Rules without enforcement are no rules at all

Many of you may recall an open letter published by the IIMS to the worldwide yacht and boat manufacturing industry, which was released in October 2019. This was written about professional standards and the response to known defects in vessels, engines and equipment. Although we wanted to bring the issues to peoples’ attention, we certainly weren’t expecting to bring about any meaningful changes and, unsurprisingly, it appears that nothing has altered. What has changed, however, are the rules in this area since Brexit.

Before we look at some of the failings which have recently crossed my desk I think that it is best that we look at the changes to the Rules and Regulations first for this purpose, and for clarity, and to avoid any misunderstandings in the following text sections I have downloaded directly as published on behalf of GOV.UK by The Office for Product Safety and Standards (OPSS). The points of interest in all of this I have highlighted in bold text.

This information all refers to the current marine market rules and regulations.

The UK left the EU at the end of 31 January 2020. This kick started a transition period that formally ended on 31 December 2020.

• The RCD (Recreational Craft Directive) is the original European Union directive (Directive 2013/53/EU) concerning the design and construction of recreational boats, setting essential safety requirements for boats sold within the EU.
• The RCR (Recreational Craft Regulations). Following Brexit, the UK incorporated the EU rules into its own law. The RCR is the UK equivalent and currently mirrors the EU RCD.
• Key point: While they are currently the same document in principle, the RCR is now the legally applicable regulation for selling a boat in the UK, superseding the RCD in a legal sense within the UK’s jurisdiction. The EU RCD remains applicable for selling a boat in the EU.

The Recreational Craft Regulations 2017 implement Directive 2013/53/ EU on recreational craft and personal watercraft. The EU Withdrawal Act 2018 preserved the 2017 Regulations and enabled them to be amended so as to continue to function effectively now the UK has left the EU. Accordingly, Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019 fixed any deficiencies that arose from the UK leaving the EU (such as references to EU institutions) and made specific provision for the GB market.

• There is therefore one set of UK 2017 Regulations, but some of the provisions apply differently in Northern Ireland (NI) under the terms of the Windsor Framework. References to the 2017 Regulations in this guidance are references to those Regulations as they apply in The Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019 were amended by the Product Safety and Metrology etc. (Amendment to Extent and Meaning of Market) (EU Exit) Regulations 2020 to apply to GB only, and not to NI, in support of implementing The Protocol of Ireland and Northern Ireland (“The Northern Ireland Protocol”) and now the Windsor Framework.GB.

• The Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019 were further amended by the Product Safety and Metrology etc. (Amendment etc.) (UK (NI) Indication) (EU Exit) Regulations 2020 to provide for a 24 month transition period for importer labelling (for goods from the EEA), UKCA marking, to amend the definition of “authorised representative” as well as introducing an end (in 12 months from the end of the Transition Period) to the recognition of goods meeting EU requirements, as well as introducing provisions for qualifying NI goods.
• On 24 August 2021 the Government announced the transition period for UKCA marking would be extended until 31 December 2022. The Product Safety and Metrology etc (Amendment) Regulations 2021 gave effect to this. On 14 November 2022 the Government announced it would be extending this until 31 December 2024. The Product Safety and Metrology (Amendment and Transitional Provisions) Regulations 2022 (SI 2022/1393) gave effect to this
• On 20 June 2022, the Government announced the provisions for UKCA labelling and importer labelling would be extended until 31 December 2025. On 14 November 2022 the Government announced it would be extending the provisions for UKCA labelling and importer labelling until 31 December 2027. The Product Safety and Metrology (Amendment and Transitional Provisions) Regulations 2022 (SI 2022/1393) give effect to this.

On 1 August 2023 and 24 January 2024, the UK Government announced it would extend recognition of goods that meet EU requirements (including the CE marking), indefinitely, beyond 2024 for many products. This means that certain goods that meet EU requirements can be placed on the GB market beyond 31 December 2024. The Product Safety and Metrology etc. (Amendment) Regulations 2024 give effect to this and came into force on 1 October 2024. The legislation also provides for a ‘Fast-Track’ UKCA scheme, whereby steps taken towards CE marking will count towards UKCA marking, while UK product safety regulations remain aligned with EU product safety law.

