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

[ClassyBoats]

A reputable and well known firm of Marine Surveyors was recently found to have been “negligent and lackadaisical” in a three day trial in the High Court (Queen’s Bench Division of the Technical and Construction Court in London).

The Court awarded the full amount of a claim against the surveyors, amounting to the full purchase price of the RIB in question, as well as full legal costs and interest.

This case, in many ways, was a re-run of the “Big Yellow” saga. Indeed, Big Yellow featured in much of the evidence at the trial. Big Yellow was a Coded RIB which catastrophically broke up in an accident off Cornwall in 2005 and was the subject of a searching Marine Accident Investigation Branch (MAIB) Report.

The evidence given at this High Court trial, which concerned a brand new Prosports RIB, showed that there are still plenty lessons to be learned – in fact, it appears that nothing has been learnt from the near disaster with Big Yellow.


The main points in the trial were:

1. This all came to light after the RIB’s transom failed, after less than 30 hours use.
2. The Surveyors had been negligent when they assured their clients that the RIB was RCD compliant and was built to a standard that it could be MCA Coded.
3. They made the mistake of assuming that it was a “standard boat”. The Court strongly disagreed.
4. The Surveyors compounded the problem by not noticing (or certainly not reporting) that the CE Plate, Hull Identification Number (HIN) Declaration of Conformity and Operators Manual were all non-compliant, flawed or inadequate.
5. The numbers on the HIN and Declaration of Conformity did not even match.
6. They relied on what they assumed was RCD compliance through meeting ISO 6185-3 to say that the RIB was safe for Coding. This was wrong and a repeat of the Big Yellow mistake.
7. They asked to inspect the builder’s Technical Construction File (TCF) but then failed to follow up on this. The Judge thought they should have insisted on inspecting it. It seems unlikely, in this case, that there was ever a TCF.
8. David Greening (YDSA Surveyor specialised in Coding/RCD matters) gave expert evidence based on his observations and those of David Cox that the boat’s construction was inadequate and did not even conform to the lay-up schedule, which had apparently been used by Prosports, the manufacturer.
9. He said that to be a “standard boat” you need a proven design, a detailed build specification and quality control procedures to show that the boat is built to that design and specification. The TCF is meant to evidence all this. The Judge praised Mr Greening for the clarity, detail and perceptiveness of his evidence.
10. The Judge, in finding the original Defendant Surveyors had been negligent and in breach of their duty of care, was critical of their defence saying that it had been arrogant, had failed to properly address the issues and had attempted to stone-wall their former clients, who had been left with an un-usable and almost valueless boat.
11. Several times, the Judge expressed incredulity at the Defence’s claims that they did not seem to believe that their work implied a care for safety. The Judge though safety was fundamental ---- as most boat owners/users would.

Some reflections:

12. First - Prosports appear to have produced a RIB that could not be shown to be complaint. Serious doubts were expressed at the trial about the Prosports’ design and build. Prosports was at the time owned, managed and run by Jason Norman, in Guernsey. Jason Norman is (or was) the coxswain of the St Peter Port RNLI Lifeboat!
13. Second – hopefully this will be another wake-up call to Trading Standards (responsible for RCD compliance), The MCA (Coding), Marine Surveyors and boat owners. The sea is dangerous enough in itself, without being put at un-necessary additional risk by those who should know better. MCA Coding of Commercial boats and RCD compliance on those used for pleasure are designed to keep us safe.
14. Thirdly – remember that the CE plate rules are complicated and the plate on your boat may only indicate that the builder has “self-certified” that the boat meets RCD acceptable standards. You still depend, in this case, on that builder’s integrity and judgment. This is the argument for employing the Marine Surveyor who should bring a critical and expert eye to see that things are as they should be. While this did not help in this particular case, it should have done so.
15. Fourthly – Hopefully there will be a wake up call in the industry that the TCF is an essential document.
16. And finally -- these are not trivial matters. Boats (a few exceptions) built after 1998 without a proper CE Plate, a proper Declaration of Conformity, and a proper Owner’s Manual are illegal if used for recreational purposes. Putting such a boat on the market could get you a prison sentence or a heavy fine. Insurers may use non-compliance as a reason for rejecting subsequent claims.

[gtflash]

i thought big yellow was a ferryman??? cant have been! who was the yellow rapier design that delaminated?

