Another view of the New T&Cs

[NigelMoore]

 

I'm inclined to agree Nigel, the wording . . "or which is left or moored therein without lawful authority and includes any part of such vessel." . . at the end of the second paragraph in subsection (1) of Section 8 gives the impression of being an addition or amendment,

 

We do not need to rely on impressions as to the added on nature of “without lawful authority”; the original clause comes from the British Transport Commission Act of 1958.

 

The relevant heading for s.19 was: “As to vessels sunk stranded or abandoned.”

 

There was a separate sub-section permitting removal of a vessel “to a convenient place” in circumstances where “any vessel is left in any inland waterway without the consent of the authority”.

 

In what circumstance such a clause could have been made to apply I do not know, given that there was at that time no requirement for any consent to be on the waterways. It can only have applied to a vessel “sunk stranded or abandoned”, in clear contravention of obstruction byelaws – but why the BTC would consent to such a boat being left as it was defeats me.

 

At all events, the long-winded clause has been long abolished [except for Scotland] and replaced with the notorious s.8 we are so familiar with. The addition was only possible following the imposition of the relevant "lawful authority" in 1971 and 1976.

[Arthur Marshall]

Regarding Hawthorn's questions above, does anyone know / has anyone ever asked BW/CaRT under which of their statutory powers they purport to impose and amend T&Cs?

Doubt it, It would stop all the fun.

Generally, contractors don't need specific powers to impose or amend T&Cs. They can be specified in a contract, or, if not, they can be "taken as agreed" because of custom and practice. In the same way, they can be amended because of changes in C&P, or because of necessity. The ultimate judge are the courts. The law is generally biassed in favour of the contractor.

Please note before I get the usual abuse, I am not saying this is right or wrong morally. You tend to accept them without thought, same as when you download something off iTunes or post to FB!

[NigelMoore]

Regarding Hawthorn's questions above, does anyone know / has anyone ever asked BW/CaRT under which of their statutory powers they purport to impose and amend T&Cs?

 

Don't need to ask. They claim the power under the Transport Act 1962, Part III, s.43(3)

[Paul C]

Given that the right to a licence is defined in the 1995, would everyone prefer if they simply didn't have any T&Cs at all, and just binned a huge amount of red tape in the process? CRT could check the BSS status on BSS's database, and I don't mind them liasing with my insurance company electronically either. So for the vast majority, it would simply be pay the money and obtain the licence. For some where eg there's more unusual arrangements for insurance, or no requirement for BSS eg RCD etc they could ask for sight of the ins certificate (or just do as they now....but for the fraction they can't check electronically) or ask for proof of RCD in place etc.

[Alan de Enfield]

Doubt it, It would stop all the fun.

Generally, contractors don't need specific powers to impose or amend T&Cs. They can be specified in a contract, or, if not, they can be "taken as agreed" because of custom and practice. In the same way, they can be amended because of changes in C&P, or because of necessity. The ultimate judge are the courts. The law is generally biassed in favour of the contractor.

Please note before I get the usual abuse, I am not saying this is right or wrong morally. You tend to accept them without thought, same as when you download something off iTunes or post to FB!

 

Lets remember there is a precedent in not agreeing with T&Cs

 

"The court can hold a rule to be invalid even though it is contained in a contract" . Lord Denning. " Nagle v Feilden (1966) 2 QB 633"

[Chakugan]

 

Generally, contractors don't need specific powers to impose or amend T&Cs.

Yes, thanks Arthur, I know where you're coming from but I was under the impression that as a statutory body, CaRT are only empowered to do what they have been specifically empowered to do.

 

 

Don't need to ask. They claim the power under the Transport Act 1962, Part III, s.43(3)

 

Thanks Nigel.

They claim the power but has the extent / validity of that power to impose T&Cs ever been tested and / or was this the point I remember you and Mayalid debating at some length in another thread?

CaRT seem to be wanting to add compliance with their T&Cs as a requirement additional to those that are clearly defined in the act for the issuing of a licence.