The products covered by the Regulations are as follows (collectively referred to as “products” in this guidance):

1. Recreational craft and partly completed recreational craft  which are watercraft excluding personal watercraft intended for sports and leisure purposes of hull length from 2.5m to 24m regardless of the means of propulsion.
2. Personal watercraft (e.g. jet skis) and partly completed personal watercraft, which   are watercraft for sports and leisure purposes of less than 4m in hull length which use a propulsion engine having a water jet pump as its primary source of propulsion and designed to be operated by a person or persons sitting, standing or kneeling on, rather than within, the confines of the hull.
3. Components of watercraft listed in Schedule 2 (when placed   on the market separately and   when intended for installation in watercraft).
4. Propulsion engines installed or intended for use in watercraft.

There are a number of exclusions from the Regulations including:

1. watercraft intended solely for racing (labelled as such by the manufacturer)
2. canoes and kayaks designed to be   propelled solely by human power,   gondolas and pedalos
3. surfboards
4. submersibles eg submarines
5. aircushion vehicles eg hovercraft
6. hydrofoils
7. amphibious vehicles

Obligations of manufactuers

A manufacturer is a person who manufactures a product, or has a product designed or manufactured, and markets that product under their name or trademark.

The obligations of manufacturers of products include:

1. Before making a product available on the GB market or putting them into service, the manufacturer must:

-a)  design and manufacture it in accordance with the essential requirements set out in Schedule 1 of the Regulations and that they do not endanger the health and safety of persons, property or the environment, when used correctly as intended.

-b) decide which conformity assessment marking (UKCA, CE, or CE + UKNI) they intend the equipment to have when placed on the GB market.

-c) carry out or have carried out the applicable conformity assessment procedure referred to in Part 3 of the Regulations. Schedule 15 to the Regulations introduced by the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019 sets out all the different types of conformity assessment procedures.

-d) draw up the required technical documentation (Regulation 9 and Schedule 9).

2. When the product meets the requirements of the Regulations, and before placing on the GB market, a manufacturer must:

-a) draw up a declaration of conformity (UK DoC if UKCA marked, EU DoC if CE marked) in the model format set out in Schedule 4 (or for partly completed watercraft, in Schedule 3).

-b) ensure the declaration accompanies the product when the product is placed on the GB market.

-c) affix the relevant conformity marking (see section 9 (or section 10 for Qualifying NI Goods)) on the product or where applicable, a watercraft’s builder’s plate or propulsion engine (for components where it is not possible or warranted to affix the marking to the product, it can be affixed to its packaging and accompanying documentation). The manufacturer must ensure that the conformity assessment marking is followed by the identification number of the approved body.

3) The manufacturer must keep the declaration of conformity up to date. The manufacturer must be able to provide the market surveillance authority (MSA) with the relevant technical documentation for 10 years after the specific product was placed on the GB market.

4) The manufacturer must also label products (or, where in the case of components it is not possible, on accompanying documentation or packaging) with their name, registered trade name or registered trademark, their address, and the type batch or serial number (or other information identifying the manufacturer). This applies to all products.

5) When placing products on the GB market, the manufacturer must ensure that they are accompanied by instructions and safety information  in English.

6) The manufacturer must, when appropriate with regard to any risk posed to consumers, carry out sample testing of products they have placed on the market and investigate any complaints that the products are not in conformity with the relevant legal requirements in the Regulations and keep records of these complaints, as well as records of any products that are not in conformity and any products recalled.

7) Manufacturers must take action where they have reason to believe that any product is not in conformity with the Regulations (either to bring the product into conformity, withdraw it or recall it); where there is a risk to consumers, they must inform the relevant MSA. In GB this is local trading standards authorities. Manufacturers must take appropriate corrective action and co-operate with the enforcement authority.

