Enforcement

[abraxus]

To be clear, it's not "my" definition - I'm on the fence in that I can see there are arguments to be made on both sides. I'm just defending the view that there's nothing flatly unreasonable or unintuitive about taking "bona fide for navigation" to mean nothing more nor less than "genuinely to move by water from one place to another".

 

Except if that's what it meant, then why use "bona fide", and not just "navigation"?

 

If it was to mean something as all encompassing as just moving by water from one place to another, then what would "non bona fide" navigation be?

 

What I'm trying to get at is not just the specific definition of the words, but the intent behind them.

[Steilsteven]

 

Except if that's what it meant, then why use "bona fide", and not just "navigation"?

 

If it was to mean something as all encompassing as just moving by water from one place to another, then what would "non bona fide" navigation be?

 

What I'm trying to get at is not just the specific definition of the words, but the intent behind them.

Well, that is exactly what has been disputed for the last ten years.

 

Keith

[abraxus]

Point taken on the bona fide requirement, but if you got rid of that, surely the home mooring requirement would still make sense? The rule would be: if you aren't able or willing to comply with the requirement not to moor consecutively for more than 14 days in one place on the public towpath, throughout the term of your licence, you must get a home mooring.

 

 

Not really. If one was to remove the bona fide clause, and only have a 14 day rule, then the home mooring requirement becomes redundant. All that one is required to do is not stay in one place longer than 14 days, which can be complied with by taking a home mooring, but equally by being lifted out for example, but there's no requirement for that in the law.

 

With only the 14 day rule, the need/desire for a home mooring becomes a choice, and so there's no need for a legal requirement. In other words, you're not allowed to remain in place for more than 14 days and, as long as you don't do that, CRT wouldn't care how you achieve it.

 

However, the fact they didn't just have a 14 day rule, but added the additional requiements of either having a home mooring or be bona fide navigating, suggests that they do care, and that bona fide navigating is more than just any kind of movement. Specifically it suggests that if you wish to remain in one location you should have a home mooring, but if you don't take one you're expected to be travelling around a bit and out of reach of one.

[magictime]

I haven't mentioned long or progressive but if to give an exaggerated example a boat spends 339 days moored in 26 different spots over 20 miles of canal I (note just my personal view but it happens to agree with those I have discussed it with other than forum) would not describe this as being used for navigation throughout the period of the license.

 

And I appreciate that there's a case to be made for interpreting the bona fide requirement as demanding something more than the sort of movement pattern you describe - as demanding a few lengthy, progressive journeys (with stops made in the course of those journeys), rather than many short journeys to and fro (with stops made in between those journeys).

 

However, I also think there's a case to be made for interpreting the bona fide requirement as demanding just that boats genuinely move from one place to another on a frequent or regular basis, throughout the period of the licence.

 

I would take that opinion because to me the primary use throughout the period was as somewhere to live within striking distance of some land bound destination e.g. work, school etc.

 

The question to me is whether, just because the primary use one makes of one's boat is as a home, one can't also be making bona fide or genuine use of it for navigation. Plenty of people use a house primarily as somewhere to live, but also as somewhere to let out a room for money. The law would nonetheless see them as bona fide or genuinely using that house as somewhere to let out a room for money - even if they only did so in order to be able to live there (if the rent paid paid by a lodger covered the mortgage, say).

 

I don't see being static in a limited number of places for the majority of the time as being bona fide (True,legitimate, genuine, without intention to deceive) navigation.

 

I'm not suggesting that a boat is navigating while it's static (moored), any more than a car is driving while it's static (parked). I'm simply suggesting that just as a car that's parked on a driveway 99% of the time might nonetheless be "used for transportation all year round" in a perfectly good sense, so a boat that's moored on the towpath 99% of the time might nonetheless be "used for navigation throughout the period" in a perfectly good sense.

 

 

If you intend to use the boat to live on keeping within a limited range can you bona fide be using it for navigation throughout the period of the license?

 

In a perfectly good sense, yes - just as you can bona fide be using your house to let a room out for money even if you intend to use it to live in (that covers the point about what you "intend"), and just as you can be using your car for transportation throughout the year even if it spends most of its time parked on your driveway (that covers the point about "navigation throughout the period").

[abraxus]

The obvious explanation would be, I suppose, that the 14 day rule is there just to spell out what the most minimal form of bona fide navigation would look like: at least one genuine use of the boat to move to a new place every 14 days. And that does look like a reasonable interpretation of the wording:

 

"used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days"

 

I imagine that the intention was to allow those who were genuinely travelling to stop along the way, rather than for people to just move around a little, not travelling as such, but just to comply with the 14 day rule. Hence the point of the "bona fide" (in good faith) element.

 

As I said, to interpret it as just any kind of movement makes "bona fide" pointless, as what would "non bona fide" navigation look like?

[adam1uk]

The question to me is whether, just because the primary use one makes of one's boat is as a home, one can't also be making bona fide or genuine use of it for navigation.

 

Bona fide implies more than just genuine, though. It means good faith. So you could navigate genuinely under your rather limited definition of just moving; but if the intention was actually just to move very little and stay pretty much in the same area, would that still be acting in good faith?

[magictime]

 

Except if that's what it meant, then why use "bona fide", and not just "navigation"?

 

If it was to mean something as all encompassing as just moving by water from one place to another, then what would "non bona fide" navigation be?

 

But "moving by water from one place to another" isn't all-encompassing, because of the way "place" is interpreted in the context of the requirements. If you chug your way 20 yards down the towpath, you're kind-of sort-of navigating, but you're not genuinely or bona fide navigating because you're not moving from one place to another (in the required sense).

 

 

Not really. If one was to remove the bona fide clause, and only have a 14 day rule, then the home mooring requirement becomes redundant. All that one is required to do is not stay in one place longer than 14 days, which can be complied with by taking a home mooring, but equally by being lifted out for example, but there's no requirement for that in the law.

 

With only the 14 day rule, the need/desire for a home mooring becomes a choice, and so there's no need for a legal requirement. In other words, you're not allowed to remain in place for more than 14 days and, as long as you don't do that, CRT wouldn't care how you achieve it.

 

However, the fact they didn't just have a 14 day rule, but added the additional requiements of either having a home mooring or be bona fide navigating, suggests that they do care, and that bona fide navigating is more than just any kind of movement. Specifically it suggests that if you wish to remain in one location you should have a home mooring, but if you don't take one you're expected to be travelling around a bit and out of reach of one.

 

Sorry, but I'm still not seeing this. The need/desire for a home mooring is already a choice, isn't it? There's no legal requirement for anyone to have one now. It's just that if you don't have a home mooring, you're legally required to use your boat bona fide for navigation without staying in one place for more than 14 days. