Text by Benjamin Tanis
On a Sunday stroll through local harbours or an evening stroll on a boating holiday - everyone has seen them. We're talking about boats that look more like abandoned pirate ships than well-maintained sports equipment. And with one or two of them, you wonder why they haven't gone to sea yet. When can, can and should a ship be prevented from leaving the harbour or even taken out of service and how can action be taken?
"Safety first" can be read as an inscription on almost every commercial vessel - and this also applies to pleasure craft. However, owners have very individual answers to the question of whether their ship is seaworthy, and there is no MOT for boats. The CE sticker should not be confused with this either. The CE conformity regulations are not an operating licence for pleasure craft and generally do not even have to be observed by private individuals.
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In the absence of specific regulations, the state can therefore only intervene for so-called general emergency response. To this end, every federal state has a general hazard prevention provision in state law that authorises the authorities to intervene if public safety or the individual is threatened. The principle of proportionality must be observed in any such intervention. This means that the intervention must serve a legitimate purpose and be suitable for achieving this purpose. Finally, it must be necessary and appropriate. Put simply, whenever a ship poses a threat to the owner or public safety, i.e. to the environment or other people, the state has a duty to act.
When is leakage proportionately prohibited?
It is usually passers-by, harbour masters or berth neighbours who call the regulatory authorities to the scene. In Germany, responsibility usually lies with the harbour authorities of the municipalities or the Waterways and Shipping Office. The authority called upon then has the difficult task of deciding whether a detention order, as a ban on leaving the harbour is called in legal jargon, is proportionate, i.e. necessary, suitable and appropriate. This can go so far as to require the boat to be taken out of the water altogether.
If the authority decides to act, it does so by means of an administrative act. And the person concerned can lodge an objection against this.
There is no clear answer to the question of when a recreational craft poses such a great danger that a ban on leaving the water is proportionate. It is therefore often not easy to answer. This may already be the case if the necessary equipment is missing on board. Mere questions of good taste, on the other hand, do not help. However, if a ship is in danger of sinking or is already in distress at sea, it is safe to speak of danger. But the state can prevent a ship from setting sail not only in the event of imminent danger. Customs, tax or other debts of the owner or possessor can also lead to the confiscation of the boat. Divorce disputes are therefore often the reason for sovereign intervention at the jetty.
When injustice occurs: from objection to complaint
Other countries do not have different customs. In principle, these rules for a prohibition of departure apply to the entire EU area, of course with one or two peculiarities. It is often not immediately clear whether the person acting is actually authorised to prevent a ship from leaving the port. In southern Europe, it is not only the state law enforcement officers who wear a uniform, but also the employees of the local marina in case of doubt. This can make you wonder whether the harbour master's word is actually law. A reasonable word and the local police can often help here.
So what should you do if the state interferes? Make sure that the decision is made in writing. This should not be a problem in Germany, but in other countries you should insist on this. This is because you can then lodge an appeal against the written decision. In this context, an appeal does not normally have a suspensive effect and the official decision must first be observed. A decision on your appeal against the official decision will then be made within a period of four to eight weeks. If the decision is not upheld, the only option is to take legal action. Above all, however, you should check and ask yourself whether there may actually be a reason for the unfavourable decision that can be easily remedied. Safety deficiencies should always be rectified immediately, then it will also work with the neighbouring berth.
In rare cases, it may even be the case that it is not a government measure but the actions of a private individual that lead to a mandatory stop in the harbour. The so-called Everyman's Right under Section 127 of the Code of Criminal Procedure (StPO) allows anyone to provisionally arrest a person without a legal order if the person is caught or pursued in the act, is suspected of absconding or if their identity cannot be established. And in order to enforce this arrest, the fugitive can also be arrested.
A wild chase at sea is not permitted
The law requires a criminal offence for the right of arrest; in its established case law, the Federal Court of Justice (BGH) even allows mere suspicion of a criminal offence to be sufficient. However, there must be particularly strong grounds for suspicion. The Federal Court of Justice justifies this right to arrest on the basis of strong suspicion by stating that citizens should be motivated to show civil courage and not be held back by not knowing whether an offence has actually been committed.
So if the petrol canister slips out of the recreational skipper's hand while refuelling in the harbour, falls into the harbour basin and leaks, but the polluter then sets off to leave the scene in a hurry, then Section 127 of the Code of Criminal Procedure authorises anyone to prevent this skipper from leaving by means of physical coercion.
Subject to proportionality, even minor bodily harm or damage to property is permitted. This may be necessary if the suspect resists arrest. In order to enable the police to establish the suspect's identity, the legislator gives everyone the necessary room for manoeuvre.
But of course there are limits here too. A wild chase at sea, for example, is not permitted. This is because the relevant water regulations, which prohibit such activities, serve the public interest. And impairing this cannot be justified by Section 127 of the Code of Criminal Procedure.