8) Manufacturers that require a manufacturer’s code (MIC) in relation to watercraft identification as set out in Schedule 1, 2.1 (3) (see below) must obtain one from British Marine who are authorised to issue MICs on behalf of the Secretary of State. Manufacturers who have a MIC from British Marine or the Secretary of State will not have to re-apply for a new code but can continue to use the code they have.

In the context of the Recreational Craft Regulations (RCR) 2017, Schedule 1, Section 2.1(3) specifies the legal requirements for the Manufacturer’s Identification Code (MIC).

This section mandates that:

• Mandatory Code: Manufacturers must obtain a unique identification code (MIC) for any watercraft required to have a Watercraft Identification Number (WIN).
• Issuing Authority: In Great Britain, this code must be obtained

from British Marine, which is authorized to issue MICs on behalf of the Secretary of State.

• Exemptions: Craft exempted under Clause 4 of the RCR 2017, such as certain home- built boats, are not required to display a WIN and therefore do not require an MIC under this specific regulation.
• Existing Codes: Manufacturers who already possess a valid MIC issued by British Marine or the Secretary of State are not required to re-apply and may continue using their existing code.

Manufacturers wishing to place goods on the NI market should follow the Regulation as it applies to NI. Qualifying NI goods can be placed on the GB market without any additional approvals, although additional information as to the UK based importer may be required, if the goods have an importer based in the EU/EEA. See further detail in section 10 on Qualifying NI Goods

Obligations of authorised representatives

Manufacturers are able to appoint authorised representatives to perform certain tasks on their behalf.

Mandated authorised representatives for the GB market can be based in GB or NI but cannot be based outside the UK. A manufacturer can only mandate an authorised representative established in the UK, under the 2017 Regulations as they apply in GB.

No GB-based authorised representatives are recognised under EU law. This means GB-based authorised representatives cannot carry out tasks on the manufacturer’s behalf for products being placed on the NI and EEA markets. Therefore, a GB manufacturer selling products to the EEA or into NI, who wishes to appoint an authorised representative to carry out tasks for them in respect of those products, must appoint an authorised representative established in NI or the EEA.

An authorised representative must comply with all the duties imposed on the manufacturer under the 2017 Regulations that they are appointed by the manufacturer to perform. The manufacturer remains responsible for the proper performance of any obligations the authorised representative performs on their behalf.

Any references in the 2017 Regulations to the manufacturer are to be taken to include a reference to the authorised representative including in relation to penalties for failure to comply with those duties.

Obligations of importers

An importer is a person or business based in the UK who places products on the GB market from a country outside the UK. This means that a UK business which acted as a ‘distributor’ before 1 January 2021 is now legally an ‘importer’ if they place products from an EEA country or Switzerland on the GB market and therefore must comply with the importer duties under GB legislation.

This includes products that are supplied to NI businesses from the EEA and then placed on the GB market. In this instance the NI business will take on importer obligations for EEA-supplied goods that are placed on the GB market (see also section 10 on Qualifying NI Goods).

Importers have additional legal obligations which go beyond those of distributors, such as checking that manufacturers have carried out the required conformity assessment procedures and including their (the importer’s) name, registered trade name or mark and a postal address on the equipment.

Importers need to ensure that their address appears on the product or in accompanying documentation. Where it is not possible to indicate the information on a component, the importer can set out their details on the packaging or in accompanying documentation. To assist with the transition, the UK is applying a transitional period ending on 31 December 2027 to allow UK businesses who import from EEA states (and from 1 January 2021 become importers into the GB market) to provide their details on the accompanying documentation as an alternative to placing them on the product itself. This applies to goods that are not qualifying NI goods. For further detail on qualifying NI goods, please see section 10 on Qualifying NI Goods.

The obligations of importers include:

1)Before placing a product on the market or putting it into service, an importer must ensure that:

-a) the relevant conformity   assessment has been carried   out by the manufacturer. This   means that the product must   comply with the requirements   in Schedule 1.

-b) the manufacturer has drawn up   the technical documentation.

-c) the product has the relevant   conformity assessment marking   affixed and is accompanied by   the required documents.

