sea and they come aboard, they are not your frends, so you are in commercial use. You're not - there's a get out clause in 8(2) of the Regulations I referred to above

 

[misterg]

This law says that the only thing that is not chartering is
(i) use of the boat by owner or his immediate family or friends (or, if the boat is owned by a company, use by officers or employees of the company or their immediate family and friends), and provided....

Sorry jfm, barrack room lawyer time:

Surely NickNB (i.e. the owner) *is* using the boat in these circumstances? - I assume he isn't just going to hand the lucky winners the keys and say "Have a nice time" ?

As the owner, he's using the boat to host a social event, isn't he?

It would also be OK for his immediate family or friends to 'use' the boat for similar purposes, wouldn't it?

I agree that clarification from NickNB's insurers is the way to go in these litigious times.

Andy

 

[jfm]

Sorry jfm, barrack room lawyer time:

Surely NickNB (i.e. the owner) *is* using the boat in these circumstances? - I assume he isn't just going to hand the lucky winners the keys and say "Have a nice time" ?

As the owner, he's using the boat to host a social event, isn't he?

It would also be OK for his immediate family or friends to 'use' the boat for similar purposes, wouldn't it?

I agree that clarification from NickNB's insurers is the way to go in these litigious times.

Andy

No, the law says (in para2(1)(a)(i)(aa) to be precise) that a non commercial vessel is "any vessel which at the time it is being used is, in the case of a vessel wholly owned by an individual or indivuduals, used only for the sport or pleasure of the owner or the immediate family or friends of the owner...", and then there are other conditions too

The crucial word is "only". It wouldn't be used only for the owner if there were non owners on board. The guests have to be family or friends, not auction winners or raffle winners

As for clarifcation from insurers, that's fine so far as insurance is concerned but this is only 50% an insurance problem. The other 50% is that it's an offence punishable by prison (not that they'd send you to jail for a first offence, but it's not a conviction you'd want on your record...) and you wouldn't want to take your insurer's clarification on the offence aspect!

 

[toad]

One possible way would be to have the auction winner to be a "friend of Tony's who takes his friends out on his boat".
Looking at this situation in general, I use my boat to marshall races as a volunteer but often the crew who are also volunteers are unknown to me before the race. The club I belong to has open days where prospective members can be taken out on the type of boats that sail from the club, but they are not friends.
I suspect the only way this will be settled will be a test case in court, who wants to be first?

 

[Searush]

So a guy goes into a club looking to gain experience & gets an offer of a crew place on a cruise or race - this is not an uncommon event, it is a time honoured way of getting experience. Yet the general consensus so far is that this is "chartering". Bowlox. Can anyone point at a precedent in law? A conviction or even a failed prosecution attempt?

Get real. It may be technically illegal, but I would guess that the chance of prosecution is less than extremely low. Any one had a go of someone else's dinghy on a campsite? Done a boatswap for fun? They would class as charters under the above interpretation.

Don't let stupid H&S gone mad perceptions rule your life. By all means explain the issue to the winner & ask them to sign a disclaimer or to agree to be your "friend" for the day, but don't wimp out for fear of the highly improbable.

Edit: It is my pleasure to take out a stranger for a sail to encourage the love of sailing. No money changes hands, even if a donation has been made as a seperate transaction.

 

[jfm]

So a guy goes into a club looking to gain experience & gets an offer of a crew place on a cruise or race - this is not an uncommon event, it is a time honoured way of getting experience. Yet the general consensus so far is that this is "chartering". Bowlox. Can anyone point at a precedent in law? A conviction or even a failed prosecution attempt?

Get real. It may be technically illegal, but I would guess that the chance of prosecution is less than extremely low. Any one had a go of someone else's dinghy on a campsite? Done a boatswap for fun? They would class as charters under the above interpretation.

Don't let stupid H&S gone mad perceptions rule your life. By all means explain the issue to the winner & ask them to sign a disclaimer or to agree to be your "friend" for the day, but don't wimp out for fear of the highly improbable.

