Articles

Lawyers: Wet or Dry?

Guy Walker and takes a look at some of the legal issues arising from owning and operating RIBs.

One of our local FM radio stations takes great delight in reminding the listening audience that virtually wherever you are in the world you are never more than six foot away from a rat. Lawyers are rather less prevalent and specialist marine lawyers pretty rare. Those who involve themselves with subjects such as ship finance, cargo claims, bills of lading and things of this nature are conventionally described as lawyers doing dry work. Those who become involved with collisions, salvage, wrecks and personal injury claims at sea are conventionally described as lawyers doing wet work. Lawyers who have anything to do with RIBs, as we do, are virtually certain to get wet!

An article in the latest edition of Boating Business confirms what most in the industry have known for a while, which is that the RIB market is one of the fastest growing sectors in the marine industry. RIBs have evolved from being robust workboats, that were not always very attractive, to sleek, powerful and expensive sports RIBs capable of very high performance and capable of sustaining significant speeds in adverse conditions. RIBs designed for the leisure market rather than as professional workboats are being sold in increasing numbers. RIBs have an enviable reputation for being firstly extremely seaworthy boats and secondly great fun.

We are not out to spoil the fun, but we felt it was time to think about some legal issues that relate to RIBs.


Competence

There is still at present no statutory requirement to hold any certificate of competence before going afloat and helming a RIB. As we know, these are nowadays very powerful boats and they don’t drive exactly like cars, which first time users might assume.

The RYA currently operate the RYA Powerboat Training Scheme which as many readers will know incorporates a three-stage level of training. Any user really ought to at least qualify as RYA Level 2 and there is much to be said for moving on to the next qualification, which is the Powerboat Advanced ticket. Plymouth Sailing School recommend that the Day Skipper theory course is completed prior to the Powerboat Advanced course. Also the obtaining of a First Aid certificate and a VHF radio operators licence is highly desirable.

At the moment, the RYA system of certification is far and away the most widely recognised, but there is already one competitor training organisation that has achieved accreditation for its courses by the Maritime and Coastguard Agency and it is conceivable that other training providers may follow.

We think it is very likely that increasingly marine insurers will want to see formal certification of competence. Initially it may be that the premiums are more attractive if certification is held, but it is possible that, in a world where the claims culture has definitely arrived, insurers will be reluctant to provide cover without evidence of certificates of competence. If you should ever find yourself involved in a situation where a claim is made against you and you have to provide evidence, your evidence will be more credible if you can demonstrate that you have undergone proper training and hold the appropriate certificates.

The importance of drivers understanding how their RIBs behave in waves cannot be underrated. RIB’s are extraordinarily tolerant boats, but a responsible attitude to RIB driving means that the driver adjusts the speed and angle of the approach to waves and the fore and aft trim of the boat correctly for the sea conditions. The practical truth is that not much speed is by lost by throttling back, but the safety factors are enhanced enormously.

“Rules of the Road” (or more accurately “sea”).
Although we have the advantage of speed and considerable manoeuvrability when driving RIBs, there are rules that must be observed.

The International Regulations for Preventing Collisions at Sea, (COLREGS) have evolved over many years. If you are driving a RIB at high speed, you are covering a great deal of distance very quickly. Knowledge of the COLREGS, preferably gained from a powerboat course and qualification, experience and anticipation are obviously keys to safe navigation at any speeds and particularly so at high speeds. Anticipation, not only of your own progress, but also the changing positions of other, perhaps slower moving vessels is crucial.

You must be aware of and comply with local speed limits which usually apply in most ports and harbours. RIBs are an obvious target for those responsible for enforcing speed limits and there are an increasing number of ports, harbours and estuaries where the authorities use radar guns to check speed and where the same authorities will prosecute offenders in the local magistrates’ courts.

Remember also that, in places such as Plymouth, where we practise, there are rigorous port control rules and navy and commercial shipping enjoy a number of priorities over other vessels.


Equipment for RIBs

It is not our intention to set out a definitive list of what should and should not be carried on a RIB by way of safety equipment. Others, such as the RYA, are far more competent to do that than we are, but common sense alone dictates that an appropriate flare pack for inshore or offshore use should be carried, as should be a fixed and/or mobile VHF. Waterproof mobile phones are now readily available but, as we all know, there are some circumstances in which mobile phone signal coverage is poor and some rescue situations in which it is not appropriate to deal with rescue co-ordinators by mobile phone and where VHF is the proper method of communication.

Life jackets for all members of the crew and spare life jackets in anticipation of surprise passengers have got to be an absolute. The only rule should be that lifejackets are always worn by all, when on board a RIB. An incident resulting in injury or death attributable to a failure to provide lifejackets for all the crew would be likely to result in a finding of fault in civil proceedings and could possibly lead to a criminal prosecution. In addition suitable clothing should be worn, be it dry suits or otherwise depending upon the use to which the RIB is to be put. First Aid and a clear and up-to-date First Aid manual are also vital. The RYA and Powerboat training schools are well able to advise on necessary equipment to be carried.