-d) the manufacturer has complied   with the labelling requirements   imposed on the manufacturer.

2) When the importer has reason to believe that a product to which the Regulations apply is not in conformity with the essential requirements, the importer must not place the product on the GB market.

3) The importer must ensure that when placing products on the GB market, that they are accompanied by instructions which are in English.

4) The importer must provide their name, registered trade name or registered trademark and a postal address at which they can be contacted on the product. Where the product is a component and it is not possible to indicate this information on the component itself, the information may be provided in a document accompanying the component or on the component’s packaging. Where the importer has imported the product from an EEA state or Switzerland and places it on the GB market before 31 December 2027, the information may be provided in an accompanying document.

The obligations of importers include:

1)Before placing a product on the market or putting it into service, an importer must ensure that:

-a) the relevant conformity   assessment has been carried   out by the manufacturer. This   means that the product must   comply with the requirements   in Schedule 1.

-b) the manufacturer has drawn up   the technical documentation.

-c) the product has the relevant   conformity assessment marking   affixed and is accompanied by   the required documents.

-d) the manufacturer has complied   with the labelling requirements   imposed on the manufacturer.

2)When the importer has reason to believe that a product to which the Regulations apply is not in conformity with the essential requirements, the importer must not place the product on the GB market.

3)The importer must ensure that when placing products on the GB market, that they are accompanied by instructions which are in English.

4)The importer must provide their name, registered trade name or registered trademark and a postal address at which they can be contacted on the product. Where the product is a component and it is not possible to indicate this information on the component itself, the information may be provided in a document accompanying the component or on the component’s packaging. Where the importer has imported the product from an EEA state or Switzerland and places it on the GB market before 31 December 2027, the information may be provided in an accompanying document.

5) The importer must keep a copy of the relevant technical documentation and declaration of conformity for a period of 10 years after the products have been placed on the market and must co-operate with and provide information to the MSAs following any requests.

6)The importer must ensure that when products are under their responsibility they are stored and transported under conditions that do not affect their conformity with the essential requirements.

7)The importer must, when appropriate and taking into account the risks to the health and safety of consumers, carry out testing of the products and investigate complaints about products that are not in conformity with the 2017 Regulations and keep a register of those complaints.

8)The importer must take action where they have reason to believe that products that they have placed on the GB market are not in conformity with the 2017 Regulations. Where they are considered to present a risk to consumers then the importer is required to inform the MSA (Trading Standards in GB).

Qualifying NI goods complying with the legislation as it applies in NI, including affixing the CE marking, may also be placed on the GB market. See further detail in section 10 on Qualifying NI Goods.

Where do I affix the conformity assessment marking?

The conformity assessment marking should be affixed visibly, legibly and indelibly to the product. Where it is not possible or not warranted on account of the nature of the product to affix the conformity assessment marking directly on the product (or its data plate), then it can be affixed to the packaging and accompanying documents.

Until 31 December 2027, the UKCA marking may be affixed to a label affixed to the product or a document accompanying the product, rather than being affixed to the product itself (even where it is otherwise possible to affix it to the product itself).

Placing on the market

A fully manufactured good is ‘placed on the market’ when there is a written or verbal agreement (or offer of an agreement) to transfer ownership or possession or other rights in the product. This does not require physical transfer of the good.

You can usually provide proof of placing on the market on the basis of any relevant document ordinarily used in business transactions, including:

• contracts of sale concerning goods which have already been manufactured and meet the legal requirements;
• invoices;
• documents concerning the shipping of goods for distribution.

Products imported for further manufacture and components

When products are imported into GB for further manufacture or processing, they are not considered placed on the market. Only fully manufactured products can be considered placed on the market. Under these circumstances, the GB manufacturer of the finished product has the sole and ultimate responsibility for ensuring it is compliant before they place it on the GB market.

A finished product must be compliant with all applicable legislation when placed on the GB market. Components may be placed on the market separately and can constitute a fully manufactured product in its own right. This may include a requirement for the components of the product to be individually conformity assessed and marked. However, for many products, a single marking covering the overall product is sufficient.

