To find out, the lawyer throws Benjamin Tanis A glance at the law and, in the case of the amended SchSV, is confronted with a text that contains so many cross-references and convolutions that the typical user is likely to find it difficult to understand and interpret the new regulations.
It is correspondingly difficult to present the changes in a comprehensible manner and to assess the impact on commercially used recreational craft.
The Ship Safety Division defines the main changes on its website as follows:
The most important changes and regulations at a glance:
- The safety requirements for commercially used small vehicles (e.g. water taxis) will be increased.
- Small vessels that are not used commercially for non-material purposes do not require a ship safety certificate.
- The Ship Safety Ordinance also does not apply to pleasure craft that are only intended for private use for sport and leisure purposes.
- The certificates of equivalence previously required for smaller ships flying foreign flags in German coastal waters are no longer required.
- The use of small passenger ships in the mudflats and for the Heligoland harbour ferry is simplified.
- State-appointed inspectors are no longer required for the magnetic compass regulation of ships.
- Authorities can use their own survey system for their official vessels.
- Longer transition periods apply for traditional ships. Source
Since the publication of the new rules, we have received the most questions from the water sports industry on the following points:
- In future, yachts offering day trips under the German flag will have to be crewed by holders of professional licences.
- The most common CE conformity assessment procedures currently used by manufacturers of recreational craft do not meet the current legal requirements for the CE conformity assessment of commercially used recreational craft, meaning that new ship safety certificates can no longer be issued for the commercial use of recreational craft.
In detail:
The Ship Safety Ordinance (SchSV), which has now been amended, defines small vessels as cargo ships with a length of less than 24 metres. Among other things, this also includes sports training vessels from 8 metres in length, which are used for training to acquire sports boat licences in particular, berth charter boats and vessels that are provided with a crew for sport and leisure purposes in return for payment. In plain language: recreational craft that are not used privately or for bareboat charter are now deemed to be Cargo ships (Section 6 (1), in conjunction with Annex 1a, Part 6, Chapter 1, No. 1 SchSV). This is initially relevant for the new technical requirements.
Who will need a professional patent in the future?
Until the SchSV was amended, the commercial use of pleasure craft was only permitted if the vessel was also used commercially exclusively for sport and leisure purposes. Sport and leisure purposes typically do not exist if the main purpose of commercial trips is to transport passengers (e.g. water taxis), in the case of commercial trips with a tourist motive, such as harbour tours and event trips (e.g. disco, birthday and wedding trips) and also not in the case of burials at sea (Source).
Following the amendment to the SchSV, these previously excluded types of use are now permitted. From now on, recreational craft can also be used for taxi trips (passenger transport) or harbour tours. However, official recreational craft licences are no longer sufficient as proof of competence for this type of use. The law now requires nautical professional licences.
This extension of the commercial purpose of recreational craft is therefore of no significance for the hobby skipper, as a professional nautical licence cannot be acquired in the same way as a recreational craft licence. And so this opening is actually only relevant for holders of professional licences or shipping companies, as they can now also use recreational craft for commercial purposes.
However, we are now receiving more and more reports from the industry that the Ship Safety Division, which is responsible for issuing crew certificates, is also refusing to issue crew certificates to charter operators for recreational boating licence holders. According to the reports we have received, this is justified by allegedly deviating utilisation of the respective charter yachts.
Compliant with the law or not, the current practice of the Ship Safety Division is causing enormous uncertainty and a lack of planning security for operators of charter fleets flying the German flag. The situation is also completely unclear for the countless safety and trainer boats at smaller and larger regattas.
CE declarations of conformity
Even before the change, a CE certificate of conformity was required for the commercial use of a recreational craft. So nothing new, you might think. However, as always, the devil is in the detail: the amended legislation provides for a very specific conformity assessment procedure in future (Section 6 (1), in conjunction with Annex 1a, Part 6, Chapter 1, Section 5.2 SchSV).
In principle, the relevant product safety regulations (such as the Recreational Craft Directive: 2013/53/EU and Decision No. 768/2008/EC) provide for several possible ways (so-called modules) to demonstrate CE conformity. Depending on the design category (A,B,C,D) and the length of the vessel, conformity is generally confirmed for series-production vessels according to modules A, A1 or B+C. These modules are essentially internal production controls by the shipyards, with or without type examinations or supervised product tests, which are carried out by a so-called "notified body", an independent test centre.
However, these types of conformity assessment are no longer sufficient since the amendment to the law. The requirements for the assessment procedure have been tightened, which means that almost no yacht has currently undergone the necessary conformity tests. The test modules now required by the law have practically never been applied to recreational craft in series production. This does not mean that the vessels do not fulfil the requirements of the new Ship Safety Regulation. But the papers are not in order and every ship would theoretically have to be recertified retrospectively in order to obtain a technical licence for any type of commercial use.
