Negligence - MCA Coding - RCD (CE) – Prosports - Technical Constuction Files

[Bigmuz7]

Originally Posted by chris123

If they tightened the legislation the Sun et al would be running articles on the meddling Eurocrats and the nanny state

I very much doubt it .. and perhaps you are not taking the op's main points onboard enough. He didnt spend that amount of time and money (and grief) if he didnt feel strongly about the subject.. as I also do, too.

Running a business myself, I'm well aware of what over regulation can do, It is very clear however, that in the case outlined in the thread and including my own case, the regulations are there already, but they are not specific enough, and are not enforced effectively.

There is a 'blind spot' that allows manufacturers to operate unsupervised, and this is unacceptable for the safety of individuals who end up buying these boats through no fault of there own, because they are not in posession of the full facts

[chris123]

Originally Posted by Cookee

In theory if the CE marking on other Prosports Ribs isn't correct, then they could be confiscated and the owners even fined, although this is extremely unlikely as it seems that the powers that be only get involved if there is an accident or a court case.

If an owner has bought a 'CE marked' boat in good faith, I'm not sure what legislation exists for him to be fined if the CE mark proves to be invalid for any reason?

If the owner were a commercial organisation then it could be under H&S / duty of care rules, but for a private individual?

Would the confiscation be covered by CE Directives, or other legislation?

It is certainly the case for Machinery, EMC and Low Voltage directives that the powers that be operate a 'complaints driven' policy on dealing with CE mark compliance, I would assume RCD is the same.

[Poly]

Originally Posted by chris123

If an owner has bought a 'CE marked' boat in good faith, I'm not sure what legislation exists for him to be fined if the CE mark proves to be invalid for any reason?

if the boat was bought in the EU you are probably correct. If it was an import then the buyer may be the person responsible. (Although in this case the judge agreed that Prosport were responsible).

If the owner were a commercial organisation then it could be under H&S / duty of care rules, but for a private individual?

if it were commercial it wouldn't need coding.

Would the confiscation be covered by CE Directives, or other legislation?

see below.

From here: http://www.hants.gov.uk/regulatory/t...htbrokers.html

Sanctions

For an offence under the RCD, the person responsible for first placing the craft on the market or taking it into service the maximum penalty for breaching the RCD is 3 months imprisonment or a £5000 fine. This applies equally to private individuals and those in business. Although a prosecution must be brought with one year from the date of the offence there are other processes which can be invoked on the discovery of a non-compliant or falsely CE marked craft.
For some offences under the GPSD the penalties can be up to a £20,000 fine and up to 12 months imprisonment.
Where other action is also taken such as product recalls, warning and marking notices the costs recovered from the business if necessary.
These and other regulations give Trading Standards Officers in the UK, and any other authorised person in the EEA wide powers. These include the power to suspend, seize and apply for their forfeiture in order to take them off the market. Trading Standards Officers also have powers to enter premises, examine paperwork and goods to check that recreational craft do comply with the regulations.
These powers can be exercised whether or not an individual is prosecuted.

[chris123]

Originally Posted by Bigmuz7

There is a 'blind spot' that allows manufacturers to operate unsupervised, and this is unacceptable for the safety of individuals who end up buying these boats through no fault of there own, because they are not in posession of the full facts

The thing is though, that (rightly or wrongly) self certification is a central part of most aspects of CE certification, not just the RCD.

Remove the self certification option and costs would I suspect increase dramatically. Choice would also go down - if you want non standard seating layouts / engines / fuel tank layouts / electrical fitout it would impact on the design and could therefore affect the certification.

Would it be a price worth paying? Possibly, but would it not be putting an onerous duty onto conscientious manufacturers who already abide by the current rules?

[chris123]

Originally Posted by Polwart

if the boat was bought in the EU you are probably correct. If it was an import then the buyer may be the person responsible. (Although in this case the judge agreed that Prosport were responsible).
if it were commercial it wouldn't need coding.
see below.

From here: http://www.hants.gov.uk/regulatory/t...htbrokers.html

I may be misreading it, but it still seems to me to tie up with my experience of other CE directives - ie, it is not the owner who is normally liable, but the person 'putting it on the market or into service' in the EEA - that is the manufacturer or importer. I assume however if the owner imported it himself, he could be liable, but only if the boat was not advertised for sale in the EEA (which is all that has to happen for it be considered as 'put on the market').