Spares

Products which are repaired, refurbished or exchanged without changing their original performance, purpose, or type, are not considered ‘new’ and therefore do not need to be recertified and remarked. This includes if the product is temporarily exported for repair (as the product is not being placed on the GB market for the first time when re-imported).

Repair, replacement and maintenance operations are often carried out using other products which are spare parts. Spare parts are considered to have been placed on the market at the time at which the original product or system they are ultimately intended to repair, replace or maintain was placed on the market.

This means that spare parts can comply with the same conformity assessment requirements that were in place at the time the original product or system they are ultimately intended to repair, replace or maintain was placed on the market.

The definition of a spare part will vary depending on the commercial context, but it is broadly determined by a product’s ultimate intended usage. Whether a product is ultimately intended to be used as a spare part should be evidenced by any document demonstrating this intended use, which should be produced when requested by MSAs.

If the product has been subject to important changes, substantially changing its original performance, purpose, or type, it will be considered as a ‘new’ product. Therefore, the modified product must comply with the relevant legislative requirements at the time the product is first placed on the market or put into service.

Qualifying Northern Ireland Goods

The Government committed to providing unfettered access for qualifying NI goods to the rest of the UK market after 1 January 2021. Recreational craft and personal watercraft that can be placed on the market in NI in accordance with the legislation, as it applies to NI, can be sold in the rest of the UK without any additional approvals.

This means that products that are qualifying NI goods can be sold in the rest of the UK if any of the following apply:

• the CE marking is lawfully applied to the good on the basis of self-declaration;
• any mandatory third-party conformity assessment was carried out by an EU-recognised notified body (including a body in a country with which the EU has a relevant mutual recognition agreement) and a CE marking is affixed;
• the certificate of conformity previously held by a UK approved body has been transferred to an EU-recognised notified body and a CE marking has been affixed;
• any mandatory third-party conformity assessment was carried out by a UK-based body, and the good is therefore marked with the CE marking and with the new UKNI marking.

This will be the case even if there are changes between the EU rules that apply in NI under the terms of the Windsor Framework and the GB rules.

NI businesses that are importing products from the EEA and placing them on the GB market must ensure that the relevant conformity assessment procedure has been carried out, that the technical documentation has been drawn up and that the products bear the CE marking. They will also have to comply with the importer labelling duties (see section 6 on obligations of importers).

Approved Bodies

The UK established a new framework for UK based bodies to assess products against GB rules. Existing UK notified bodies were granted new UK ‘approved body’ status and are listed on a new UK database.

Approved bodies are conformity assessment bodies which have been approved by the Secretary of State to carry out the procedures for conformity assessment and certification for the GB market set out in the 2017 Regulations.

These approved bodies retain their 4-digit identification number. New approved bodies will be assigned a number by the Office for Product Safety and Standards on behalf of the Secretary of State. Approved bodies can assess products for the GB market against GB essential requirements (which are, as yet, the same as EU essential requirements).

UK approved bodies must be established in the UK and be independent of the manufacturer. Approved bodies must examine the technical documentation and supporting evidence in respect of recreational craft to assess their adequacy.

Enforcement and penalties

Enforcement

In GB, the local weights and measures authorities (more commonly referred to as “Trading Standards”), are the MSAs responsible for enforcement of these Regulations.

The 2017 Regulations also provide powers to the Secretary of State or a person appointed to act on their behalf to enforce the Regulations and RAMS (Regulation (EC 765/2008), as amended by the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019, which sets out requirements for market surveillance of products).

The 2017 Regulations provide the power for MSAs to take action against economic operators for products that are not in conformity with the 2017 Regulations or that present a risk. There are requirements on economic operators and private importers to co-operate with the enforcement authority as appropriate on request.

The UK MSA will take all appropriate measures to withdraw from the market, to prohibit or restrict the supply of products which may endanger the health and safety of persons, property or the environment.

