Interaction with MCA

brucehawsker · 16 May 2018, 13:32

Has anyone any experience of MCA asking questions about a the quasi commercial nature of how they find boat buddies to share fuel costs?

Last Tango · 16 May 2018, 13:39

If there's no element of profit then it's not commercial....simple.

willk · 16 May 2018, 15:00

Quote:

Originally Posted by brucehawsker

Has anyone any experience of MCA asking questions about a the quasi commercial nature of how they find boat buddies to share fuel costs?

Welcome back Bruce.

https://assets.publishing.service.go...re-vessels.pdf

Section 1.1 ii

If there's any money left over from that voyages "expenses", it's commercial. After that it's a matter of do you get caught or not

Pikey Dave · 16 May 2018, 15:13

In my experience of owning boats, you'd have to be charging a heck of a lot more than fuel costs just to break even, never mind make a profit[emoji849]

Gynner · 18 May 2018, 03:23

....and if in the US - must also consider the Jones Act.

Searider · 18 May 2018, 09:44

Quote:

Originally Posted by Last Tango

If there's no element of profit then it's not commercial....simple.

Not really. Just because a business makes a loss doesn't make it not commercial. It's just an unsuccessful business.

Last Tango · 18 May 2018, 10:51

This is explicitly covered by MGN280

We are not talking about a business making a profit, the reference is to the individual voyage. ie you can share fuel costs. (I think from memory that specific example is given in MGN280) Provided you are not profiting from the voyage it is not deemed as a commercial trip. Obviously this could be abused but I think the OP's situation couldn't be interpreted as a "profit making venture".

Poly · 18 May 2018, 14:22

Quote:

Originally Posted by Last Tango

This is explicitly covered by MGN280

It is - but it makes no mention of profit*!

The way MGN280 (or more importantly the legislation it is based on) is constructed is that MGN280 (coding) does not apply to pleasure vessels. Pleasure vessels must be on a "free voyage". The definition of free voyage is explained further but the relevant bit is:

(c) the owner of the vessel engaged in the voyage or excursion may only receive -
(i) money** for, or in connection with, the operation of the vessel or the carrying of any person in the vessel as a contribution to the direct expenses of the operation of the vessel incurred during the voyage or excursion,

That was all referred to in the link Willk posted much earlier so not sure why it is still being debated!

* MGN280 does refer to profit but only with respect to members clubs.
** It also covers the possibility that someone provides goods or services not just money - so don't be thinking there is a dodge where someone buys 200L of fuel for a 5 minute trip!

Quote:

Obviously this could be abused but I think the OP's situation couldn't be interpreted as a "profit making venture".

I don't think anyone was disputing that what Bruce seemed to describe is within the realms of "pleasure use" but it has nothing to do with whether you are a profit making venture.

The other part Bruce would need to satisfy himself with, is the requirement that a pleasure vessel must only be used for "the sport or pleasure of the owner or the immediate family or friends of the owner". Now I don't know what Bruce meant by: "how they find boat buddies to share fuel costs"... if he means can a couple of good friends offer to share the costs of a trip, then clearly that is OK, but Bruce has been around for a long time and I expect knows that, and moreover knows that people here would give an informed answer with a link to the regs. Now I wonder if Bruce is actually thinking more along the lines of "Wingly" a sort of "uber like" flight sharing service for private pilots. The CAA have agreed that IS acceptable (with certain conditions https://publicapps.caa.co.uk/docs/33...20guide_v2.pdf). Would the MCGA take the same view? I'm not convinced because the marine legislation has that "friends and family" wording. It would ultimately be for the owner to convince the court that someone they met via an online app was a "friend".

BRUCE - FWIW I had a really useful discussion with the local regulatory office of the MCGA in relation to a marine venture that I was kicking about in my head at one point. Like all regulatory people they don't like to be backed into a corner or find themselves being quoted, especially our of context, but will explain processes or answer specific questions.

willk · 18 May 2018, 15:40

Quote:

Originally Posted by Poly

It would ultimately be for the owner to convince the court that someone they met via an online app was a "friend"....

Explains why your Christmas card to me never showed up again this year!

brucehawsker · 21 June 2018, 09:52

I want to say thank you to everyone who replied to this. I had a visit from two people from MCA and one from local council (unannounced) to the boatyard when I was about to go out. They interviewed me and one of my friends who was going out with me. I have heard nothing since. I hope this has now gone away. When i go out with friends - however they may find me - I charge consumables (petrol and a notional amount for Optimax oil) and any mooring fees as visitors. We go dutch on lunch. Typically the cost of a day is £120 so with three friends at me, it works out at £40 each. Cash. Simple. I think both MCA and local council are happy i am not running a commercial enterprise, but we will wait and see if I hear any more....

willk · 21 June 2018, 11:20

Quote:

Originally Posted by brucehawsker

...When i go out with friends - however they may find me....
.....I think both MCA and local council are happy i am not running a commercial enterprise, but we will wait and see if I hear any more....

