Recreational watercraft and safety

[Image credit:  © RNLI ]

The government has announced a new consultation to look into safety laws relating to recreational and personal watercraft. The proposal is to bring such watercraft within the scope of the provisions of the Merchant Shipping Act 1995. This would mean that recreational watercraft would be made subject to the same obligations as the operators of ships to ensure they are operated safely.

The Department is of the view that new legislation is necessary to reinforce existing measures and ensure prosecutions are brought against those who wilfully or negligently misuse recreational or personal watercraft (PWC) or endanger the safety of others.

Current measures

Local and harbour authorities have the power to introduce byelaws or harbour directions to ensure the safety of all users. This would include speed limits, age restrictions, launch permits, zoning and separation of users. Contraventions of these byelaws and harbour directions can be prosecuted by the local and harbour authorities. Prosecution is also possible for more serious offences, such as under manslaughter legislation.

Why is change needed?

A prosecution was brought under section 58 of the Merchant Shipping Act 1995 against the rider of a PWC who collided with a stationary user who was seriously injured as a result. The rider was convicted but appealed on the basis that PWCs were not “used in navigation”, and the Court of Appeal upheld his challenge in 2005. The reasoning behind this decision caused further concerns about the application of section 58 to other vessels. The major concern was that if PWC operators and users were placed outside the scope of section 58, it might prove impossible to enforce reckless or dangerous activity on the water in certain circumstances.

Around 14-16,000 PWCs are available in the UK, with a further 1,200 arriving each year, the life expectancy of craft being eight to ten years. The average user age is said to be 35, and over 19,000 users have completed the Royal Yachting Associations PWC Proficiency Course. Over the last ten years, there have been 11 fatalities involving PWCs, and there is anecdotal evidence to suggest incidents of social nuisance and noise complaints are also increasing.

A consultation took place after the Court’s ruling, but it was felt the draft legislation required further development. The position has been reviewed, hence the new consultation.

Objective

The policy objective is to ensure the provisions of the 1995 Act relating to conduct endangering ships, structures or individuals and safety are applicable to recreational and PWCs. A further objective is to clarify the legal position of recreational and PWCs on the UK Ship Register will remain voluntary.

Proposals

The Department states that four proposals were considered and tested against the objectives:

1. do nothing
2. introduce primary legislation
3. legislate under the Railways and Transport Safety Act 2003
4. amend the Merchant Shipping Act definition of “ship”.

The third proposal is the one preferred by the Department. The legislation would be made under the 2003 Act to extend the relevant provisions of the 1995 Act to cover recreational and PWCs. This would ensure all PWCs and recreational craft “not used in navigation” would be in scope.

In particular, the following aspects of the 1995 Act would be amended to widen applicability:

• Offences – the offence of conduct endangering ships, structures, or individuals would apply regardless of whether the watercraft was seagoing or the master was employed.
• Unsafe operation – watercraft owners would be made liable for unsafe operation.
• Detention – enforcement authorities would be given the power to detain unsafe watercraft.
• Health and safety – future regulations could be made specifically for watercraft if required.
• Registration – voluntary registration of watercraft on the UK Ship Register to be facilitated.

This proposal would also bring recreational and PWCs within the scope of the Harbours Act 1964. This Act uses the same definition of ‘ship’ as the 1995 Act. In doing so, the Department aims to assist harbour authorities in developing their Harbour Directions.

The proposals do not include any change to, or variation of, any existing byelaws or harbour direction making powers.

Questions

Respondents are asked:

1. Whether new legislation is necessary?
2. Whether the ownership and accident figures quoted are an accurate representation?
3. Whether the proposed new definition of watercraft will meet the intended aim of bringing all recreational and PWCs within the scope of the safety and misuse requirements?
4. Whether the UK Ship Register should be open on a voluntary basis?
5. Whether the provisions of sections 58, 85 and 86 of the Act should be applied to watercraft?
6. Whether the power of detention should be available?
7. Whether the provisions of section 100 of the 1995 Act should apply to the owners of watercraft?
8. Should the same definition of watercraft be used for the purposes of the 1964 Act?
9. Should the modifications to incorporate watercraft within related merchant shipping legislation be made?
10. Are there any new costs or administrative burdens created as a result of new legislation?
11. Do you have any evidence of alcohol or drug use among recreational mariners leading to safety concerns or accidents?

The consultation closes on 1st November 2021.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact any member of our vastly experienced Criminal Defence team, for assistance with any criminal law related matter.

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Mr John Stokes (John.Stokes@danielwoodman.co.uk),
Mr Anthony Pearce (Anthony.Pearce@danielwoodman.co.uk) or
Mr Daniel Woodman (Daniel.Woodman@danielwoodman.co.uk).