Penalties

A person committing an offence under the 2017 Regulations may be liable to a penalty. Penalties can include a fine or a prison sentence of up to three months for the most serious offences. It is matter for the enforcing authority to decide whether prosecution is appropriate in each case taking into account the circumstances of the case and the enforcement authorities’ own policies, operational procedures and practices in line with the Regulators’ Code. Should a prosecution take place, it is at the discretion of the court to decide the penalties imposed on the offender.

Geoff take sup the story…

Marine manufacturers in common with all manufacturing industries face the same basic key challenges. They must be competitive within the markets they operate in, which requires them to produce the best possible products within strict financial constraints ensuring they make a profit and can continue to invest in research and development to create new products. This often leads to some manufacturers using components that are competitively priced rather than their quality  and serviceability.

This is all very well, but the desire to produce a vessel which is a cut above the rest is driving designers and manufacturers to lose sight of the most important element which is safety.

A boat built to be ‘easy to use’ may compromise it being ‘safe to use’. As examples, I have included a couple of vessels which I have recently looked at that had safety issues.

In the first instance (Boat A), the vessel has a watertight/weather tight door which opens inward fitted in the forward face of a wheelhouse/ deck saloon situated within a deep foredeck recess. The door is held closed by a magnetic catch released by a button. For aesthetics there are no obtrusive handles or clips, and this is a recipe for potential disaster. Without the door opening outwards and closing over a smaller opening any external pressure from wind or waves will force it open, as opposed to a door which closes over an opening where any external pressure would force it closed. (The door doesn’t seal anyway)!

The same Boat A has an aft cockpit deck which is positioned as close to the water line as possible. This is to allow the cockpit side bulwarks to fold down creating a flat level beach deck. Taking into account freeboard requirements this in itself is questionable, but then there is the cockpit deck hatch to consider, this gives access to the vessel’s electrical installation. In common with the forward door this hatch is only operated electrically by the push of a button and once again, for aesthetics, there are no obtrusive handles or clips – here is another recipe for potential disaster.

To make matters worse still, Boat A also has a soft sliding roof, the sealing of which is so poor that rainwater was dripping onto the helm when I visited her tied up at her berth in a marina. One can only imagine what would happen if a wave broke over her.

One operator of another Boat A, which is a commercially coded vessel, stated “when driving on rough seas, the door for passage from the bow to the ship’s cabin opens by itself. There is no handle. The door opens and therefore bangs a lot, so the door must be held closed, which is very impractical” – apparently the helmsman would have to extend his/her left leg and hold the door closed by foot.

The following text is a summary of events which led to the swamping of Boat A:

While motoring at low speed the vessel encountered a series of waves typical of usual Solent conditions given the wind and tide forecast. On the day there was only 10knts of wind and well within the CE marking plate classification of Cat B Offshore Max 6 persons and Cat C Max 9 persons. The first wave that hit the bow, sprayed into the recessed bow area, the second and subsequent waves broke over the bow and through the anchor roller aperture flooding the anchor locker. Due to the water not draining quick enough the water flooded through into the forward cabin. The water flooding the forward seating area pinned the bow down to water level lifting the outboard engines out of the water rendering the vessel adrift. Water was also forced through the lower corner of the closed front door. The bow became submerged due to the amount of water in the vessel compromising its stability.

The lower cabin flooded above the height of the bunk, and the helm station accumulated 100mm of water. Because of the bow down attitude the water could not drain through the bilges to aft, so the bilge pumps and drainage systems failed to cope. This allowed the water to rapidly accumulate in the bow of the vessel which meant that the engines were useless.

Now call me old fashioned, and I am sure that most people who know me will agree with that statement, but above all else a boat has to be a boat, and not merely a design statement. Having spent at least half of my life at sea in ships and small craft I have experienced pretty much everything that mother nature can throw at you, and at times that can be very scary indeed. In the past, all boats were capable of surviving a complete swamping, (even my first sailing dinghy had buoyancy bags etc). Some motorboats and all the old sailing boats were self-righting in the event of a knock down or capsize. I am not so sure that this is now the case. Boat A clearly failed on several counts.

