The first thing that needs to be established is whether the vessel is in commercial use. The law (The Merchant Shipping (Vessels in Commercial Use for Sport or Pleasure) Regulations 1998) does not define a commercial vessel but does define a pleasure vessel.
“pleasure vessel” means–
In this definition “immediate family” means–
in relation to an individual, the husband or wife of the individual, and a relative of the individual or the individual’s husband or wife; and “relative” means brother, sister, ancestor or lineal descendant;
In simple terms, if payment for a vessel owned by an individual or company is being made for use of the vessel beyond a contribution to the direct costs of the specific voyage (i.e., fuel, food and berthing costs but not general maintenance or upkeep) then the vessel is not a pleasure vessel and is subject to the regulations for commercial vessels. If the vessel is owned by a sailing club, then the club can charge its members to use the vessel. It is important however to fully consider all the requirements of the pleasure vessel definition as payment is not the only factor.
In the UK, the use of yachts and other small commercial vessels (SCVs) (having a loadline length of less than 24m) is governed by the Merchant Shipping (Vessels in Commercial Use for Sport or Pleasure) Regulations 1998 Statutory Instrument 1998/2771 which is given power by the Merchant Shipping Act 1995.
Section 5 of these regulations disapply a number of merchant shipping regulations (those normally applicable to large ocean going ships) to those vessels which have been examined and issued with a small commercial vessel certificate in accordance with the Code of Practice for Safety of Small Commercial Motor Vessels; Small Commercial Sailing Vessels; or Small Vessels in Commercial Use for Sport or Pleasure Operating from a Nominated Departure Point, commonly referred to as the Yellow, Blue or Red Code.
A vessel of less than 24m, which does not fall within the definition of pleasure vessel, which hasn’t been examined and issued with a small commercial vessel certificate, is therefore required to comply with the full merchant shipping regulations and it is under those regulations which the MCA would prosecute the owner of a vessel operating commercially without a coding certificate.
The SI does not apply a lower bound size to vessels and therefore it would appear that a 2.4m Optimist being chartered would need to comply with the code as much as a chartered Offshore Racing Yacht.
The Code of Practice for the Construction, Machinery, Equipment, Stability, Operation and Examination of Sailing Vessels, of up to 24 metres Load Line Length, In Commercial Use and which do not carry cargo or more than 12 passengers, commonly referred to as the Blue Code, was originally published in 1993.
Section 28 of the Blue code states
A vessel chartered or operated commercially for the purpose of yacht racing need not comply with the provisions of the Code provided that when racing: -
This exemption does not apply to a vessel taking part in a sail training race or an event created and organised with an intent to avoid the provisions of the code.
Upon first reading this, yacht owners could be forgiven for thinking that this meant they could use their yacht commercially for racing without needing to worry about being coded.
However, as the underpinning statutory instrument (SI 1998/2771) only exempts those vessels which have been examined and issued with an SCV Certificate then a non-coded vessel cannot rely on the exemption in Section 28 of the Blue Code and is required to comply with the various Merchant Shipping Regulations which a coded vessel would be exempt from. In essence, you have to be in the code to be exempted from complying with parts of it.
What this section does permit is for coded vessels to not comply with the specific carriage or manning requirements of their coding provided that they comply with the relevant race rules.
In 2004, the MCA published the Small Vessels in Commercial Use for Sport or Pleasure, Workboats and Pilot Boats – Alternative Construction Standards in Marine Guidance Note (MGN 280 (M)). This was published as being an ‘equivalent standard’ to the colour codes referred to in the Regulations and has become the de-facto standard for coding SCVs since.
Section 28 of MGN 280 refers to vessels operating under race rules and is split into two parts:
The first part allows those vessels which regularly operate commercially and have a coding certificate to not comply with the provisions of the code whilst racing provided:
This section could for instance be used to allow a yacht coded to category 2 (up to 60 nautical miles from a safe haven) to compete in a transatlantic race. However, it is important to note point 4 above would likely prevent the yacht from making the return trip from the race. Firstly, the safety cover afforded by the race would not be in place and secondly the exclusion for transiting directly to and from the race is intended for short transits such as leaving Hamble to head to a start off Cowes not to make an oceanic crossing.
The RYA is aware that the MCA have previously stated the above interpretation is incorrect and a coded vessel cannot operate outside the area to which it is coded. Understandably, this caused significant concern within the industry particularly with many Cat 2 coded vessels looking to undertake the Fastnet. However, the RYA has recently received clarification from the MCA that they are not of the view that a coded vessel cannot operate beyond her certificated area of operation when operating under Section 28.
The second part of Section 28 allows a non-coded vessel to be used commercially for racing provided the vessel has been registered and licensed by a World Sailing Member National Authority (in the UK the RYA). Such vessels also have to comply with the same provisions given above for coded vessels.