It also seems to be geared up around trading standards - the quote refers to having the power to take a non compliant boat 'off the market' which I take to be different to seizing a boat from an owner in the normal course of events.

[Poly]

Originally Posted by chris123

the quote refers to having the power to take a non compliant boat 'off the market' which I take to be different to seizing a boat from an owner in the normal course of events.

...the power to suspend, seize and apply for their forfeiture in order to take them off the market...

although I think in most cases you are probably right and you would simply be unable to resell the boat

[Bigmuz7]

Originally Posted by Polwart

although I think in most cases you are probably right and you would simply be unable to resell the boat

Correct Which leaves a very few options open to you about how you deal with the issue ! Now thats a whole debate in its self. Taking legal action against the manufacturer is very costly as has been proven in this thread, and is one way of dealing with it,and in the end could be worthless, but there are others.

[Poly]

Originally Posted by Bigmuz7

Correct Which leaves a very few options open to you about how you deal with the issue ! Now thats a whole debate in its self. Taking legal action against the manufacturer is very costly as has been proven in this thread, and is one way of dealing with it,and in the end could be worthless, but there are others.

Actually the legal action in this case wasn't against the manufacturer (as it would be pointless) but against the surveyor who will at least be insured professional indemnity. Did you ever raise your issue with Trading Standards? Whats was their response? If no one ever complains to T.S. about RCD issues you can hardly blame them for being disinterested in proactive enforcement.

[Bigmuz7]

Originally Posted by Polwart

Actually the legal action in this case wasn't against the manufacturer (as it would be pointless) but against the surveyor who will at least be insured professional indemnity.

I was aware of that,.. I generalised. But I did make the point earlier too that there is no point suing the manufacturer if all that would happen is they just close the doors.

Originally Posted by Polwart

Did you ever raise your issue with Trading Standards? Whats was their response? If no one ever complains to T.S. about RCD issues you can hardly blame them for being disinterested in proactive enforcement.

No.. I resolved my case by other means, as you can see if you read my posts elsewhere.

Again if you read my posts elsewhere, I have never blamed T.S. for being disinterested, since .. I never reported it.

Sure .. I'm annoyed people can get away with it, but to my mind, understanding the nature of the issue first, is a precursor to taking action to remedy it.

The crux of my postings have been about the lack of understandings of the CE systems and its flawed implementation. I didn't know enough about either, to make an informed case back then, and sought to open the issue in a place such as this, to allow others to gain some insight, and perhaps offer further knowledge as to how these predicaments arise, and 'then' how they can be dealt with, so perhaps in future, others may have some more searching questions to ask their builder or dealer, rather than just taking their word for it, or accepting that just because it has a CE sticker on it, everything will be alright.

As I have aready said, I am grateful to the OP for taking this case all the way and highlighting it here, not all of us have the resolve or money to do that

[ClassyBoats]

Originally Posted by Polwart

Actually the legal action in this case wasn't against the manufacturer (as it would be pointless) but against the surveyor who will at least be insured professional indemnity. Did you ever raise your issue with Trading Standards? Whats was their response? If no one ever complains to T.S. about RCD issues you can hardly blame them for being disinterested in proactive enforcement.

Yes, this High Court action was against the surveyors. With a manufacturer outside UK, there was always a good chance that the manufacturer would not be fully conversent with the rules. Hence, getting reputable UK surveyors to look after our interests. We even warned them that we thought that Jason Norman's (ProSports) knowledge about compliance was shakey or non existent.

When a (as it turns out dodgy) "CE Plate" was eventually fitted, we flagged up that it seemed to look different to other CE Plates and asked our surveyors to make absolutely sure all was in order. In court, the surveyor said that he did not know that the plate fitted and paperwork did not comply in several essential aspects of the RCD!!!!!!! If a surveyor does not know what a CE plate should look like or doesn't bother to look if there is one, there is little hope for the rest of us - and hardly surprising that some manufacturers don't care.

If he goes on to base his MCA Coding of the boat to carry passengers based on assumed CE compliance the situation is dire.

We did go to Trading Standards for Hampshire (where offence took place). They took the view that any possible criminal prosecution was "not in the Hampshire ratepayers interests". So much for any pro-active enforcment!

It looks as though everyone in the industry is willing to put the telescope to the blind eye.