The owner was not at all happy, unsurprisingly, with his recent expensive purchase of a brand new boat that was out on one of its first trips, so he contacted the Agent (Importer) and received this reply:

“I write in response to your letter of —–——- in which you purport to reject the above vessel and claim a refund for the full purchase price pursuant to the Consumer Rights Act 2015.

“This Company” does not accept your claim to reject the boat. No refunds of any kind will be made to you and we will not be collecting the vessel as you demand.

Claims by you that the vessel was mis-sold and not fit for purpose are categorically denied.

As a direct consequence of flooding, damage has occurred which is not a new boat warranty issue, or the responsibility of “This Company”-.

I strongly urge you to make a claim against your own boat insurance. Failure to do so in a reasonable and timely manner could prejudice your position in getting repairs done.

I must leave you in no doubt as to the position of “This Company” and I can confidently say that

“The Manufacturer” agrees with us whole heartedly.

Another problem which has come across my desk involves Boat B, which had an inherent steering design issue. This appears to have been realised by the first owner, who as a consequence, and after very little use, sold the boat through the agent/dealer. As a lightly used example of its type, the boat sold quickly. During the pre-purchase process whilst on sea trials, the steering problem soon came to light. The problem was brought to the attention of the distributor (now the importer) who declared that it was a minor issue and that having checked the system and replenished the oil, it was now safe to use.

Unfortunately, having taken ownership of the vessel this was found not to be the case, as the problem persisted. The boat will not track in a straight line and requires constant adjustments to the helm position. The problem appears to be a design fault due to a hydraulic helm system of one manufacturer being coupled to an on-engine driven hydraulic steering system of another manufacturer, as a consequence, we are told by the investigating engineers, the boat will require a whole new steering system to be installed.

In both the above scenarios the dealers, or importers, or agents (depending on your take of the rules) have denied responsibility and, so far, the manufacturers have not accepted any liability either.

The Boat B owner with the steering issue received this response:

“We have discussed this within —-–— and all things considered we do not feel that we are in the wrong. We have followed the standard brokerage protocol throughout, as for any other second hand boat.”

So, there are two very unhappy boat owners, one of whom had been through a similar situation before with his last boat. His boat had been factory fitted with the wrong propellers, which had only been discovered during pre-purchase sea trials, but the defect was denied by the agent/broker, of course.

It seems the customer is not always right. What ever happened to good old fashioned customer service? As the surveyor involved with both these vessels, I am very disappointed with the standards of customer service and care demonstrated by those involved.

Another case brought to my attention recently involved the proud owner of a 20 metre sailing yacht who was tempted by the promise of a set of sails which would provide “increased performance, sexy glittery looks, and the promise of increased longevity”. The distributor (importer) stated that they would “never wear out!!” (A bold statement if ever there was one).

Needless to say, the sails did wear out, but more importantly, they wore out after what would be considered very little use. Rather than replacing the sails the response from the dealer was to offer the owner a discount on another set of sails, a slightly better response than the previous two, but once again falling short of what could be considered as good customer service.

I must now refer you back to the Rules and Regulations at the opening of this article.

Before placing a vessel on the market a Manufacturer must:

• Design and manufacture it in accordance with the essential requirements.
• Draw up a declaration of conformity and ensure that the conformity assessment marking is followed by the identification number of the approved body. Manufacturers must take action where they have reason to believe that any product is not in conformity with the Regulations (either to bring the product into conformity, withdraw it or recall it); where there is a risk to consumers they must inform the relevant MSA. In GB this is local trading standards authorities. Manufacturers must take appropriate corrective action and co-operate with the enforcement authority.

An Importer is a person or business based in the UK who places products on the GB market from a country outside the UK. This means that a UK business which acted as a ‘distributor’ before 1 January 2021 is now legally an ‘importer’ The importer must, when appropriate and taking into account the risks to the health and safety of consumers, carry out testing of the products and investigate complaints about products that are not in conformity with the 2017 Regulations and keep a register of those complaints. The importer must take action where they have reason to believe that products that they have placed on the GB market are not in conformity with the 2017 Regulations. Where they are considered to present a risk to consumers then the importer is required to inform the MSA (Trading Standards in GB).