This section is intended to facilitate situations where, for example, an overseas team, unable to transport their own boat to an event because of distance, may charter a local, non-coded, boat to enable them to compete and the RYA will not issue a Racing Charter Licence where it is clearly being used to avoid the requirements of the code by a vessel in regular commercial use.
The issuing of a licence by the MNA is the certification which is required by SI 1998/2771 and therefore the issue with non-coded boats not being able to be exempted from the code requirements is resolved.
However, there is an argument that MGN 280 has no legal standing as it was made under Regulation 8 of the SI 1998/2771, which only states the Secretary of State may permit other equipment or machinery to that required by the colour codes and not to make alternative arrangements for other matters covered in the codes such as manning, structural strength and examination requirements. It therefore is possible that a Racing Charter Licence issued by the RYA may not have any legal standing should it come to a trial, however given the MGN 280 is accepted by the MCA as the de facto code and the vast majority of the Sport & Pleasure fleet are currently coded under MGN 280 it would appear unreasonable of the MCA to only seek to apply parts of it.
The exemptions for racing only apply to the code itself and do not apply to other requirements such as the Maritime Labour Convention. Any vessel operating commercially more than 60 miles from a UK safe haven or out with UK waters is required to have undergone an MLC inspection and to meet the MLC requirements for any seafarers onboard.
The further a boat operates from a safe haven, the more risk it is exposed to and the MCA have two definitions of waters; ‘categorised waters’ and ‘at sea’. Categorised waters are areas of sheltered water such as local harbours, lakes and rivers and are classified by increasing risk due to the characteristics of the waters from letter A to D. In these waters local byelaws may apply as to the commercial operation of the boat. At sea, is any waters beyond categorised waters and the Area category is classified by decreasing distance from a safe haven using numbers 0 to6 and in these waters the code applies.
Categorised waters are defined within MSN 1837 (M) and include many areas which are commonly used for racing such as the Clyde, Belfast Lough, the Solent and Cardiff (check the MSN for exact details and for seasonal restrictions).
Before discussing the requirements for commercial vessels operating in categorised waters, it is worth noting that SI 1998/2771 states:
Any reference in these Regulations to “proceeding to sea" includes a reference to proceeding on a voyage or excursion that does not involve going to sea.
The references to “proceeding to sea” within the regulations are that:
Where a vessel has been so examined and a small commercial vessel certificate issued, the vessel shall not proceed, or attempt to proceed, to sea unless:
This means that when a coded boat operates within categorised waters she is still required to comply with the requirements of the code.
The legislative framework surrounding commercial operation in categorised waters is even more confusing than that for operation at sea with local authorities having the power through the Public Health Acts (Amendment) Act 1907, Section 94; or Civic Government (Scotland) Act 1982, Section 38, to enact local byelaws to require commercial vessels to comply with additional requirements. This is sporadic across the country and many local authorities have nothing in place, and some have licensing schemes, but these may often be administered by the taxi office or licensing departments who have no marine expertise. The below requirements are therefore the minimum baseline established by the MCA and in some areas may be enhanced.
MGN 469 covers the applicable safety standards for non-passenger vessels operating solely on inland waterways in the United Kingdom and contains a general exemption for vessels of class IX(A) from the Merchant Shipping (Life Saving Appliances for Ships other than Ships of Classes III to VI(A)) Regulations 1999 and the Merchant Shipping (Fire Protection: Small Ships) Regulations 1998 provided that the meet the requirements for carriage of LSA and FFE, laid down in:
The MCA, in MGN 469, have confirmed that the Inland Waterways Passenger Boat Code (a confusing title given it applies to vessels which carry less than 12 passengers and therefore are not deemed to be passenger vessels) is so approved.
There appears to be no requirement for Class IX(A) vessels to undergo a survey.
The general exemption contained in MGN 469 only covers LSA and FFE requirements and does not extend to manning which for vessels operating on inland waterways is covered by MSN 1853.
In general Masters on non-passenger vessels operating on inland waterways (Class IX(A) vessels) require a Boatmasters’ Licence or Boatmasters’ Certificate. However, MSN 1853 describes alternative qualifications for Masters of Small Vessels in Commercial Use and also details, in annex 2, how some vessels are exempt from the regulations.
Included within the list of exempted vessels is:
Vessels not normally used for commercial purposes, or are only used very occasionally for commercial purposes and, if not so used would be pleasure vessels; for example:
These operations are subject to conditions i-iii
As detailed above the exemption only applies to vessels which are not normally or only very occasionally used for commercial purposes.
Annex 3 of MSN 1853 contains details of alternative qualifications for masters of small commercial vessels and therefore those vessels which do not fall under the exemptions in annex 2.
Of particular interest are the following RYA qualifications recognised for Categories A-D:
All qualifications require a commercial endorsement with 3 months relevant experience and also require evidence of medical fitness through either an ENG1 or ML5. Additional RYA qualifications without commercial endorsement or medical fitness requirements are listed but are limited to categories A & B.These manning requirements are similar to that required under the codes for vessels operating at sea.