However, the new law also rules out this possibility of post-certification, as the "PCA" (Post Construction Assessment) module provided for this purpose is not recognised. It can be assumed that the legislator's intention was not to ruin the German charter fleet and the livelihoods associated with it. However, it is clear that the legal text urgently needs to be revised at this point.
Further changes at a glance:
Stricter requirements for small commercial vehicles
One of the biggest changes concerns commercially used small vessels, such as water taxis or charter boats. The safety requirements have been significantly tightened here.
That sounds sensible at first - after all, it's about protecting passengers and crew. But have sensible measures really been taken here or have the thumbscrews simply been tightened across the board? For example, while portable fire extinguishers used to be sufficient in certain boat classes, fixed extinguishing systems are now required in some cases. Although this increases safety on board, it can mean high costs and technical effort for smaller companies.
Additional life-saving equipment also sounds good at first - but if this means losing valuable space on boats that are already small, it is questionable whether this will actually improve safety or simply create bureaucracy. Many smaller providers are likely to find it difficult to fulfil the new requirements. In this respect, there is a risk that fewer boats will be travelling on the water, which could have a negative impact on tourism and maritime diversity - and the question arises as to whether this development is really sensible and desirable.
Less bureaucracy for non-commercial boats
Good news for sailing clubs and non-profit organisations: Boats that are used exclusively for training will no longer need a ship safety certificate in future. Previously, a sailing club offering youth courses had to provide the same proof of safety as a commercial charter company - including regular inspections and extensive documentation. This meant time and costs that were often difficult to manage for a purely volunteer-run club. The removal of this obligation will make water sports much more accessible for clubs and their members.
Abolition of the certificate of equivalence - more freedom for international boats
Previously, foreign small vessels had to prove that their safety standards met German regulations - a bureaucratic effort that is now a thing of the past. This facilitates access to the German water sports market and promotes cross-border boat traffic. But why did this obligation exist for so long? Was this certificate really superfluous or was a sensible control body removed here? It remains to be seen to what extent there are hidden disadvantages in this new regulation.
Facilitation for mudflat cruises and harbour ferries
There are also changes for certain sailing areas. Small passenger ships that are used, for example, on mudflats or as harbour ferries benefit from simplified requirements. For example, certain tidal flat vessels no longer have to provide the same strict proof of stability as larger seagoing vessels. There are also adjustments to the requirements for life-saving appliances and technical equipment that make operation easier.
Tidal flat cruises usually take place in shallow, calm water and many boats are limited to short distances and safe routes anyway. So why apply the same strict regulations as on the high seas? The new rules also mean fewer unnecessary requirements for small harbour ferries that travel short distances in sheltered waters. Previously, they had to have the same emergency equipment on board as large ferries, even though they are never far from the shore. Now the regulations have been adapted to reflect reality, which saves costs and makes operations more flexible. This new regulation seems sensible and could strengthen regional tourism.
Changes to the magnetic compass test - useful or superfluous?
A more technical change concerns magnetic compass testing. Previously, the regulation of magnetic compasses on German-flagged ships could only be carried out by persons recognised by the Federal Maritime and Hydrographic Agency or an IMO member state. This requirement no longer applies with the amendment to the Ship Safety Ordinance. This brings the requirements for German-flagged ships into line with international procedures. In addition, compass adjusters recognised by the BSH or an IMO member state were rarely available abroad.
Longer transition periods for traditional ships
There is also an important change for traditional ships: the deadlines for implementing the safety requirements have been extended. This is a relief for operators of historic ships in particular, as they often have great difficulty reconciling modern regulations with the preservation of maritime cultural assets. This shows that regulation can not only be tightened, but also sensibly adapted.
Conclusion: More security - but at what price?
The new Ship Safety Regulation brings sensible simplifications, but also stricter regulations. While some changes represent real progress, the question of whether they are really necessary remains unanswered for others. The stricter regulations are currently becoming a problem for smaller commercial providers in particular. At the same time, some bureaucratic hurdles are being removed, which is a clear advantage for leisure skippers and clubs. Ultimately, it remains to be seen how the new rules will prove themselves in practice. Will water sports really become safer - or just more complicated? And how much regulation is actually necessary in order not to lose the fun of sailing, motor boating or water sports?
The German industry associations (Bundesverband Wassersportwirtschaft and Deutscher Boots- und Schiffbauerverband) are currently in close and constructive dialogue with the Federal Ministry of Digital and Transport in order to resolve the practical problems that have arisen as a result of the legal changes. We are confident that the ministry will provide the industry with rapid and practical assistance, especially as the ministry has already sought close dialogue with industry representatives during the legislative process.
Benjamin Tanis
