Inland Waterways

For our purposes, a Sailaway is a boat that is partly complete. This is in the sense that it cannot be used to its full design capability, yet is capable of navigating.

The Early Adopters’ View

The term Sailaway does not exist in the RCD. However, when the legislation was first implemented, the UK inland boating sector came tot he conclusion that a Sailaway was not ‘yet’ a recreational craft. As such, it could not be CE marked.

Further, it concluded that owners of Sailaways completed their boats and put them into service, they would be, by default, “the manufacturer”.

Then it was concluded that owner-manufacturers could claim their boat to be outside the scope of RCD by adopting the following exclusion from scope:

“craft built for own use, provided that they are not subsequently placed on the Community market during a period of five years;”

As a result, for around a decade, the inland waterways sector operated in the belief that an owner-completed Sailaway could be excluded from RCD after 5 years of ownership.

Frustrations of the Enforcement Body

As the years passed, the UK enforcement body for RCD, Trading Standards, noted that there were boats navigating the UK’s waters without conformity for any part of the vessel: not even the hazardous systems such as fuel and electrics. As a result, Trading Standards overturned the industry’s view and stated that if a boat is navigable, it is a recreational craft.

They also pointed out that the term ‘Sailaway’ is not recognised in law, and so cannot bestow exclusion from RCD.

Complete v Partly Complete

The Inland waterways industry responded by pointing to RCD’s annex III, that defines the route to compliance for a craft that is handed from one manufacturer to another, ‘partly complete’. This requires each manufacturer upstream of the last, to pass on the partly complete boat with a declaration that identifies the work they have done and the standards they applied. The ‘annex III declaration for partly complete craft’ should also note that the boat is not CE marked as it is to be completed by others.

So, the industry said, if a Sailaway is ‘partly complete’ then it too, could not be CE marked.

Trading Standards shot-down this response, confirming that a navigable boat is a complete boat as proven by the fact that it is ‘in service’. The fact that the Sailaway boat was, after sailing-away, to be provided with further enhancements and features, reflects a modification of an existing craft that was sold by a manufacturer. If a Major Craft Conversion occurs after ‘sailaway’, then PCA is required.

It seems that, in the past, different manufacturers of Sailaways have worked in one of three ways:

1. Issued an Annex III declaration;
2. CE marked their Sailaways with a full Declaration of Conformity;
3. Issued no compliance documentatoin or markings.

The second-hand market includes ex-Sailaways reflecting all of these approaches and they cannot all be legally correct.

Clarity from the EU Commission

The situation was made clear when the EU Commission introduced its RCD ‘application guide’ stating that boats seeking exclusion as built for own use were expected to have been “substantially built by their future user”. What is more, it also stated that completion of a “kit boat” cannot be excluded as built for own use.

The conclusion brings clarity. If a pile of materials in the form of a kit cannot be excluded, then it is impossible to argue that a complete hull and deck with engine, fuel, plumbed skin fittings and operational steering can be excluded. In fact, it is not possible to argue that a bare hull (ie a joined kit) bought by the owner, can be excluded.

Now the inland waterways industry accepts that Sailaways should be CE marked and provided with a full Declaration of Conformity. Not all manufacturers were quick to adopt this approach, however, and so the second-hand market still sees boats without CE marks from more recent times..

What to do with non-compliant boats now?

While there is sympathy for owners who excluded their Sailaways and bare hulls, believing they were entitled to do so, rules must be adhered to. 

This means there is no choice but for non-compliant boats to suffer “Post Construction Assessment” (PCA) and fit a CE or UKCA mark.

Who is responsible?

In the case of a Sailaway, the vendor should have CE marked the boat.

When the owner of the boat completes the CE marked Sailaway, they are carrying out a ‘major craft conversion’ and this demands the owner to apply to a UK Approved Body or EU Notified Body for PCA to assess the modifications

Brokers and surveyors are not responsible for the boat’s compliance. They are responsible only for informing the interested parties of what it is reasonable for them to know as industry professionals. They are not compliance specialists, so it is not reasonable for them to be familiar with all the possible technical standards and make a technical assessment of the boat’s conformity. However, brokers and surveyors are expected to know at least when boats should have a CE or UKCA mark and what a Declaration of Conformity looks like. They should be able to identify that the declaration matches the edition of the legislation in force at the time the declaration was issued.

If brokers or surveyors are suspicious at any level, they are to inform the interested parties but it is the interested parties who decide whether or not to apply for PCA. 

The cost of compliance

Post Construction Assessment following a major craft conversion is proportionate.  What does that mean?

Well, if a Sailaway was CE/UKCA marked by the original manufacturer, then PCA needs only focus on the modifications made by the owner, not the full vessel. So, the fee for the PCA is far smaller than a full assessment of the boat.

What is more, the value of the boat is enhanced by its certificate. So not only is the overhead offset when the boat is sold, but it makes the boat more likely to sell in the first place.

If the boat has never had any compliance, at any stage, then it can only avoid PCA if there is genuine evidence the owner substantially built the boat with their own hands, including the hull, and that it was completed more than 5 years ago.

Conclusion

There is a lot of confusion caused by changing attitudes over the years but the scope of the law itself has never changed. So, this means that diagnosing a non-CE/UKCA marked craft is simpler than people realise: either there is genuine evidence of built for own use and it may be excluded or there is not and it must undergo PCA.

The regulations allow the exclusion of watercraft built for own use. This is provided that they are not subsequently placed on the market during a period of five years from the putting into service of the watercraft.

This raises several difficult questions:

1. When is a boat ‘in service’ to start the clock ticking?
2. How much of the intended boat needs to be missing to qualify as partly completed?

A boat that is incomplete cannot comply with all the requirements that apply to it. So the regulations say that the authority may not impede the sale of partly-completed watercraft where the manufacturer or the importer declares that they are intended to be completed by others.

The Regulation has an annex that states what the ‘declaration; should say.

A Major Craft Conversion is defined as a conversion of a watercraft which changes the means of propulsion of the watercraft, involves a major engine modification, or alters the watercraft to such an extent that it may not meet the applicable essential requirements laid down in this regulations.

Post Construction Assessment requires assessmend by a certification body known as a Notified Body in Europe or Approved Body in UK.