In regard to part completed Vessels – Only fully manufactured products can be considered placed on the market. Under these circumstances, the GB manufacturer of the finished product has the sole and ultimate responsibility for ensuring it is compliant before they place it on the GB market.

This means that if a vessel is supplied without engines fitted for example (quite common with outboard installations), then the company installing the engines and therefore completing the build of the vessel now takes on the responsibility of First placing of the Vessel on the Market and therefore the compliance of the vessel.

Repair, replacement and maintenance operations are often carried out using other products which are spare parts. Spare parts are considered to have been placed on the market at the time at which the original product or system they are ultimately intended to repair, replace or maintain was placed on the market.

This means that spare parts can comply with the same conformity assessment requirements that were in place at the time the original product or system they are ultimately intended to repair, replace or maintain was placed on the market.

This implies that the Spare Parts must comply with the original conformity assessment.

From a brief analysis of the above scenarios, we can draw conclusions.

Boat A was clearly not compliant in several areas, some of which were:

• The CE plate including vessel loading and design category was generic for three completely differing designs based on the same hull and the identification number of the approved body was not included.
• The forward cable locker was open at the bow and the internal/collision bulkhead was not watertight.
• The recessed cockpit drains were inadequate and too close to the water line due to inadequate freeboard.
• The forward facing wheelhouse door did not close or seal securely

Boat A, having been imported with engines means that the EU manufacturer was responsible in the first instance. However, the importer remains responsible for ensuring it was compliant before they placed it on the GB market and ‘investigate complaints’ and ‘take action’ as necessary.

In the case of Boat B, as the vessel was imported as a completed vessel the manufacturer should ultimately be responsible to rectify the defect as the steering system ‘As Fitted’ does not, and therefore, could never have functioned correctly and therefore safely.

In the final case, the question is one of quality of supplied spares, rather than conformity for which there are consumer protection rules under serviceable goods. The question remains ‘Who will discover a case of non-compliance?”

Answer: ‘The Surveyor’ because vessel safety is, or should be, the surveyor’s primary aim.

In the past, I have been in conflict with dealers and brokers where during a pre-purchase survey a vessel was found to be non-compliant, ie placed on the market in the UK without a hull number, CE Plate, or certificate of compliance. The arguments were always:

• does it need to be compliant?
• and ultimately “do you know anyone who has been prosecuted for selling a non-compliant vessel? The answer to which had to be no!

Looking at the penalties section, I note the wording which is a little vague. All surveyors will be familiar with the use of ‘May’, ‘Should’, ‘Could’ (Can) and that seldom do we see the word ‘Must’ in government department regulations.

In the new Regulations it states that you may be liable to a penalty and that penalties can include a fine, or prison sentence, which is a matter for the enforcing authority to decide and that should a prosecution take place it is at the discretion of the courts to decide the penalty.

However, having said that, from personal experience in regard to cheap imported replacement parts and equipment used in vessels, the MSA (Trading Standards) and OPSS can have them impounded and subsequently removed from the market.

Perhaps the government is asking too much of Manufacturers and Importers, lets face it they are hardly likely to say “don’t buy one of these unless your going out on a nice sunny day with flat calm seas”, known commercially as ‘favourable weather and daylight’.

They could argue that the skipper of the vessel was not competent (this also was implied) however as we all know there is no requirement to prove that you are competent when buying a boat and I am sure that they would not ask anyway (sales would plummet). At the end of the day I doubt whether being a novice or being an expert will make any difference when the coastguard or RNLI turn up to fish you out of the water or tow you to safety.

My final comment therefore is that the manufacturers, importers and suppliers in the scenarios I have shared in this article should do their homework and realise their responsibilities particularly in regard to “taking into account the risks to the health and safety of consumers” and ultimately because failing to give customer satisfaction may not just be totally unacceptable, it may also be in breach of the law.

by Geoff Waddington IIMS Past President and HonFIIMS