Is the Australian Builders Plate a legal minefield?

The Australian Builders Plate (ABP) is promoted as an important contribution to boating safety. It is a step in the right direction. However, if it is so important, why is it not as good as it could be, rather than be the absolute minimum of requirements necessary to appear to meet the stated objectives?  To quote the NMSC website: “Improved safety and easily understood information such that the person can make an informed decision on a boat most suitable for their requirements”. A noble objective worth doing in the best and most effective way. Last month, in part one of this article, the administrative and statutory effectiveness of the ABP was questioned. The article, among other things, raised the wisdom of introducing a technically complex, self regulating law, without any effective policing. In this article I question the legal consequences and ask if manufacturers and retailers are exposed to adverse Coroners findings? Consumer law requires that any product be fit for the purpose it is sold for, and inferred suitability, particularly in advertising content, is a consideration. The question is to what extent is fitness for purpose open to interpretation. Good trade practice, and conformance with accepted standards, would be taken into account. Motor boats become unsafe when used in areas of operation for which they are not intended, when old and defective, are used by unskilled persons, or in unsafe conditions. State Marine Authorities address, and police, safe operation, life saving, competency, education, and prosecution of offenders. When things go wrong, the legal fraternity smell dollars, and there is no limit to the complexity of court cases, and the detailed evidence presented. Requirements such as the ABP are intended to provide a simple to understand way of ensuring that all new craft meet minimum standards of loading, powering and stability when swamped, and provide operators with easily understood information. Together with other laws for safety equipment, navigation, and competencies, the objective is to ensure that the safest possible operating environment exists.

The ABP Standard avoids specific reference to areas of operation, apart from vague advice that the builder should put appropriate warnings plate to the effect that person loadings should be reduced in adverse conditions or when operating offshore. In this and other matters it is fundamentally, and conceptually, different to the methodology used by the NMSC itself to draft  the Commercial Craft Requirements. The Commercial Craft Code, the ISO RC series, and AS1799 all specifically address areas of operation. A Coroner may ask why the 1975 version of AS1799 Standard  was downgraded in 2009 by a NMSC selected committee, to remove the mandatory requirement for level flotation for outboard craft in all areas of operation, when the USCG and ABYC standards had just  been upgraded to align with the previous AS1799 requirements, and  to be more in line with the ISO RC requirements. The ABP became law, and the AS1799 is advisory, but a Coroner may well find that because the ABP standard did not specifically address offshore use, where a considerable number of craft operate, and that conformance only with the minimized ABP requirement for basic flotation did not necessarily ensure fitness for purpose in a craft promoted for offshore use. Further that the person who was responsible for the particulars on the ABP should have been aware of this because of the existence of the requirement in other standards, and provided a warning on the builders plate that the craft should not to be used offshore.

Another situation exists with craft up to 15 metres. Because  ABP Standard does not specifically address areas of operation rather requires the builder, or the importer, to place an ABP on a boat that gives the safe person loading plus luggage, with a warning that loads should be reduced in adverse conditions, and use offshore, and a further direction with regard to persons on fly bridges. The AS1799, and ISO, both address sheltered water and offshore areas of operation and require a separate set of stability calculations for offshore use that involves the craft in the least stable condition, say 10% fuel, fly bridge clears down, etc. Two calculations are required, of which one is a wind loading calculation. AS1799 requires that craft less than 6 metres used offshore shall also be determined using the same requirements. With regard to a larger craft a  coroner may find that  a owner, or someone in the industry, such as a dealer who arranged for the clears, and additional top weight, such as a davit on the foredeck, and inflatable with a 15 hp 4 stroke outboard, be investigate with regard to a criminal charge, because he changed the boat such that the particulars on the plate became invalid. There will be no hiding behind a business identity. The ABP legislation requires that no one shall change a boat such that the information on the original ABP becomes invalid.

Retailers selling new boats also need to be aware of their responsibilities. It is illegal to change a boat such that the information on a plate becomes invalid. On a 4.5 metre tinnie, a spare motor, extra house battery, full spare fuel tank ,and a second anchor with  6 metres of chain, may well invalidate the information the, particularly with regard to the craft’s ability to float when swamped. Better to just sell the boat and let the owner do what he like, but that is no way to run a successful business.

A third anomaly exists with the safe loading information for outboard craft. The total loading for an outboard craft is the sum of the weight of persons, carryon luggage, and the outboard engine weight, plus the weight of a trolling or auxiliary outboard. Using AS1799, the weight of a person is assessed at 80kg, and carry on luggage at 10kg. The engine weight is the weight of the main engine, or engines, and controls. Carry on weight is personal items, portable fuel tanks, and consumable provisions. The required wording on the plate would be for example “Persons 4 = 320kg. This raised the question of what is the maximum load in the situation of 4 persons of about 95 kg. Is it 320 kg or is it 380kg? Note the equal sign is required. It does not read 4 persons or 320kg max. as the USCG require. What would a Coroner think about the information on the plate?   It is noted that with regard to person capacity there is a healthy factor of safety worked into the calculations.

In engineering things are either right or wrong. Where there is risk, engineers use professional qualifications, best practice, safety factors, risk analysis, and operator training, to avoid problems, financial, legal, and technical, and to write them out of the documents. This could have occurred with the ABP, but instead there is a legal minefield to trap and destroy someone. Sod’s law is alive and well.  The history of Coroners enquiries into marine related deaths shows that if it can happen it will. The ABP Standard, in my opinion, has legal minefields drafted into it when it could have been just as easy to draft them out.

The ABP standard states that information on the ABP  must be determined  from deemed to satisfy standards such as the Australian AS1799, the ABYC, relevant International Standards Organization Recreation  Craft standards (ISO) ,or equilivent standards such as the USCG , or Australian Commercial Craft requirements. It does not say that it shall be in accordance with the standard adopted, rather than the standard shall be used to determine the information on the plate. These appear to be that same thing, but they are not because the ABP standard allows what the deemed to satisfy standards does not allow. The USCG and ABYC require all outboard craft less than 20 feet to float level when swamped, and AS1799 was downgraded to allows basic flotation while in the  same standard strongly advising that these craft float level. The ABP standard allows outboard craft to have basic flotation. The AS1799, as does the ABYC, requires inboard craft  only to have basic flotation, that is  they can float at any angle, because practically it is difficult to get a stern drive boat less than 6 metres to float level when swamped. Because the USCG and ABYC require outboard craft under 20 foot to float level, the question that is unclear is can sections of these standards be selected out of context and used to determine basic flotation condition? Am I splitting hairs?  If you think I am then that is my point. You should not have to. The wording should be clear and un-ambiguous. As I have said it would have been just as easy to get it right without creating any more problems for manufacturers and retailers.

The builder has the option of choosing the standard he prefers. According to a report by the NMSC, it was to facilitate the export of Australian boats. What in fact it did, in spite of a low Aussie dollar at the time, was open the flood gates for imported boats. At the time the AS1799 was a higher standard than the ABYC. The AS1799 required outboard craft to float level but at the time the USCG and ABYC did not. So the ABP standard gives outboard craft the option for basic or float at any angle. Guess what?  It was Alice in Wonderland stuff. The ABP took so long to introduce that by 2006 it was already outdated. The USCG and ABYC were updated in line with the AS1799, which still requires outboard craft under 6 metres to float level. In other words the ABP requirements are less stringent than the USCG, the ABYC, and our own AS1799 before the NMSC downgraded it. What would a coroner make of it?