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Where does your Sailability site sit within the law?

25 Oct 19
 

For the vast majority of us going afloat is a great escape from the trials and tribulations of everyday life. But, when we start offering some form of boating activity for others rather than for ourselves we risk inadvertently crossing a line from being an unregulated activity to being one subject to regulation.

In the context of Sailability group/club activities the two areas to be most aware of are:

  • Commercial Vessel Regulations, and
  • Adventurous Activity Regulations.

Commercial activity

Commercial activity and commercial vessels are defined and regulated by maritime law. Pleasure vessels are also defined by maritime law, but these are exempt from the regulations covering commercial activity. If the use of your vessel falls outside the pleasure vessel definition you are required to comply with relevant regulations.

There is a common misconception that a charitable activity is not commercial. Another misconception is that payment for an activity is determinative of whether the voyage is commercial or not. However, whilst payment for an activity is a consideration it is not the key defining element. In other words, although your clients may not be paying for the trip it may still be classed as commercial.

Pleasure activity

To identify whether your activity is pleasure or commercial you need to consider whether the use of the vessel comes within the definition of a pleasure vessel. The definition can be found in the underpinning statutory instruments and covers three categories of ownership. Let’s break this down a little. 

A privately owned boat is a pleasure vessel if at the time it is being used it is:

  1. used only for the sport or pleasure of the owner and the immediate family or friends of the owner; and
  2. the owner receives no payment other than a contribution to direct expenses incurred during the voyage.

The contribution to direct expenses is usually taken to be splitting or contributing towards the cost of fuel and/or consumables used during the voyage, not a set fee (no matter how small) nor a fee to cover wear and tear.

A boat owned by a club (or on behalf of a club) formed for sport or pleasure is a pleasure vessel if at the time it is being used it is:

  1. on a voyage only for the sport or pleasure of members of that club or their immediate family, and
  2. any charges are paid into club funds for general use

Clubs can charge a fee provided this goes into the general funds of the club. Note that there are no friends allowed on board!

To fit within this definition the relationship of those on board must be members of the club in question or their immediate family. Temporary membership is an option. However this would need to be genuine membership for a period of time greater than the period of the activity, not just for the duration of the voyage, for this to be be seen as a valid membership.

Note also that the definition requires the purpose of the club is for sport or pleasure. If you are an organisation that has some other stated purpose you may not be able to rely upon this exemption from commercial regulations. 

The final category is a boat owned by a corporate body. A vessel is a pleasure vessel if at the time it is being used it:

  1. is on a voyage only for sport or pleasure and the persons on board are employees or officers of the corporate body, or their immediate family or friends; and
  2. the owner receives no payment other than a contribution to direct expenses incurred during the voyage
Identifying the type of activity 

This may seem quite daunting but think about who owns the boat to identify which one of the above categories are relevant, then think about how is it being used. Remember a vessel can be a pleasure vessel for one voyage, but the next voyage, under a different usage, may be deemed as commercial so pay attention to those occasional different activities.

If the answers to the question of ownership and use suggest you fall outside of pleasure vessel usage then the next step is to look at where the operation takes place, i.e. where is the voyage?

Regulation

If the voyage is at sea then the Maritime and Coastguard Agency have jurisdiction and it is likely you would need to licence the vessel as a small commercial vessel. If the activity takes place on a non-tidal river or lake then it is likely a local authority, sometimes called a competent authority, has jurisdiction. This may be a district council or a body such as the Canal & Riverboat Trust. The regulations vary significantly from location to location so it would need local research to establish what, if anything, was required.

Tidal estuaries and rivers may apply MCA or local authority regulations, although compliance with MCA regulations will meet the majority of local requirements. The RYA website has guidance relating to pleasure and commercial regulation here - Knowledge and Advice

Adventurous Activities

The Activity Centres (Young Persons' Safety) Act 1995 provides for a licensing regime for adventure activities to be set out in secondary legislation. The current regulations are the Adventure Activities Licensing Regulations 2004 (AALA).

Regulation is primarily aimed at commercial providers of adventurous activities, including sailing and windsurfing. The regulations apply if a provider receives payment for delivering an activity to a person under 18. There are numerous exemptions which are listed below, and you will be pleased to know a club delivering to its members are included:

  • Non-turbulent inland waters where no part of the water is greater than 50m from land.
  • If a young person is accompanied by a parent/guardian.
  • A voluntary association offering activity to its members ( e.g. a club)
  • Vessel certified as commercial (coded) vessels.
  • Training delivered under RYA recognition for dinghy and windsurfing.

This RYA Guidance Note on Adventure Activities Licensing gives greater detail.

Assessing the position

Although this can be quite a dry topic, the starting point to understanding the status of ownership and usage of your vessels and the relationship with those that enjoy your Sailability activity is an essential first step.  

When looking at whether your vessels/activities come within the exemptions for pleasure vessels and/or AALA you need to be open with yourselves about what it is that is being delivered and to whom.

It may be that a small part of your activity needs to be modified, or none at all, but it is best to know where you sit in relation to the right and wrong side of the line. The RYA is able to provide expert advice in relation to both areas of licensing law.