Searush, it isn't bollox. I'd like it to be, as much as you, but really it isn't. I agree with you 100% that the guy who walks into a club and asks for crew experience will not lead to prosecution or conviction, for all the reasons you say

But OP's question is different. In OP's case, some people he has never met buy the boat ride for money in an auction. They turn up to his boat and he kinda has not much choice to take them out, even if he thinks they're awkward bugggers. Then something happens and one of them falls off, say. Then insurers somehow get involved, or one of the guests makes a complaint, and someone awkward decides to pursue this and OP finds himself with even the threat/worry of a criminal indictment. Not a very nice place for OP to be, and perfectly correct of this forum to warn him of that possibility.

It's completely different from the guy in the boat club looking for crew experience whom you'd meet first (so he's a friend), who you could say "no" to if you sensed he was awkward, who wouldn't have paid, and who wouldn't have the equitable ground to stand on of saying he was entitled to expect the boat to be of coded to carry members of the general public. I'm not at all an H&S fanatic (on the contrary, I'm a high risk taker, including with the law) but I genuinely think OP should think carefully about this particular trip before making up his mind. All imho

 

[misterg]

No, the law says (in para2(1)(a)(i)(aa) to be precise) that a non commercial vessel is "any vessel which at the time it is being used is, in the case of a vessel wholly owned by an individual or indivuduals, used only for the sport or pleasure of the owner or the immediate family or friends of the owner...", and then there are other conditions too

The crucial word is "only". It wouldn't be used only for the owner if there were non owners on board. The guests have to be family or friends, not auction winners or raffle winners

So taking your line of argument further would mean that only friends or immediate family would be allowed on my boat or it becomes a commercial vessel ? What about friends of friends? 2nd cousins?

I remain to be convinced about your interpretation - Surely I can invite anyone I want as my guest onto onto my (actually "our") boat without committing a criminal offence? I believe I could loan our boat to my immediate family or friends and they could invite who *they* like onto the boat as guests. (Agreed that if I am making money, etc. off them for trips it becomes a commercial operation.)

My interpretation (FWIW) is that the OP is supporting a charitable cause by offering an open invitation to benefactors (randomly selected) of the same charitable cause to be his guests on his boat.

As for clarification from insurers, that's fine so far as insurance is concerned but this is only 50% an insurance problem. The other 50% is that it's an offence punishable by prison (not that they'd send you to jail for a first offence, but it's not a conviction you'd want on your record...) and you wouldn't want to take your insurer's clarification on the offence aspect!

For the reasons above, I don't think the criminal side of things a concern. I don't want to turn this into an epic, so I'm happy to agree to differ on this.

I think that civil liability is 99%+ of the (potential) problem, and that is where one needs to make sure that one's insurance is in place. (Joe Bloggs guest falls off boat and becomes cabbaged. His insurance co. will likely come after you and use every power at their disposal to get a financial contribution to Joe Bloggs' future care). If you haven't got insurance it can be ruinously expensive even to defend a spurious claim. Also, since it's civil law, it'll be decided on 'balance of probabilities' rather than 'beyond reasonable doubt', with proportionate damages(?*) being awarded. I don't believe 'disclaimers' offer much/any protection against this, either.

(I did warn you about the barrack-room lawyer bit, didn't I )

Andy

* I'm not sure if "damages" is the correct term - maybe "award" or "compensation"? I'm not sure.

 

[[2068]]

No, the law says (in para2(1)(a)(i)(aa) to be precise) that a non commercial vessel is "any vessel which at the time it is being used is, in the case of a vessel wholly owned by an individual or indivuduals, used only for the sport or pleasure of the owner or the immediate family or friends of the owner...

I'm not disputing your quote, but I would dispute the interpretation.

If it "pleases" the owner to take out a bunch of strangers for no financial reward, for instance on a "Kids Out" charity cruise up the harbour for no reward, then this ticks all the boxes. Yes?

And anyway, that time I went round Gilkicker point in an F7 was neither sporty nor pleasurable: it was a positioning leg in preparation for a another hop, so that must count as a commercial trip

dv.

 

[jfm]

If it "pleases" the owner to take out a bunch of strangers for no financial reward, for instance on a "Kids Out" charity cruise up the harbour for no reward, then this ticks all the boxes. Yes?

