Continuous Cruising - BW win case

[Hairy-Neil]

Yes, absolutely certain.

 

You could challenge it under unfair contract terms legislation

[mayalld]

You could challenge it under unfair contract terms legislation

 

No you couldn't, because s8 is a statute, not a contractual term.

[carlt]

 

I take it back, however after 6 weeks the boat's BWs to do with what they will...

only if they are unable to locate the owner.

 

If within six weeks of its removal by the Board any relevant craft cannot be proved to the reasonable satisfaction of the Board

to belong to any claimant, it shall, together with any furniture, tackle and apparel and any cargo, goods, chattels and effects on

board, vest in the Board:

 

Can't speak for boats and BW, but with vehicles seized by the police, they can be disposed of (for scrap if that's all their worth) but monies over the value of the recovey/storage/expenses have to be held in a customer account incase the former owner wishes to collect them.

This is because, as I said earlier, the laws relating to the public highway are clear and easily enforcible, compared to the ambiguous rubbish that BW have got to play with.

[Smelly]

Sorry Chris I missed this earlier, I actually had some work to do...

 

Objectively? Of course there is, about £2-3,000 per year. That's quite an incentive. If you factor in that stretching 14 days to 28 is not really a problem - given S17(4) - then 12 necessary movements a year. I know a few boats that are being fitted out like this. worked on at the weekend, moved a couple of miles, next weekend move back.

 

I was taking the 2-3k as a given...

 

And it very much is the case. In the Bath to Bradford pound it's a surprisingly large percentage of the online moorers. There are no moorings to be had. It may not be so in urban areas like Brum where it would be a riskier strategy but in rural areas it's common.

 

That's interesting... I and I suspect many others have been blinded by "chickens on the towpath" and other Dahlesque wonders. You're right about Brum BTW, no-one in their right mind would moor in anything other than 5 or 6 spots assuming the centre as one of them; even then on some of them there's a distinct risk of getting one's tools nicked.

 

Can we expect a rise in navigators who don't live on their boats but merely cruise on them a lot? To my mind one of the most pertinent facts about this court case is that Mr Davies decided to take BW on head on. Most people are far too sensible for that.

 

The key finding BW will take from it; I suspect will be "It follows from the above that, in general terms, I favour the construction of section 17 that is contended for by the claimants" i.e. that moving in such a pattern as you describe " frustrates the whole policy of the 1995 Act by allowing two boat owners periodically to swap adjacent temporary moorings and then claim that their boats were used bona fide for navigation"

 

Local ties and residence will of course be a substantial part of the mix but it's not difficult to construct a useful argument that goes beyond liveaboards.

 

ed... going home via a pint or two... ttfn

Edited April 15, 2011 by Smelly

[Proper Job]

Well it's been a busy day and I seemed to have missed out on the action.

 

Legal arguments, threads being pulled, PLWR's granddads being rearranged......

 

Whatever next!

 

As I see it, the important question has not been asked or answered......

 

 

 

Gibbo.......... Sausage and egg at 11 in the morning...... was that late breakfast or early lunch?

[RLWP]

<snip>

Gibbo.......... Sausage and egg at 11 in the morning...... was that late breakfast or early lunch?

 

And did you get any egg on your shirt?

 

Richard

 

I always do...

[Andy Todd]

What distance is bona fide navigation, and where is it?

 

Judgement states it is not about distance, but intent, "to be engaged in a genuine progressive journey around the network, or a substantial part of it"

 

If the "purpose in moving the boat is to attempt to escape the requirement to have a permanent mooring ... movement of the boat is not use that is bona fide for navigation". So no minimum distance.

[Gibbo]

Gibbo.......... Sausage and egg at 11 in the morning...... was that late breakfast or early lunch?

 

Supper, I hadn't been to bed.

[Sir Nibble]

That's one of things we don't know, a known unknown, to quote that American philosopher.

 

As far as I can tell, someone who isn't a liveaboard, who leaves their boat on the towpath - and there are many of them, especially in Mr Davies stamping grounds - moving it a mile or two every couple of weeks, these people whose intent is to navigate can continue to do so, in fact, have a legal judgement that backs their pattern of use.

 

I suspect that someone who isn't a liveaboard, who leaves their boat on the towpath, and there are indeed very many of them would by the judges definition demonstrate a lack of bona fide by constant changes of direction in order to remain in the same area. It is perhaps a judgement to be made between intent to navigate or intent to avoid mooring charges as the reason for ticking the box to be made in each case. What is clear is that BW are empowered to make that judgement in the first intance.

[David Schweizer]

And did you get any egg on your shirt?

 

Richard

 

I always do...

Let's just hope he doesn't get any egg on his face!