What is concerning me I suppose is can they legally do this? And how on earth can we find out without someone spending £hundreds in the Court.

 

I think I'm rambling now, so shutting up

[NigelMoore]

Given that the right to a licence is defined in the 1995, would everyone prefer if they simply didn't have any T&Cs at all, and just binned a huge amount of red tape in the process? CRT could check the BSS status on BSS's database, and I don't mind them liasing with my insurance company electronically either. So for the vast majority, it would simply be pay the money and obtain the licence. For some where eg there's more unusual arrangements for insurance, or no requirement for BSS eg RCD etc they could ask for sight of the ins certificate (or just do as they now....but for the fraction they can't check electronically) or ask for proof of RCD in place etc.

 

There is no real problem with the situation as it is; the ‘problem’ such as it is has to do with what CaRT are trying to do with the situation – there is no ‘red tape’ in obtaining a licence [or has not been up to now]. Having guidelines [which is all they used to claim for the T&C’s] is a good thing; the enforceable elements of the T&C’s are enforceable because they are law, with set penalties – no room for argument; insurance policies can be checked without any more involvement on the applicant’s part than providing the policy number and company, and the BSS is already set up for Cart’s online recognition dispensing with paperwork.

[NigelMoore]

They claim the power but has the extent / validity of that power to impose T&Cs ever been tested and / or was this the point I remember you and Mayalid debating at some length in another thread?

 

No rambling that I can see.

 

The issue has been raised in court proceedings twice now, and each time BW/CaRT have backed off from pleading the issue. In the Dunkley case they declined to enter the arena at all, where in my own prior case they had soft-pedalled on the issue.

 

As Hildyard J wrote:

 

“In BWB's Skeleton Argument the only reference to it was accompanied by BWB's acceptance that "the ability to utilize section 43(3) is not available to BWB, pursuant to section 43(2) if, in the context of the present case, section 43 of the 1793 Act provides for a freedom from the relevant charge." Although perhaps the extent of this concession is not ideally clear, I understand BWB thereby to accept that section 43 of the 1962 Act not only does not enable it to make a charge in respect of use of the GUC pursuant to PRN, but also that section 43 of the 1962 Act does not provide it with power to make the exercise of PRN, or the enjoyment of any other rights recognised and preserved by the 1793 Act (which both parties accepted is a "local enactment" for the purposes of section 43 of the 1962 Act), subject to any terms or conditions.” [my bold]

 

He concluded his own reflections on the 1962 Act with:

 

“Put shortly, even if the 1962 Act empowered BWB to impose terms and conditions for user by way of permanent mooring, I have not been persuaded that BWB has ever validly exercised such power.” [my bold]

 

It is indeed the point over which mayalld and I were debating previously [not for the first time]. I am still awaiting his response to the last of my queries as to why the redundancy of following legislation if the 1962 Act was as inclusive as he argued.

 

It should be remembered that none of the above detracts from the ability of CaRT to set out terms and conditions as they see fit for the provisions of any such services and facilities as legislation had expressly permitted to be charged for at that time. The pleasure boat Certificates and Licences are a far later provision, that they are mandated to issue upon satisfaction solely of the conditions set out in the relevant legislation.

 

 

Edit to add: for the sake of completeness and in fairness, I should add that mayalld is in perfect agreement that issue of pleasure boat licences cannot be made subject to agreement with T&C's other than those specified in the 1995 Act.

Edited March 24, 2015 by NigelMoore

[Chakugan]

Thank you Nigel.

 

I believe things are now clear in my own mind which, worryingly, only serves to make me even more worried as regards what CaRT are attempting to / will achieve with unsuspecting fellow boaters.

[Paul C]

 

There is no real problem with the situation as it is; the ‘problem’ such as it is has to do with what CaRT are trying to do with the situation – there is no ‘red tape’ in obtaining a licence [or has not been up to now]. Having guidelines [which is all they used to claim for the T&C’s] is a good thing; the enforceable elements of the T&C’s are enforceable because they are law, with set penalties – no room for argument; insurance policies can be checked without any more involvement on the applicant’s part than providing the policy number and company, and the BSS is already set up for Cart’s online recognition dispensing with paperwork.