[Nos4r2]

Originally Posted by gtflash

i thought big yellow was a ferryman??? cant have been! who was the yellow rapier design that delaminated?

Big Yellow was a Ferryman.

[ClassyBoats]

Yes Big Yellow was indeed a Ferryman. By coincidence, I understand a very similar hull shape to that used by Prosport.

The similarity of this saga to Big Yellow is however because the same mistakes were made by the Surveyors in both cases assuming it must be OK for Coding because they assumed it must be a "standard boat" and must be OK because there were other Prosports boats around -- and some had even been Coded! Anyone else with a Prosports boat may be asking some searching questions in terms of compliance.

After the judgment in this case, the High Court has now set in public stone - ie case law (first time?????) several clear guidelines and standards - including that the Coding surveyors should have seen the Technical Construction File - or if this was not available found some other way to confirm that the boat they were coding had been properly designed and built.

It has also made clear that Surveyors can't get out of responsibility for properly checking Recreational Craft Directive (RCD/CE plate) compliance.

[bedajim]

Originally Posted by ClassyBoats

Anyone else with a Prosports boat may be asking some searching questions in terms of compliance.

So who owns a Prosport

[John Kennett]

The full judgement is available on-line here: http://www.bailii.org/ew/cases/EWHC/TCC/2008/1518.html

John

[Brian]

Hmmm.
Some other Prosport owners on here seemed to have gone very quiet.

[Erin]

Originally Posted by bedajim

So who owns a Prosport

Not any more

[codprawn]

Originally Posted by Brian

Hmmm.
Some other Prosport owners on here seemed to have gone very quiet.

Not at all.

I do find it rather suprising that some people may be revelling in others misfortunes..............

My dealings with Prosport left rather a lot to be desired. Of course I didn't know this until I had dealings with them by which time it was rather too late. They ripped me off for a £3,000 trailer which I had paid for and that is not forgotten easily.

To compare a Prosport to a Ferryman because they had "a similar shaped hull" is totally ridiculous - so do Revengers.

The Ferryman had almost no stringers or any other kind of internal hull structure. My Prosport has massive internal structure.

Whilst my boat was left rather rough around the edges on some minor finishing points the overal build is very solid.

Whilst I agree the whole RCD thing and the industry in general needed tightening up I suspect that it is nothing more than making sure all the paper work is in order. Just because ONE of a companies boats is in order will NOT stop this kind of thing happening again. Bad workmanship will still happen and has happened on even some quite well respected makes as has been seen on this site several times.

I suspect that the ruling will hurt more people than it helps. I am totally against the whole CE thing anyway - how a 9m boat can be classified for the same sea conditions as a 3.1m is beyond me.

It's not only with boats though - everything sold in Europe is supposed to have a CE mark and if it isn't it's deemed unsafe. That means our nice shiny American propellors are total crap and we must ditch them NOW - and if trading standards found out they would take them off us!!!

[timw]

Originally Posted by Brian

Hmmm.
Some other Prosport owners on here seemed to have gone very quiet.

A rather smug post.

[Erin]

Hmmm. Seen his before somewhere!

http://www.rib.net/forum/showthread.php?t=9540

[Poly]

Originally Posted by codprawn

It's not only with boats though - everything sold in Europe is supposed to have a CE mark and if it isn't it's deemed unsafe. That means our nice shiny American propellors are total crap and we must ditch them NOW - and if trading standards found out they would take them off us!!!

Factually innacurate. Only products falling within the 20 product directives can be CE marked. And unless a prop falls under the category of "machinery" then it would not be applicable.

[Poly]

Originally Posted by codprawn

To compare a Prosport to a Ferryman because they had "a similar shaped hull" is totally ridiculous - so do Revengers.

but thats not what he said, he said by coincidence they have a similar hull. the comparison was to the way that the survey work was innadequate.

[codprawn]

Originally Posted by Polwart

but thats not what he said, he said by coincidence they have a similar hull. the comparison was to the way that the survey work was innadequate.

To me it seemed to be implying that the hull was of a similar standard and I am sure most people read it the same way!!!

[jwalker]

Originally Posted by Polwart

.... he said by coincidence they have a similar hull.

Is that similar in style, materials, build quality, colour, internal structures, ....? It could mean anything so it's meaningless.

[Bigmuz7]

An 'all too' familiar story to me...

