It’s somewhat ironic that the very week that the European Commission had a recreational craft outside its offices, as part of the Treaty of Rome 50th anniversary celebrations, some indulging in the popular sport of “Brussels Bashing” spread near hysteria about the Recreational Craft Directive.
"EU makes it impossible to sell your boat!" was the subject line of a Sailing Anarchy forum thread, on March 28.

The events leading up to that entirely erroneous statement, which sparked off what the Irish Marine Casualty Investigation Board was, later, to describe as “hysteria”, began with the sinking of a yacht, on May 25, 2005.

The Hanse 371 Megawat (similar to the yacht on the right) was sailing from Dublin to Scotland, in 20/30 knots of wind, when a loud bang was heard, the steering failed and the craft began to take on water. A member of the crew saw the rudder, with about half its stock, floating away. Megawat later sank.

The Irish Marine Casualty Investigation Board investigated the incident and published its report in December, 2006. A summary appeared on the European Maritime Safety Agency website. Neither raised much comment!

So, what triggered that forum post, which got some people believing that bolting a new bit of hardware onto the deck had made their yacht illegal and others start worrying about whether they were still insured? It all began with a blog report, which claimed that the European Commission had come to sweeping conclusions, following the Megawat sinking and had made a ruling that:

“any after sales modifications to any part of a boat after manufacture, such as fitting an autopilot or self-steering gear, will invalidate the yacht’s RCD code.”

It doesn’t happen that way; the European Commission is not there to make sweeping conclusions from one incident. So how did all this arise?

FROM THE MCIB REPORT
[sic] The steering gear system is one of the “Essential Requirements” of the RCD Directive. Referring to the manufacturer’s Declaration of Conformity in Appendix 7.4, any changes which “touch the essential requirements” must be agreed with the manufacturer, to ensure the continued validity of the manufacturer’s certification.

Hanse Yachts’ Declaration of Conformity does say [sic]:

“This declaration will lost its validity if anyone carries out changes on board which touch the ‘essential safety requirements’ and are not settled amongst ourselves.”

The MCIB was, however, wrong to conclude that:

“The Declaration of Conformity issued by the manufacturer was invalidated as a result of the modification to the steering system.”

since the RCD DOES NOT require changes that touch on the essential requirements to be agreed with the manufacturer.

FROM THE MCIB REPORT
[sic] Based on the EU Commission response it appears the owners of recreational craft that undergo modifications that relate to the “essential requirements” of the RCD Directive are required to have the modifications assessed for compliance with the RCD Directive.

There are several aspects, of that statement, which could lead to confusion. The presence of a letter from the Commission Services in the Annexes, might lead one to believe that the letter was in response to a question about the Megawat sinking. IT WAS NOT. A Commission speaker had no knowledge of a yacht called Megawat, or a sinking in the Irish Sea, when BYM News asked about the incident. He said:

“This reply was given by the Commission services to a question raised by the Irish MCIB ‘if an owner modifies a yacht are they required to have the vessel recertified.’ I believe the reply by the Commission services is self explanatory and should not give rise to any misinterpretation if read correctly and completely.”

Another confusion arises from the phrase “that relate to the essential requirements” and we need to look back a bit to see why. Pre-RCD, only a few EU members had rules for the construction of boats. Those that did have rules could demand that boats imported from other member states met their rules. How could they do that, given the EU requires free movement of goods? Because Article 36 of the Treaty of Rome says that “prohibitions or restrictions on imports, exports or goods in transit justified on grounds of the protection of health and life of humans.” are not precluded.

Far from being “another example of the nanny state at work”, as one forum poster suggested, the RCD was driven by the boating industry, spearheaded by the BMIF, whose UK members wanted pan-European regulations. Industry also wanted a broadly worded directive that would not stifle design and that is precisely what it got. So, the essential requirements don’t spell out HOW you must achieve some objective, they state WHAT you must achieve and leave it up to you to decide HOW. The essential requirement for steering is “Steering systems shall be designed, constructed and installed in order to allow the transmission of steering loads under foreseeable operating conditions.” NOT “this is what you will use for the various parts and this is how you will fit them all together.”

Before she sank, Megawat had covered thousands of miles, with that autopilot, including two Atlantic crossings and several races. It is, therefore, clear that the fitting of the autopilot did not change the yacht’s conformity to the steering essential requirement, until that moment when the rudder stock suffered fatigue failure, which brings us to a final point on this issue.

The RCD has absolutely no relevance to a yacht’s use. As the Commission Services told the MCIB, not knowing that a specific craft, involved in a sinking, was being referred to:

“The only way to ensure a continued conformity of the boat with the Directive’s requirements after a modification impacting on its compliance would be to have the boat re-assessed and re-certified (implicitly with regard to those essential requirements for which compliance may be affected by the modification). This re-assessment and re-certification would be required in case the boat, after having undergone the modification, would be placed on the market and/or put into service.”

Megawat, with autopilot, was “put into service” when her owner sailed her away, after the unit had been fitted and she conformed to the steering essential requirement then.

There is nothing new in all this, the ‘wicked bureaucrats’ at the European Commission have not made a new ruling, there’s no plot to make you buy a boat builder’s extras at inflated prices and, just for the record, the other story - that the Megawat sinking led the European Commission to advise against using copper antifouling anywhere near an alloy rudder stock - is also wrong. Here’s the Commission speaker again:

“Such a recommendation has not been issued by the European Commission, but by Maritime Safety Directorate of the Irish Department of Transport in the form of a Marine Notice, based upon recommendation N° 6.2 of the MCIB report.”

Who decides whether a boat has been modified, in such a way that it could be considered a new product, needing reassessment, and how?

The Commission Services established this back in 2000 & published a guide which says: "A product, which has been subject to important changes that aim to modify its original performance, purpose or type after it has been put into service, may be considered as a new product. This has to be assessed on a case-by-case basis and, in particular, in view of the objective of the directive and the type of products covered by the directive in question. Where a rebuilt or modified product is considered as a new product, it must comply with the provisions of the applicable directives when it is placed on the market and put into service. This has to be verified - as deemed necessary according to the risk assessment - by applying the appropriate conformity assessment procedure laid down by the directive in question. In particular, if the risk assessment leads to the conclusion that the nature of the hazard or the level of risk has increased, then the modified product should normally be considered as a new product. The person who carries out important changes to the product is responsible for verifying whether or not it should be considered as a new product."

What if I fit something to the boat myself?

It is then your responsibility to decide whether or not it should be considered a new product and that is not always a cut and dried matter. It's hard to imagine circumstances where fitting an autopilot could change the conformity with the steering essential requirements, unless a completely unsuitable unit was used. It gets more complicated though, on something like - say - stability, it also depends on your own level of knowledge. For example, a racing sailor is likely to know about STIX, if you are saying "What's STIX?" then you probably shouldn't consider doing anything that might affect your boat's stability. The STIX cut off point for Category A is 32; that Bénéteau 57 has a STIX of 53, a single keel Hunter Channel 31 has a STIX of 32. Fit radar on the Bénéteau mast and it would hardly notice, do the same on the Hunter and it might well only conform to Category B and thus need reassessment.

Where can I get advice?

Another question that has no clear cut answer. First thing is to read the documentation that came with your boat, then call the builder. A builder is unlikely to tell you that it can be done if it can't, which is the way to play it safe. However, even a boatbuilder can't be guaranteed to get everything right, where RCD interpretations are concerned.

Marian Martin is the author of EuroRegs for Inland Waterways. She was on the UK DTI Consultee list, during the preparation of the RCD Amendments.