[canaldrifter]

Judgement states it is not about distance, but intent, "to be engaged in a genuine progressive journey around the network, or a substantial part of it"

 

If the "purpose in moving the boat is to attempt to escape the requirement to have a permanent mooring ... movement of the boat is not use that is bona fide for navigation". So no minimum distance.

 

It seems that BW would disagree, stumbling over their own 'legislation', evidenced by the way they propose to parcel up the L&S into 'neighbourhoods'. What is a substantial part of the navigation?

 

My question leads to another. If they create neighbourhoods on the K&A, at what boundary is the neighbourhood twixt Bath and Bradford on Avon? Where are the next boundaries? Seend? Does this mean that a boater can cruise up and down between Bath and Seend as a CCer?

 

Would BW test this in court too?

 

Get my drift?

 

tone

[ymu]

Judgement states it is not about distance, but intent, "to be engaged in a genuine progressive journey around the network, or a substantial part of it"

 

If the "purpose in moving the boat is to attempt to escape the requirement to have a permanent mooring ... movement of the boat is not use that is bona fide for navigation". So no minimum distance.

Where does the judgement state that? The wording "to be engaged in a genuine progressive journey around the network, or a substantial part of it" is from BW's CC guidance, which was explicitly disregarded by the judge, no?

[Andy Todd]

It seems that BW would disagree, stumbling over their own 'legislation', evidenced by the way they propose to parcel up the L&S into 'neighbourhoods'. What is a substantial part of the navigation?

 

My question leads to another. If they create neighbourhoods on the K&A, at what boundary is the neighbourhood twixt Bath and Bradford on Avon? Where are the next boundaries? Seend? Does this mean that a boater can cruise up and down between Bath and Seend as a CCer?

 

Would BW test this in court too?

 

Get my drift?

 

tone

 

BW are entirely entitled to offer a scheme which is more generous than that which they are legally required provide. If someone didn't meet such a scheme then the judgement in this case would make it very easy for BW to then refuse to licence a boat.

 

The only testing that could be undertaken in court would be if any scheme BW enacted broke some other law. If that did happen BW would fall back on their statutory requirements.

 

The real question will be will BW now withdraw the proposed L&S neighbourhood scheme? If enacting it becomes 'too difficult', then I would not be surprised if they drop it. They now have a precedent which will be much easier for them to implement.

[Smelly]

I wonder what the judgment would have been if the defendant was moving his boat twixt Bradford on Avon and Seend, for example?

 

What distance is bona fide navigation, and where is it?

 

tone

 

The term is bona fide FOR navigation. Bona Fide is legalese; navigation was subject to definition and that definition was debated... One must genuinely and honestly intend to and engage in navigation. How far is navigation has not been discussed; how far isn't navigation has.

 

which was explicitly disregarded by the judge, no?

 

Yup, hence the press releases discussing BW amending their guidance.

[matty40s]

Where does the judgement state that? The wording "to be engaged in a genuine progressive journey around the network, or a substantial part of it" is from BW's CC guidance, which was explicitly disregarded by the judge, no?

 

I have looked through my Nicholsons collection and scanned my Geo projects cruise planner and can't find the Bona Fide Navigation anywhere. Not only do I not know how many locks there are for a single hander to work through, I also have no clue as to the number of pubs each lock mile within walking distance of the moorings.......

[Smelly]

I suspect that someone who isn't a liveaboard, who leaves their boat on the towpath, and there are indeed very many of them would by the judges definition demonstrate a lack of bona fide by constant changes of direction in order to remain in the same area. It is perhaps a judgement to be made between intent to navigate or intent to avoid mooring charges as the reason for ticking the box to be made in each case. What is clear is that BW are empowered to make that judgement in the first intance.

 

Damn, I ran out of greens with Grahoom and Gibbo earlier on.

 

Someone give Sir Nib's a + would ya?

[WotEver]

Judgement states it is not about distance, but intent

 

Where does the judgement state that?

Where it stated that it involves consideration of the purpose of the use, rather that the extent of the movement.

 

Tony

[ymu]

Where it stated that it involves consideration of the purpose of the use, rather that the extent of the movement.

 

Tony

I asked where the judgement endorsed the "to be engaged in a genuine progressive journey around the network, or a substantial part of it" requirement.

 

You seem to be saying that it endorsed it whilst saying it is irrelevant.

[Lady Muck]

It seems that BW would disagree, stumbling over their own 'legislation', evidenced by the way they propose to parcel up the L&S into 'neighbourhoods'. What is a substantial part of the navigation?