That reads as though you may be meeting new friends through social media/internet solely for the purposes of splitting the costs? No foul IMO.

That said, it also sounds as though someone may have dobbed you in to the Powers That Be, that or some jobsworth spotted your "ad". Once the economics were clarified then the PTB lost interest. The complainer may not be satisfied, especially if some of your new "friends" are potential clients in their eyes.

brucehawsker · 25 June 2018, 15:04

I spoke too soon. This has come back with a vengeance.

Has anyone had experience of receiving a Notice of Prohibition from the MCA? I am writing to them to ask to continue dialogue, but their initial offer is arbitration which is going to cost £2,500 which is not affordable.

They are asserting I am advertising on social media - without any detail of this supposed advertising. I have asked them to be specific about their accusation. They have not been to date - just that "they have been informed". I am using Next Door as a scheduling tool for my group of friends to coordinate day trips. I suppose they think this advertising - i can't think of anything else i have done wrong....

They are suggesting that 1) my boat needs commercial coding - with all that that implies - and 2) that my taking friends or friends of friends out (who may have originally introduced themselves over the web) means that they are risking "serious personal injury". I think I have in the past 12 months taken out at most 10 different people who were not family or friends of at least 3 years prior standing. We are mainly over 60, do not go fast, and go out for a morning followed by a pub lunch. Typically consume 40-80 l of fuel. Share fuel, mooring costs plus a fiver for Opti oil between all of us including me.

This seems a sledge hammer to crack a nut, especially as I have tried to comply with their wishes and withdrawn completely from a local FB popular membership group from whence the trouble first appeared.

Any advice? I am really upset by this.....

Pikey Dave · 25 June 2018, 16:14

Is the notice just a cease & desist or are they prosecuting? If it's just a stop what you're doing, then move your activities to a private platform such as WhatsApp or a closed Facebook group. The fact that your activity is in the public domain could be construed as advertising even if it's not.

Poly · 25 June 2018, 16:57

Quote:

Originally Posted by brucehawsker

Has anyone had experience of receiving a Notice of Prohibition from the MCA? I am writing to them to ask to continue dialogue, but their initial offer is arbitration which is going to cost £2,500 which is not affordable.

Bruce that is interesting. You've managed to really upset someone. It may be no coincidence that the Notice came through only after you posted publicly on here. What does the Notice actually prohibit? What is the purpose of the arbitration - to challenge the notice or to resolve any claimed case prior to the notice? Its unusual for arbitration to specify a cost - where did that come from? Who pays the arbitration cost - both parties or the losing party?

Quote:

that my taking friends or friends of friends out (who may have originally introduced themselves over the web)

FoF may be part of the issue. The rules says "immediate family or friends". Ultimately it would be for a court to decide if the people on your boat are really friends*. If the first time you meet them is at the pontoon, you don't know much about them, or if they turn up late you don't bother chasing them up - you may find that harder to convince them. If you have not remained in contact with those people after their single trip on your boat, and have had no interaction with them other than for the purpose of the trip it might be harder to imagine that they are what the conventional meaning of friend describes. Equally if you ask people to sign anything (like a disclaimer, or relating to payment) then that doesn't seem, prima facie, like a typical friendship relationship. Similarly if you use words online to describe agreeing the dates like "book a place" or "reserve your seat" even if that is just the default language in Next Door (I don't know it) then you probably aren't helping your cause.

Quote:

I think I have in the past 12 months taken out at most 10 different people who were not family or friends of at least 3 years prior standing. We are mainly over 60, do not go fast, and go out for a morning followed by a pub lunch. Typically consume 40-80 l of fuel. Share fuel, mooring costs plus a fiver for Opti oil between all of us including me.

Those 10 people are the ones you need to be most concerned about. Do you have their contact details so you could call them as defence witnesses. Would they, under oath, answer a prosecution barrister with a simple "Yes", when asked "Is Mr Hawkster a friend of yours?"

Quote:

This seems a sledge hammer to crack a nut, especially as I have tried to comply with their wishes and withdrawn completely from a local FB popular membership group from whence the trouble first appeared.

mmm... a sledgehammer would have been straight to prosecution.

Quote:

Any advice?

Do you have legal protection on your house/car/boat policy? I'd be finding myself someone that specialises in marine law. Or if you are certain you are compliant just carry on, and then deal with the fall out if they decide to pursue.

*As a crude distinction, I'd say that for even my least close friends, I can tell you their First and probably Last names, a reliable method of contacting them like: phone number or email address (usually both), the town where they live (although not necessarily the street), something about their family (like if they live alone, with someone, have kids, not necessarily if they are married, or the wife/childrens name), their job/employer, how we first met, and vice-versa they can do the same about me. There is nothing to stop you making friends on the internet and then inviting friends onto your boat - but its not quite the same as canvassing people to come on your boat who may eventually become friends.