In the event that a claim is made against the owner or operator of a RIB arising from a failure to carry the proper kit, RIB owners should expect little sympathy from the Courts. Whilst some may think that we are increasingly living in a “nanny state”, the plain fact is that the Courts expect those who operate boats such as RIBs to act responsibly and part of that responsibility involves carrying the proper equipment.


Insurance

Unlike the situation in relation to motor vehicles used on the public roads, there is currently no compulsory requirement to ensure the value of a RIB against destruction or theft and more surprisingly no requirement to have third party insurance against the risk of injury to others or damage to others’ property.

However, it would be extremely irresponsible if you own or operate a RIB not to arrange adequate insurance cover. The pages of this magazine regularly carry advertisements for those who specialise in providing insurance for RIBs and it is not difficult to find suitable cover at a sensible cost, particularly when looked at in relation to the cost of acquisition of the boat, engine, electronics, etc..

A contract of insurance has always been regarded by the law as a contract where the utmost good faith must be shown by those applying for insurance. The proposal form provides the basis on which the risk to the underwriters is assessed and the amount of the premium payable by the insured which underwriters consider appropriate to the risk. When the proposal form is completed, it is fundamentally important, therefore, that it is completed with scrupulous accuracy. If in any doubt, you should go back to the insurance broker or to the insurer itself and obtain clarification as to what is sought and what information is required from you.

It is the reality that, if a claim is made upon a marine insurance policy, marine insurers and underwriters are entitled to consider what you have said in the proposal form very carefully. In completing the proposal form, you have actually provided for the insurers facts material to the risks they are accepting, for example a commitment that the boat will not be used outside of a defined geographical cruising area. To continue with that example, if insurance cover is provided for use of a RIB only in UK inland and coastal waters but the RIB is taken to France where an accident leading to a claim arises, do not expect your insurers to respond to the claim. They will be perfectly justified in saying that you have breached a “warranty” in that you have used the boat outside a cruising area for which you have paid a premium to insurers and in return for which they are providing insurance cover.

There may be highly specific insurance requirements, for example a requirement that, an approved outboard engine lock must be fitted at all times, and you ignore a condition of this nature at your peril.

Fundamentally important is the requirement to notify insurers immediately of any event that may lead to a claim.

Trailers

This magazine has recently carried a very comprehensive article on trailers by Andy Clark reminding us of the importance of checking and servicing trailers. There are some legal issues that arise.

Whilst the RIB is being trailed on the highway, it is likely that, in the event of an accident, the motor insurers would respond to a claim although you should always check your policy wording and certificates of motor insurance before thinking about trailing. Marine insurance policies may also include in transit risks.

However, if a RIB is left on a trailer in a car park or elsewhere at a time when it is not attached to the towing vehicle, the motor policy will not respond. In that situation, in the event of theft or damage, you would have to rely upon your marine insurance, if it provides cover. However you would need to be able to show that you had complied with all warranties, such as the fitting of a wheel clamp to the trailer, when it was left unattended.

Remember also weight limits when towing. The rules are that if the kerbside weight of the towing vehicle is less than twice the combined weight of the trailer and load, the trailer must be fitted with an efficient braking system. When assessing the weight, remember not only the weight of the boat but also the weight of the outboard, which can be significant, and the weight of the ancillary equipment, such as fuel carried in fuel tanks, safety and other equipment. Hence an arrangement under which a light car is towing a heavy RIB on an unbraked trailer needs careful consideration.

There are other important regulations relating to trailers and if in doubt you should seek advice from a trailer specialist.


Foreign visits

Most RIBs, particularly smaller RIBs, may not be registered on the Small Ships Register. Probably relatively few RIBs are registered in the Registry of British Ships maintained at Cardiff. It is important to remember that, when visiting some countries such as France with a RIB, a zealous customs officer may be very interested in making detailed enquiries as to the ownership and registration status of the RIB and, if RIBs are regularly taken abroad, it may well make sense to obtain registration in the Small Ships Registry, which is relatively inexpensive.

We have mentioned above the importance of establishing that your insurance covers you in the location in which you intend to take your RIB. Many of the larger RIBs, particularly those diesel-powered, are well able to make Channel crossings, and, you should check that this is covered within the cruising limits of your policy.


Conclusion

In conclusion, we are confident that the RIB market is going to expand and that designers and builders will develop bigger, better, faster, (and no doubt more expensive) boats. Driving and using RIBs is enormous fun and we should like to see the industry promoting the message that one should have that fun responsibly.

Nothing we have suggested in this article is likely to come as a great surprise to those who take a sensible attitude to their boating, but if we have highlighted a few points to think about by those who are relatively new to RIBs then perhaps a couple of water rats can be spared!

Article published in RIB International Magazine May 2002