certain conditions are met, for example if it is imported into GB. In some cases, if a Major Craft Conversion (MCC) has occurred, this can trigger the PCA process. PCA can only be completed by a specialist notified or approved body and concern is mounting in the sector regarding when and what triggers the PCA process. There is confusion and uncertainty amongst brokers and marine surveyors alike. This paper sets out to provide a wider understanding of their obligations when faced with a potential PCA case. In doing so the wider scope of the RCR 2017 is also discussed.
A recent presentation to brokers contained emotive phrases such as “an armada of non-CE marked boats were plying the inland waterways – the authorities didn’t like it”, yet this concern does not have a referenced source, nor is it matched by real-world experience. Further worrying is the possibility that the scope of both the RCD and RCR has been exaggerated and misinterpreted since inception, some 25 years. Sailaways and own-built boats appear to have been conflated yet they are now described as different things. This paper outlines what has happened and where this leaves the sector.
Background research
The paper looks back to the origin and intention of the RCD as a set of regulations intended to govern the behaviour of economic operators, being manufacturers, distributors and importers. EU guidance makes clear in their “Blue Guide” that this sort of consumer legislation does not impose any requirements on a private citizen or product end user. This crucial factor relating to the scope of the legislation is for the first time explored and is found to have been previously overlooked in understanding how the RCD or RCR applies in the UK. This raises significant implications for the sector.
OPSS view
The Office for Product Safety and Standards (OPSS) / Department for Business and Trade were contacted to ask for guidance regarding PCA / MCC and in particular applicability to used vessels. Dealing with a huge portfolio of product legislation, it was hoped they would be able to answer queries directly, but ultimately, they recommended answers might be best sought from a legal specialist.
When the scope of RCR 2017 was discussed, they did confirm that it applies to newly manufactured products. However, there seems to be a familiar conflict in that OPSS make clear the scope applies to new products only, however there is the ambiguous statement made relating to how a used boat that has been modified “could” be considered “new”; this seems to match the issues experienced in the industry. When considered against the EC Blue Guide, the OPSS must surely mean the same; that a used boat being made available by a ‘person’ e.g economic operator in scope of RCR 2017 should be considered as new and in scope of RCR 2017. A further interesting point made was that OPSS directed that any requirement for PCA of a used product would be the decision of the owner.
Considering liability for alterations to watercraft
The RCR 2017 references that a change is only relevant if the vessel may no longer meet the essential requirements, and this seems to be subjective and ambiguous.
Take this example where it is not relevant; a gas-free boat is modified and fitted with an LPG system. The system is fitted by a registered gas engineer and is compliant with ISO 10239:2017. The gas engineer issues a gas safety certificate. The relevant essential requirement in RCR 2017 is listed at clause 5.5 in Schedule 1, which covers gas systems on boats. This states that all gas systems must be suitable for use, installed correctly, and tested after installation.
The gas engineer achieves this anyway, and the gas safety certificate provides the proof of legitimacy. A gas system is not a benign change; it’s a major system with potentially catastrophic consequences if something goes wrong. However clearly nothing has occurred that contravenes the essential requirements and brokers and marine surveyors are likely to have no issue. Furthermore, there seems to be no value in having the change (a gas system installed by a registered gas engineer) assessed by a 3rd party who is possibly not gas registered themselves.
114 | ISSUE 107 | MAR 2024 | THE REPORT
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