is it legal?

dave t

to follow on from the other thread where we talked about the legality of selling on second hand non ce rebreathers, well it seems that Dave Cooper was right and I was wrong. Just had a long conversation with my local trading standards office and they told me

it is perfectly legal to make a personal import of any non ce product

it is perfectly legal to sell second hand a non ce rebreather (or anything else for that matter) as long as its private individual to private individual. If you are selling it in your capacity as instructor or dive company rep then it is not legal

hopefully my local trading standards office are right!!!

Dave

JonnyB

get it in writing....

/Jonny

__________________
A quote from Crazyduck - In remembering our own Rob Davies.
"Outbound flight 777 heavy you are cleared for flight
Due west into that warm red Texas sunset
You have angels on your wings and divers memories on your six."

Rest In Peace

http://www.divetekcyprus.com
http://www.diveccr.com

AM

It doesn't matter if they put it in writing - that doesn't make it legal.

Trading standards are in fact incorrect in making assumptions that imports are legal.

One aspect of this which is particularly important is the fact that for example, in Canada, you sign the waiver and in Canada it is legal to disclaim liability for personal injury or death - the so called "exclusion clause" in a contract.

In Britain, you cannot disclaim liability for personal injury or death, under the Unfair Contract Terms Act 1977. Furthermore, liability upon selling products second hand is not governed through Trading Standards.

There are EU directives governing the sale of goods (CE and Non-CE) and these are supposed to have direct effect in the Member States. Ha, supposed to have - note my irony.

Anyway - be careful - this is a tricky area and one which appears to be receiving a fair bit of parliamentary attention at the moment.

A claim could be brought in negligence if you attempted to sell a non-CE unit and if you attempted to disclaim liability through the waiver or otherwise it will not stand up in Britain. Particularly if you are an instructor selling a second hand unit, it could be asserted that you have a duty of care (there are no black and white legal rules about whether or not you owe a duty of care, it comes down to policy decisions, the relationship between the parties etc). Any claim in negligence for selling a non-CE marked unit would essentially have to show that there was a duty of care, there was a breach of that duty of care and the resulting loss/damage is attributable to the breach.

These tripartite criteria are set in case law precedent under the professional negligence criteria laid down in the Caparo case. Be careful - there are legal precedents set in stone, which in Britain, have to be followed and Trading Standards have absolutely no jurisdiction in this.

Regards

AnneMarie

__________________

Decodiver

Well that's nice to know, thanks for the legwork or phonework Dave!

To your point Anne-Marie we are not talking about importing to sell on as instructors, nor are we talking about selling second hand non-CE units as instructors.

By our professional status we are precluded from doing this.

Cheers,

Dave Cooper.

__________________
CCR/OC Trimix Instructor Trainer
CCR Training to Mixed Gas in Switzerland, France, UK & Germany on
Megalodon/COPIS-Megalodon/KISS/Sport KISS/Ouroboros/rEvo/Inspiration/Evolution/Sentinel

www.zerogravitydiving.com

Rebreather World Terms & Conditions

schford

I think you got the view according to Trading Standards - in their eyes they don't care what you do as a private individual.....and would not get involved nor bring any sort of court case against you....

A court hearing a wrongful death suit brought by the family (if it all went Pete Tong) against you (as you sold non CE approved life support apparatus) might well think differently.

Then again they might not....but until there is case law deciding one way or the other I would not want to be the guniea pig...

__________________
Bailout and Kit Management account for Murphy's Law

The only bad question is one you did not ask and later wish you had.

Use of Rebreather World is subject to the Rebreather World Terms & Conditions of Use

ofg-1

Why don't you guys just give up, and leave the UK for the good old USA?
Ah, the USA, where you can sell almost anything to almost anybody, for almost any price.
The land of the free (spenders) and the home of the brave (buyers).
Where the deer and the antelope play (in the trophy hunting reserves where you too can pay to shoot a really big one)
Where men are men (except perhaps in San Francisco or Key West)

The bottom line, if you have an old junk anything that would embarass you to sell in Europe, just send it over here.

Please attach any complaints to this posting to a 1965 Morgan Plus 4, TR-3 engine, Moss gearbox, Weber twin carbs, fresh leather seats and new tires, and ship it to me. Only complaints recieved in this manner will be considered as serious.

Cheers,ta ta, and don't take any wooden farthings.

schford

The one advanatage we have is we don't have punative damages so no one could ever get awarded millions for having hot coffee spilt on them.

They might get something for the pain and lost earning but that woudl be it!

__________________
Bailout and Kit Management account for Murphy's Law

The only bad question is one you did not ask and later wish you had.

Use of Rebreather World is subject to the Rebreather World Terms & Conditions of Use

Padowan

So are you not able to operate "outside" of your professional status, as a "individual"? Or are you assumed to be operating as a professional in everything diving related, even if there is no instruction taking place?

__________________

PCDiver

You could also donate the breather to a non diving trusted relative/friend, who then sells it to your "client".

AM

In Britain we have an uncodified constitution and an inverted legal system. We look at cases here, establish the principles and apply them to other cases. In other countries with a written constitution and opposite legal system, they establish rules of legal principle, then apply them to the cases.

Unfortunately if you are an instructor and you sell a Rebreather to a mate for example, without selling it as an instructor through a business type of scenario - legally this does not change the fact that a duty of care might be attributed to you because of the relationship between the parties, i.e. you have presumed knowledge whilst the buyer may not. If you have quals to do something professionally but you're doing it as a mate to another mate that does not change the material facts that you are still a "professional" and they are a layperson.

We both know in diving, this ticket=knowledge is bollocks but that's how certain legal rules operate, there is no leeway to get into the level of detail required. To me it is flawed but only because we can go back to this age old argument that qualifications don't necesarrily amount to what they would be assumed to amount to, i.e. competence, legally the position is different.

It is essentially a rebuttable presumption that between a qualified "professional" and a layperson that the layperson is the weaker party. It would be up to you in the Court to show otherwise, i.e. to rebut the legal presumption of knowledge gained through professional working capacity. Professional negligence is a strange beast governed by tangible legal rules which have been established not from Statute but from case law principles.

Status could also be irrelevant. In a negligence action, just the very reselling of a product with no CE marking could be considered negligent in this country, regardless of the position of the person selling it. So a layperson selling to a layperson could be in the shit, even if they were both qualified to use the equipment.

Now THAT's a fundamentally flawed system!! You can become certifed to use and buy but the product is not certified fit for British import/resale!! Nice dichotomy. Many of these such gaps exist in diving.

Even asking for tickets doesn't necessarily protect your ass - as Stuart says none of us would want to be the legal guinea pigs in a negligence action in diving.

Regards

AnneMarie

__________________