My point was that, whilst guidelines are good for the majority, there is a minority who will want to pick at them word-by-word (possibly court challenges etc) until they've worn down CRT's legal budget to such an extent that it impacts CRT adversely. I am imagining a scenario long term, maybe 3-5 years down the line from now. Everyone knows exactly why the T&Cs have changed - they want to bring in "ghost moorings" under the enforcement umbrella same as CCing. CRT might just have to accept that they're fine, and its a downstream consequence of imperfect wording, or out-of-dateness, of the 1995 Act which would need more legislation to change.

 

I still believe the TD case was exceptional, and I don't think we'll ever get to the bottom of the various reason(s) why they tried to do what they did, but there is a wider lesson for CRT to learn from this.

 

 

.................

 

 

Edit to add: for the sake of completeness and in fairness, I should add that mayalld is in perfect agreement that issue of pleasure boat licences cannot be made subject to agreement with T&C's other than those specified in the 1995 Act.

 

 

 

So simply binning them is an idea (even though for the majority, guidelines are a non-issue).

[NigelMoore]

So simply binning them is an idea (even though for the majority, guidelines are a non-issue).

 

It's an idea. Not a good one I don't think, they would be far better excising from both old and new T&C's any that purport to overturn statutory rights, and be content to keep the rest as guidelines.

[Paul C]

Yeah just floating the idea really.

[nine9feet]

And you find that you have been recorded at intervals of between 6 and 8 weeks AND they even get your location wrong when on your home mooring. They also do not reply when this is pointed out to them.

 

No consistency! I pointed out the errors in the data for my boat and received a response for each of the three errors I had identified. The following wording was included:

1, "....I have made an amendment to the sighting which now reads that the boat was actually at ...."

2. "....amendments have been included to state that the boat was at Mercia Marina." (This one had me at Foxton!)

3. "The sighting 28/01/2015 showing you to be at Wootten Wawen has been amended to state that you were actually at the Hockley Heath Wharf. You are correct in stating that Wootten Wawen is not on the Stratford North and for this reason I have made further enquiries with the Waterway Manager so that this can be corrected." (floc description incorrect)

 

So CRT say that have amended the data!

 

Cheers

[Hawthorn]

Am I entitled to a boat licence or am I permitted to have one providing I contract to abide by the Terms and Conditions?

Am I entitled to determine my own Terms and Conditions?

Are CRT, by law, entitled to impose Terms and Conditions?

If, mid-licence, those Terms and Conditions really change, as opposed to look as if they have changed because different words have been used and the position has been clarified, am I actually required to abide by the new Terms and Conditions, or can I claim that the previous ones should pertain throughout the period of the licence?

Not sure anyone answered this directly, but kind of got the impression that the feeling was in answer to qu 1 that I ought to be if I comply with the 2 conditions of having insurance and a BSS. Certificate, but that I could happily ignore any others. But on the other hand CRT do appear to have a statutory right to impose

No answer to Qu 2

No answer to qu 3

So here's another ..... What is the legal status of this

 

GENERAL TERMS AND CONDITIONS FOR BOAT LICENCES

In accordance with S43(3) of the Transport Act 1962, boat licences are subject to the conditions which apply to the use of a boat on any waterway which we own or manage. These are necessary to protect third parties and to help us manage the waterways well for the benefit of all our users. Numbered paragraphs below are legally binding general conditions. If you breach any of these, we are entitled to terminate your Licence and you could face legal action, which may result in the removal of your boat from our waterways. We will not issue a licence for a Powered Boat to anyone under 18 years old.

Please note that it is also a criminal offence to use or keep a boat on our waterways without a licence.

 

What does ' legally binding' mean?