Pikey Dave · 25 June 2018, 18:43

Quote:

Originally Posted by Poly

Bruce that is interesting. You've managed to really upset someone. It may be no coincidence that the Notice came through only after you posted publicly on here. What does the Notice actually prohibit? What is the purpose of the arbitration - to challenge the notice or to resolve any claimed case prior to the notice? Its unusual for arbitration to specify a cost - where did that come from? Who pays the arbitration cost - both parties or the losing party?

FoF may be part of the issue. The rules says "immediate family or friends". Ultimately it would be for a court to decide if the people on your boat are really friends*. If the first time you meet them is at the pontoon, you don't know much about them, or if they turn up late you don't bother chasing them up - you may find that harder to convince them. If you have not remained in contact with those people after their single trip on your boat, and have had no interaction with them other than for the purpose of the trip it might be harder to imagine that they are what the conventional meaning of friend describes. Equally if you ask people to sign anything (like a disclaimer, or relating to payment) then that doesn't seem, prima facie, like a typical friendship relationship. Similarly if you use words online to describe agreeing the dates like "book a place" or "reserve your seat" even if that is just the default language in Next Door (I don't know it) then you probably aren't helping your cause.

Those 10 people are the ones you need to be most concerned about. Do you have their contact details so you could call them as defence witnesses. Would they, under oath, answer a prosecution barrister with a simple "Yes", when asked "Is Mr Hawkster a friend of yours?"

mmm... a sledgehammer would have been straight to prosecution.

Do you have legal protection on your house/car/boat policy? I'd be finding myself someone that specialises in marine law. Or if you are certain you are compliant just carry on, and then deal with the fall out if they decide to pursue.

*As a crude distinction, I'd say that for even my least close friends, I can tell you their First and probably Last names, a reliable method of contacting them like: phone number or email address (usually both), the town where they live (although not necessarily the street), something about their family (like if they live alone, with someone, have kids, not necessarily if they are married, or the wife/childrens name), their job/employer, how we first met, and vice-versa they can do the same about me. There is nothing to stop you making friends on the internet and then inviting friends onto your boat - but its not quite the same as canvassing people to come on your boat who may eventually become friends.

Good call on the legal protection, I have marine legal on the boat insurance.
This has got to be a very grey area & open to interpretation. When I was heavily into diving we had a "hard core" of 2or3 in the boat & I'd often get asked by one of the lads "can I bring a mate along to make up the numbers" I very rarely said no even though I may have never met "the mate". It never occurred to me that I'd be in the wrong. I wasn't running a business & certainly wasn't making a profit.
If I was Bruce, I'd take a very hard & brutal look at what I was doing & ask myself "Am I trying to pull a fast one & am I acting within the spirit of the law?" If the honest answers are no & yes, then personally I'd be tempted to ignore the MCA & tell them that if they are so sure of their case, issue against me. If Bruce can stand up in court and with hand on heart say "these are my friends" then the MCA has no case as I see it. Obviously I'm only a barrack room lawyer & in no position to give professional advice, but I am the man on the Clapham Omnibus.

Xk59D · 25 June 2018, 18:48

If the MCA say this is a business then using legal protection via insurance may be difficult as I assume it won't be a commercial policy the OP has.

If you do use legal cover and the court rules against you then you may be liable for your legal fees as your policy at that time is void.

Worth a few phone calls to your insurers for some advice for sure.

Pikey Dave · 25 June 2018, 19:53

The MCA can say what they like, they have to prove it.

Xk59D · 25 June 2018, 20:08

They don't have to prove anything to put a stop to it, the threat of action has already had that effect for the cost of a stamp in this case.

The OP will need to call his insurance and ask about legal cover if they have it and they will ultimately decide on if they will take it on was the point. I was also suggesting to be careful as if you lose then your original policy is void unless commercial so the OP may lose twice!

Pikey Dave · 25 June 2018, 20:35

Quote:

Originally Posted by Xk59D

They don't have to prove anything to put a stop to it, the threat of action has already had that effect for the cost of a stamp in this case.

They only prohibit him from doing something that he was doing. If he wasn't operating commercially to start with, they can't stop him from doing so, ergo the prohibition notice is worthless. Obviously this all depends on what Bruce was actually up to & the subsequent wording on the notice. Without that knowledge we're guessing.

Xk59D · 25 June 2018, 20:49

They quite clearly think they have grounds to believe he was operating commercially, doesn't matter what you, I or anyone else thinks...ergo there would be no letter nor visits from council or MCA in first place.

The point I'm making simply is IF you claim insurance and you lose it would be wise to ask the insurance before using them what happens. legal fees may pi$$ all over the 2500 quid they already want.