Originally Posted by ClassyBoats

13. Second – hopefully this will be another wake-up call to Trading Standards (responsible for RCD compliance), The MCA (Coding), Marine Surveyors and boat owners. The sea is dangerous enough in itself, without being put at un-necessary additional risk by those who should know better.

Its the boat builders who should know better most of all !!

Originally Posted by ClassyBoats

14. Thirdly – remember that the CE plate rules are complicated and the plate on your boat may only indicate that the builder has “self-certified” that the boat meets RCD acceptable standards. You still depend, in this case, on that builder’s integrity and judgment. This is the argument for employing the Marine Surveyor who should bring a critical and expert eye to see that things are as they should be. While this did not help in this particular case, it should have done so.

Assuming also that at no point in time could the surveyor ever be in the pocket of the builder. In the case of my own transom failure, my boat was CE marked, .. so which surveyor did the maths on it, that passed it I wonder ?? .. you get my point ?

Originally Posted by ClassyBoats

15. Fourthly – Hopefully there will be a wake up call in the industry that the TCF is an essential document.

Couldnt agree more and it should be available to everyone most of all the buyer, you wouldnt need to be too technical to spot the huge differences in underfloor construction for example to see which are the weak built boats !! Buyers should be more aware of the fact that this type of document exists, and shouldnt be afraid of asking for it.

Originally Posted by ClassyBoats

After the judgment in this case, the High Court has now set in public stone - ie case law (first time?????) several clear guidelines and standards - including that the Coding surveyors should have seen the Technical Construction File - or if this was not available found some other way to confirm that the boat they were coding had been properly designed and built.

This is too retrospective IMO and in bold 'is' the 'fudge' .. all manufacturers should be forced to produce a TCF Doesnt the RCD state that that should be the case ?

Originally Posted by codprawn

The Ferryman had almost no stringers or any other kind of internal hull structure. My Prosport has massive internal structure.

Indeed .. my Northcraft had nout but 2 strigers from stem to stern, utterly pathetic for an 8.5m boat, no wonder it went the way it did. Getting what you paid for is not the point. As the OP stated, this is a serious business and builders should not be allowed to get away with this blatant under engineering to generate company profit, at peoples safety expense

[Poly]

Originally Posted by jwalker

Is that similar in style, materials, build quality, colour, internal structures, ....? It could mean anything so it's meaningless.

JW - the original post said "similar shape". I assumed it meant they both splashed the same original

[ClassyBoats]

To clarify - the comment about the similar hulls only referred to the hull shape and the coincidence that the Ferryman and Prosports used a similar very sea-kindly shape.

In this case, after the transom failed and it became obvious that there were problems, it was impossible to ascertain whether other parts of the structure were properly designed/specified - and expert evidence from David Cox (who was also the expert used in the MAIB in the investigation of Big Yellow) indicated serious doubts about the adequacy of the lay-ups and structure of stringers and bulkheads.

In the absence of any evidence of quality control, it was also impossible to say that any other Prosports RIB was built to the same design/specification.

The Trial Judge concluded that the many warning signs had been missed and that the surveyors had not done a proper job. This is the significant similarity to Big Yellow. The worrying aspect is not that mistakes were made (anyone can make mistakes) but rather that they genuinely did not believe that looking out for these warning signs or investigating when there was inadequate information should even be part of the job.

[Poly]

I am intrigued. In this case the buyer seems to have engaged the services of a specialist marine surveyor. This was probably very fortuitous as it turns out.

How common is it for the buyer to employ a surveyor when buying a brand new RIB?

Was this only done because the RIB was being built outside the EU? i.e. had it been a UK builder would the buyer have trusted the RCD system itself?

Do people usually employ surveyors on 2nd hand ribs? I think it is more common on yachts - but perhaps that is higher value and driven by the finance company requirements.

Actually I think the important lesson here is to use a professional surveryor as - even if they cock up their role - the courts will offer you protection which will presumably end up being paid by the defendants professional indemnity insurance whereas a claim against prosport would probably have just forced the owner into bancrupcy and the buyer looses out.

[jwalker]

Classy Boats, would you like to identify youself, your particular interest in this and indicate the reasons for your posting this on Ribnet. Given that you presently have only three posts to your name, you must have reason to publicise this case.

As an aside, Codprawn's Prosport build is on Ribnet, including a number of pictures, and the build appears to be satisfactory. Although there was suspicion by some forum members at that time that documents were not likely to be forthcoming if required.