[Arthur Marshall]

Question for the experts on the legal bits. When I started boating, there was no requirement that you had to have insurance to get your licence, nor did the BSS exist, and, as we all know, the BSS regs have changed a lot since they started, and again as far as I know, we have to accept every change. So how are insisting on these requirements (which as far as I know no-one has challenged) any different from imposing T&Cs? Are they not much the same thing?

[bassplayer]

Question for the experts on the legal bits. When I started boating, there was no requirement that you had to have insurance to get your licence, nor did the BSS exist, and, as we all know, the BSS regs have changed a lot since they started, and again as far as I know, we have to accept every change. So how are insisting on these requirements (which as far as I know no-one has challenged) any different from imposing T&Cs? Are they not much the same thing?

Unreasonable rules whether it be law or T&C's eventually fail when they have been pushed too far. Well that's unless we've all been successfully dumbed down.

[Alan de Enfield]

Question for the experts on the legal bits. When I started boating, there was no requirement that you had to have insurance to get your licence, nor did the BSS exist, and, as we all know, the BSS regs have changed a lot since they started, and again as far as I know, we have to accept every change. So how are insisting on these requirements (which as far as I know no-one has challenged) any different from imposing T&Cs? Are they not much the same thing?

 

Ok - the BSS (standards of construction) are covered in the 1995 Act- within that BW (C&RT) are allowed to amend the requirements :

 

For the purposes of section 17 (Conditions as to certificates and licences) of this Act the Board may from time to time prescribe standards for the construction of vessels to be used on inland waterways, and standards for any appliances, fittings or equipment in such vessels and for making provision with regard to the use and operation of such appliances, fittings and equipment with a view to securing the safety of passengers in such vessels and of other vessels or persons on the inland waterway, and the prevention of pollution, noise and interference with the operation of radio or television equipment.

 

C&RT are complying with the law by amending the BSS requirements to update for changes in equipment etc. We have to accept it as it is specified within the act.

 

They are not complying with the law with their new T&Cs

 

1) The imposition of additional requirements (complying with the T&Cs) to obtain a licence is not within the Act and is therefore illegal

2) The addition of new T&Cs that are contrary to the law are illegal (ie a boat with a home mooring must cruise when way from its mooring)

 

It s well worth reading the Act.

[raymondh]

 

You can buy more time. It's possible to exit the Bridgewater at Leigh, and at Lock 92. (in a widebeam).

I'm also going to travel onto the ship canal for a bit...

 

could I make a request for folk to not talk about other members in their absence, and to not feed any trolling, so this thread can succeed where the last failed. I've already had to clean it up, ......

Dean,

"travel onto the ship canal for a bit."

Can you expand a little ?

Ray.

 

[Alan de Enfield]

Dean,

 

Can you expand a little ?

 

 

He already has a fat boat - how much more should he expand ?

[NigelMoore]

Not sure anyone answered this directly, but kind of got the impression that the feeling was in answer to qu 1 that I ought to be if I comply with the 2 conditions of having insurance and a BSS. Certificate, but that I could happily ignore any others. But on the other hand CRT do appear to have a statutory right to impose

No answer to Qu 2

No answer to qu 3

So here's another ..... What is the legal status of this

 

GENERAL TERMS AND CONDITIONS FOR BOAT LICENCES

In accordance with S43(3) of the Transport Act 1962, boat licences are subject to the conditions which apply to the use of a boat on any waterway which we own or manage. These are necessary to protect third parties and to help us manage the waterways well for the benefit of all our users. Numbered paragraphs below are legally binding general conditions. If you breach any of these, we are entitled to terminate your Licence and you could face legal action, which may result in the removal of your boat from our waterways. We will not issue a licence for a Powered Boat to anyone under 18 years old.

Please note that it is also a criminal offence to use or keep a boat on our waterways without a licence.

 

What does ' legally binding' mean?

 

Am afraid I was being conscientious about wretched accounts at the time, and passed you by.

 

Q1 – you are entitled to a boat licence without any deemed agreement to T&C’s.

Q2 – No

Q3 - Not in this case [except insofar as AdE explains]. It was answered however in my previous post.

