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#1
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Captain legal question
Let's say a licensed master decides to offer to donate a boat ride to a
charitable organization's service auction. This group gets the money when someone pays for the ride, the buyer gets the boat ride, the captain gets nothing but a warm fuzzy feeling for contributing to the charity. This is clearly not a part of any business, and the captain is not in this business anyway. Has the captain received compensation for this according to USCG regulations? Does this mean s/he needs chartering insurance, has to be documented, etc. to do this annually? Capt. Jeff |
#2
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I remember when the Coast Guard was going around and stopping yachts
in New York Harbor. They would board and ask the guests if they had brought any lunch or beer. The guest would say, "Of course we brought something. We are polite and civil people and would never accept an invitation with out bringing something." The guys (this was before there were many gals) would then say, "Ah ha! Compensation. Owner busted, trip over, return to the dock immediately." I think it took some congressmen to get this foolishness stopped. I also saw the Coast Guard prevent a ship sailing to Bermuda because they claimed there was no way to prevent the guests from giving money to the owner in the future or proving that they hadn't already. Since there was the potential for compensation, it was passenger carrying without a license. Obviously, there was something else going on in these cases. If the Coast Guard wants to shut you down for some reason, a passenger is anyone they say is a passenger until you spend thousands of dollars and years in court proving otherwise. The only way to clearly prove otherwise to pay them as crew and have all the records in order and ready to produce. The best thing to do is go into the MSO and discuss exactly what you want to do. Same thing with your insurance company. The FAA for some reason is much more reasonable about these things than the Coast Guard. -- Roger Long "Tamaroak" wrote in message ... Let's say a licensed master decides to offer to donate a boat ride to a charitable organization's service auction. This group gets the money when someone pays for the ride, the buyer gets the boat ride, the captain gets nothing but a warm fuzzy feeling for contributing to the charity. This is clearly not a part of any business, and the captain is not in this business anyway. Has the captain received compensation for this according to USCG regulations? Does this mean s/he needs chartering insurance, has to be documented, etc. to do this annually? Capt. Jeff |
#3
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Roger Long wrote: ....snip... The FAA for some reason is much more reasonable about these things than the Coast Guard. Not in my experience, FWIW. Frank |
#4
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I should have said FAA regulations. They do explicitly spell out how
you can share expenses on a flight and how charity flights can be conducted. As in any regulatory system, you will always have your over-the-top interpretations by individuals. -- Roger Long "Frank" wrote in message ups.com... Roger Long wrote: ...snip... The FAA for some reason is much more reasonable about these things than the Coast Guard. Not in my experience, FWIW. Frank |
#5
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You are acting as an agent for the charity.
If money changes hands, either to you or to your "contract employer," somebody could make a case that you were acting in a professional capacity. It's at least a gray area. I'd think that to be free of potential problems there would need to be an arm's length relationship between you and the charity- and no particular connection to the amount your invited guests donated or even *whether* they donated to the charity. Maybe a situation where you call your friend at the charity, invite him/her for a boatride, and suggest they could bring along a half dozen friends of their own if they wanted to. If the charity then, and without your knowledge, dangles the invite in front of some potential donors that is not your problem....exactly. But somebody could still try to make it so. A lot of the recreational boaters running out to get their OUPV or 100-ton papers might do well to pause and consider that if anything happens on their boat that means they will be defending themselves in civil court, the complainant's attorney will make a big deal in front of the jury about how a "licensed captain" should have known better than to do whatever stupid thing caused the problem in the first place. Heck of a price to pay for the ego zing of being "Captain" so and so. If a boater doesn't earn his/her living running a boat, why mess with the headache of being licensed? The other thing that leaves a defendent additionally looking bad in front of a civil jury would be a thorough examination of the "sea service" claims made by the recreational boater to sit for the license in the first place. It's well known that a good many applicants lie, some of them a lot, and the CG has no reliable method of vetting sea service claims. "If Captain Zero lied about his sea service, why should we believe he's being truthful now?" |
#6
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In the "old days" if the passenger contributed anything, even brought
lunch for the owner, or a "gift for the boat" he became a "passenger for hire" and a professional license (6-pak or Master's) was required. That requirement was loosened a bit to allow for sharing of expenses. Now a guest can make a "voluntary contribution" in the form of money, food or fuel. But the word "voluntary" is key - The basic test whether the passengers would have been carried if they hadn't paid. Thus, I think the "charity auction" fails test and will be considered "passengers for hire." This was covered in a CG Circular 12 years ago - I think its still appropriate: http://www.uscg.mil/hq/g-m/nvic/7_94/n7-94.htm Here's part of it: NAVIGATION AND VESSEL INSPECTION CIRCULAR NO. 7-94 Subj: GUIDANCE ON THE PASSENGER VESSEL SAFETY ACT OF 1993 SEC. 506. PASSENGER FOR HIRE. Section 2101 of title 46, United States Code, is amended by inserting between paragraphs (21) and (22) a new paragraph (21a) to read as follows: "(21a) 'passenger for hire' means a passenger for whom consideration is contributed as a condition of carriage on the vessel, whether directly or indirectly flowing to the owner, charterer, operator, agent, or any other person having an