This is answering misterg too, which made similar point. I'd say "no". The policy behind the law is that folks not known to the owner are entitled to be protected by the safety features of coded boats, while friends and family aren't. Like it or not, that's the basic distinction parliament has drawn. If you take a bunch of kids out via an organised charitable outing, and something bad happens, and you weren't coded, the CPS (actually the MCA afaik) would certianly consider prosecuting, as is their duty when a maritime law is broken. They have discretion not to prosecute if not in the public interest, but they might well think kids in this situation ought to be protected by the safety of a coded boat. I admit it's pretty borderline in the kids case

Sure, they may well choose not to prosecute. Or they might prosecute and the court acquits. But for the period they've told you they're contemplating prosecuting and have cautioned you and interviewed you on tape with your solicitor present, and the 6 months of nailbiting waiting for their decision, or for the period you're in court before that acquittal, you'll feel pretty piissed off. In legal stuff, it isn't enough to be acquitted. You want to avoid being in the dock, or threatened with it, in the first place, becuase it's traumatic stuff. That's what I'm warning OP of.

Ref misterg's stuff, friends of friends and 2nd cousins come on your boat in the capacity of friends. MCA wouldn't think it in public interest to pick that fight. Likewise if you lend boat to a friend, and they bring their friends, MCA wouldn't take the point imho. But OP's question is about some unknown people who are DEFINITELY not aboard as friends and have paid for the trip and are entitled to view it as commercial, and OP would clearly be in breach of the strict letter of the law, and frankly my view (and that's all it is) is that MCA would prosecute in those circs. I respect your differing view, but that's where the line would be drawn in my view

I'm not saying the law is sensible or fair. I'm just saying what I think would happen. (and, for record, I'm not a H&S guru - I'm as wide a boy as they come!)

 

[nonitoo]

I don't know if this helps;
I fly and rent a plane. It is common practice in these circumstances to allow the pilot to share the costs among all of those on board, as long as he pays (at least) his fair share. I have never seen the difficulty with liability mentioned in any pilot forum, but that is not to say that it hasn't been.
I pontificate, so a letter from your insurers will mean more than a thousand opinions in here. Please let everyone know how you get on - I think that it is a great idea.

I was advised that it was illegal to fly people who had 'won' the trip and the CAA confirmed that this was illegal at the time (10 years ago). The winners had 'paid' for the trip by their contribution to the charity.

However that would now seem to have changed (see http://www.nats-uk.ead-it.com/aip/current/aic/EG_Circ_2008_W_070_en.pdf )

So it may be similar and now OK for our boats to be used in such a manner.

I would check with your insurers as they are the ones who will be liable in the event of a claim by the 'winners'.

Tom

 

[timgriffin]

I think the whole issue is based on the fact they have to purchase a ticket or bid in an auction to win the prize and it is this that makes it a commercial operation.

consider the following
Insurance might be invalid if you had an accident , MCA would prosecute if you had a accident , prize winners family would prosecute if you had an accident.
The law would pursue you as a commercial operator asking to see certificates of complience for MCA Codes of practice for your boat and of course your qualifications if you have neither oh dear you are in trouble.

JFM is right on his legal quotes i looked them up.

Whatever peoples thoughts right or wrong the law is there to protect us .

My 2p worth
Tim

 

[adey]

The other 50% is that it's an offence punishable by prison (not that they'd send you to jail for a first offence...

This is a very recent case whereby a ferry skipper got 6 months and £8500 in costs because his liferaft was in use after the service was due. Okay he didn't help by changing the service date himself but there wasn't any accident and the liferaft wasn't shown to be technically dangerous.
Imagine if you offer a trip to someone who paid for a ticket, the boat sinks, they die and you don't have any coding. Methinks you'd be showering with 'Big Leroy' for some time.

 

[NickNoBananas]

Thank you all for your contributions, which have been very helpful.
On balance, I have to err on the side of caution. jfm makes a convincing and,to me, conclusive argument, so there won't be a pledge of a trip.
The wife has suggested I bake a cake instead! Hardly the same...

 

[Mr Googler]

Would it be a banana cake???.........opps...... I see you dont have any!!!






Couldnt resist that one....sorry