Q4 - irrelevant as you are not required to abide by any of them as non-statutory T&C’s.

 

As to the legal status of the quote – first sentence is false. Boat licences are NOT subject to anything other than what we’ve said. Boat owners and users, however, ARE subject to the T&C’s of use of the waterways as are enshrined within the approved byelaws and any statutory impositions.

 

I am not bothering to check on the ‘numbered paragraphs’ referred to in the quote; “legally binding” infers that the conditions are such as I have said above: imposed by statute and therefore subject to the sanctions for breach of those as provided, which can be endorsed in any legal action.

 

The licence cannot be legally terminated for any breach of such conditions, they are lying.

 

It IS true that it is a criminal offence to use or keep a boat on their waterways without a licence where a licence is required, or without a certificate where that is required.

[Arthur Marshall]

 

Ok - the BSS (standards of construction) are covered in the 1995 Act- within that BW (C&RT) are allowed to amend the requirements :

It s well worth reading the Act.

Thanks - just been doing that again(edited to add - since your post - sounded sarky to start with!).

Edited March 24, 2015 by Arthur Marshall

[NigelMoore]

Question for the experts on the legal bits. When I started boating, there was no requirement that you had to have insurance to get your licence, nor did the BSS exist, and, as we all know, the BSS regs have changed a lot since they started, and again as far as I know, we have to accept every change. So how are insisting on these requirements (which as far as I know no-one has challenged) any different from imposing T&Cs? Are they not much the same thing?

 

No.

 

You presumably started boating prior to 1995, when insurance and BSS did not exist. There were, however, general standards re: boat construction etc that were laid down under the 1983 Act - since abolished following the BSS requirement in the 1995 Act.

 

The crucial difference between the changes you describe lies in the fact that one set of conditions has been laid down by Parliament; you have no choice but to accept them. The other changes are illegally unilaterally imposed by whim; you neither have to accept them, nor can be held to have accepted them even if you think you have, in accepting the licence.

 

That makes them very much NOT "the same thing".

[NigelMoore]

 

Ok - the BSS (standards of construction) are covered in the 1995 Act- within that BW (C&RT) are allowed to amend the requirements :

 

And for completeness, though irrelevant to the specifics of pleasure boat licences: Houseboat terms and conditions remain as they were from the beginning in 1971: a moveable feast. Those CAN be made up as CaRT go along.

 

With less than 80 such certificates nationwide, and declining by the year through attrition, it is scarcely significant – but I mention it as the exception that proves the rule.

[Timleech]

 

No.

 

You presumably started boating prior to 1995, when insurance and BSS did not exist. There were, however, general standards re: boat construction etc that were laid down under the 1983 Act - since abolished following the BSS requirement in the 1995 Act.

 

 

I'm sure it's not exactly what you meant to say, but I can assure you that when we got our first shared boat in 1965 we got it insured, insurance certainly did exist

 

Tim

[Hawthorn]

Am afraid I was being conscientious about wretched accounts at the time, and passed you by.

 

Q1 – you are entitled to a boat licence without any deemed agreement to T&C’s.

Q2 – No

Q3 - Not in this case [except insofar as AdE explains]. It was answered however in my previous post.

Q4 - irrelevant as you are not required to abide by any of them as non-statutory T&C’s.

 

As to the legal status of the quote – first sentence is false. Boat licences are NOT subject to anything other than what we’ve said. Boat owners and users, however, ARE subject to the T&C’s of use of the waterways as are enshrined within the approved byelaws and any statutory impositions.

 

 

I am not bothering to check on the ‘numbered paragraphs’ referred to in the quote; “legally binding” infers that the conditions are such as I have said above: imposed by statute and therefore subject to the sanctions for breach of those as provided, which can be endorsed in any legal action.

 

The licence cannot be legally terminated for any breach of such conditions, they are lying.

 

 

 

It IS true that it is a criminal offence to use or keep a boat on their waterways without a licence where a licence is required, or without a certificate where that is required.

OK. That's pretty clear. So what does the licence entitle me to, once I've got it?