interest in the vessel.". DESCRIPTION - The determination of what constitutes the carriage of a "passenger for hire" must be made on a case by case basis. This determination is dependent upon the actual operation of a vessel and the flow of consideration as determined by the facts of each case. In general, there needs to be some form of tangible consideration or promise of performance being passed for a "passenger for hire" situation to exist. SEC. 507. CONSIDERATION. Section 2101 of title 46, United States Code, is amended by inserting between paragraphs (5) and (6) a new paragraph (5a) to read as follows: "(5a) 'consideration' means an economic benefit, inducement, right, or profit including pecuniary payment accruing to an individual, person, or entity, but not including a voluntary sharing of the actual expenses of the voyage, by monetary contribution or donation of fuel, food, beverage, or other supplies.". DESCRIPTION - Section 507 amends 46 U.S.C. 2101 by adding a definition of the term "consideration." Although this term was used in the prior definition of a "passenger," it was not previously defined by statute. Generally, some tangible amount of worth exchanged for carriage on a vessel such as payment, exchange of goods or a promise of performance is required. "Consideration" does not include a voluntary sharing of the actual expenses of a voyage. Additionally, employees or business clients that have not contributed for their carriage, and are carried for morale or entertainment purposes is not included as exchange of consideration. Tamaroak wrote: Let's say a licensed master decides to offer to donate a boat ride to a charitable organization's service auction. This group gets the money when someone pays for the ride, the buyer gets the boat ride, the captain gets nothing but a warm fuzzy feeling for contributing to the charity. This is clearly not a part of any business, and the captain is not in this business anyway. Has the captain received compensation for this according to USCG regulations? Does this mean s/he needs chartering insurance, has to be documented, etc. to do this annually? Capt. Jeff |
#7
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Hi Jeff,
I think this is very much as someone else described as a "grey area". Several years ago I was asked to offer my services for this exact same type of situation, and I agreed to do it, but both I and the vessel were fully covered and performed as if we were paid. I think it really boils down to this: as a licensed master, you are held to a higher level of expectation of professionalism, and you can be persued no matter what the laws may be. Keep in mind that there are several laws that can apply, besides Federal law, there's Maritime law and Civil law. Think about the "worst case scenario", where a passenger is seriously injured or worse. Who will be held accountable? Who will pay the medical bills? Who will protect you from civil lawsuit? Being a licensed Master is a very risky business, and I wouldn't take any shortcuts. I am not a lawyer, just a fellow mariner who wants to keep his license ;-) -- Paul =-----------------------------------= renewontime dot com FREE email reminder service for licensed mariners http://www.renewontime.com =-----------------------------------= |
#8
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On Sun, 30 Jan 2005 08:47:46 -0600, Tamaroak
wrote: Let's say a licensed master decides to offer to donate a boat ride to a charitable organization's service auction. This group gets the money when someone pays for the ride, the buyer gets the boat ride, the captain gets nothing but a warm fuzzy feeling for contributing to the charity. This is clearly not a part of any business, and the captain is not in this business anyway. Has the captain received compensation for this according to USCG regulations? Does this mean s/he needs chartering insurance, has to be documented, etc. to do this annually? Capt. Jeff I would expect that if there is no valuable consideration to the master, he is not chartered. I know the situations are not identical, but in light aircraft, I and many other private pilots have provided rides for boy scouts and other youth organizations. One expects to be persued regardless, if one commits some breach of reasonable care in the circumstance, all the same. Brian Whatcott Altus OK |
#9
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If you still plan on donating a boat trip, one thing to keep in mind is to
clearly state what this boat trip will consist of, how many passengers, etc. I've made such a donation twice to a charity in a fairly small community. The first time couldn't have gone better, made some new friends, but the second got a little strange. I realised that some bidders can get the notion, at least later, that the more they bid for something loosly defined, the more they should get. There's no question when it is a TV or bicycle being bid on. "Tamaroak" wrote in message ... Let's say a licensed master decides to offer to donate a boat ride to a charitable organization's service auction. This group gets the money when someone pays for the ride, the buyer gets the boat ride, the captain gets nothing but a warm fuzzy feeling for contributing to the charity. This is clearly not a part of any business, and the captain is not in this business anyway. Has the captain received compensation for this according to USCG regulations? Does this mean s/he needs chartering insurance, has to be documented, etc. to do this annually? Capt. Jeff |
#10
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On Sun, 30 Jan 2005 08:47:46 -0600, Tamaroak
wrote: Let's say a licensed master decides to offer to donate a boat ride to a charitable organization's service auction. This group gets the money when someone pays for the ride, the buyer gets the boat ride, the captain gets nothing but a warm fuzzy feeling for contributing to the charity. This is clearly not a part of any business, and the captain is not in this business anyway. Has the captain received compensation for this according to USCG regulations? Does this mean s/he needs chartering insurance, has to be documented, etc. to do this annually? In this case, you are acting as an agent for the charity and thus are held to the same standard as you would for a paying client. Net result is that while you are not receiving direct compensation, you are acting as a professional with all the attendant problem and possibilities of same. If something happened, you would still be responsible in your capacity as a licensed Captain. It's as simple as that. Later, Tom |
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