 

The towpath telegraph up here is saying that they are going to drop the idea of neighbourhoods. Lots of backpedalling going on apparently. Having trawled through the 56 letters published by BW about the proposals, seems like almost all of us on the L&S are against the proposals, boats with no home moorings, boaters like me, boaters from boat clubs, angling clubs, rowing clubs, none of us want it. All we're asking for it is proper enforcement of the 14 day rules. Dunno how true it is, we're still waiting for the next set of meeting minutes.

[matty40s]

The towpath telegraph up here is saying that they are going to drop the idea of neighbourhoods. Lots of backpedalling going on apparently. Having trawled through the 56 letters published by BW about the proposals, seems like almost all of us on the L&S are against the proposals, boats with no home moorings, boaters like me, boaters from boat clubs, angling clubs, rowing clubs, none of us want it. All we're asking for it is proper enforcement of the 14 day rules. Dunno how true it is, we're still waiting for the next set of meeting minutes.

 

The telegraph is pretty reliable......

 

one of the key measures sought by most, including local IWA, RBOA, and others is some form of limit on any new boats coming on and taking CC residence(!).This is one thing BW(S Ash) said they CANNOT enforce. Perhaps this is down to the existing regulations and something that could be looked at for the near future to prevent the Armageddon of 200 plus boats moving every 7 or 14 days over a fair number of locks (EMPTYING THE NAVIGATION)

[canaldrifter]

The towpath telegraph up here is saying that they are going to drop the idea of neighbourhoods. Lots of backpedalling going on apparently. Having trawled through the 56 letters published by BW about the proposals, seems like almost all of us on the L&S are against the proposals, boats with no home moorings, boaters like me, boaters from boat clubs, angling clubs, rowing clubs, none of us want it. All we're asking for it is proper enforcement of the 14 day rules. Dunno how true it is, we're still waiting for the next set of meeting minutes.

 

You mean common sense might just prevail??

 

(Shock... horror... probe... )

 

tone

[Lady Muck]

The telegraph is pretty reliable......

 

one of the key measures sought by most, including local IWA, RBOA, and others is some form of limit on any new boats coming on and taking CC residence(!).This is one thing BW(S Ash) said they CANNOT enforce.

 

True - they'd need a new act of parliament and they've said they're not going for it. So instead they've dreamed up a bizarre game of musical boats.

[Smelly]

Where it stated that it involves consideration of the purpose of the use, rather that the extent of the movement.

 

Tony

 

I have discussed this on the QT but will publicly change my stance... a bit.

 

The Judgement found consideration of use material, but rejected a definition involving distance that favoured PD, he didn't approve BWs CC guidance but he did approve of their general approach.

 

The decision considered the policy intent of S17 BWA 95. The policy intent simply can't have intended to apply solely to residential boats. On these particular facts it was relevant, and in the case of residential boats it could remain so, however it's wide open to a finding of per incuriam when next the question is considered. Otherwise we'll end up with a "fact and degree" situation with no substantive guidelines. BW will need guidelines if they are to enforce a policy, rather than individual consideration of each situation.

 

I've discussed Civil Procedure Rule 1 elsewhere, a.k.a The Overriding Objective; it compels the courts to take a proportional approach to the decision in hand (hence my edit in the invisible thread), with consideration of fairness to the parties, expense etc. It wouldn't be proportional to compel BW to make a considered determination on each case; they need black and white. I suspect, assuming the 95 Act stands -as I believe will be the case- that when the maxima of "navigation" comes to be discussed a Judge will, with CPr 1 in mind, seek to delineate rather than interrogate the individual situation; assuming they agree with HH O'Malley.

 

To put it in context; Carl's old example of seeing a massive part of the system while still commuting to Rugby is a good one; I don't think anyone's disputed that he CCed, however to take your interpretation as a sole actor would have him fail to "navigate".

[carlt]

 

To put it in context; Carl's old example of seeing a massive part of the system while still commuting to Rugby is a good one; I don't think anyone's disputed that he CCed, however to take your interpretation as a sole actor would have him fail to "navigate".

Even though my 'intent' was to navigate as much of the system as possible, whilst still holding down a job?

 

Considering the miles I commuted, usually in a 1950s land rover, it would probably have been cheaper to take a mooring in Rugby, had my intent not been to navigate in a most bona fidinous manner.

[cotswoldsman]

I suspect that someone who isn't a liveaboard, who leaves their boat on the towpath, and there are indeed very many of them would by the judges definition demonstrate a lack of bona fide by constant changes of direction in order to remain in the same area. It is perhaps a judgement to be made between intent to navigate or intent to avoid mooring charges as the reason for ticking the box to be made in each case. What is clear is that BW are empowered to make that judgement in the first intance.

 

Not sure what regulation "intent to avoid mooring charges" breaks, I am sure someone will tell me. I know quite a few Constant Cruisers who cruise with the "intent to avoid mooring charges" especially in the winter months.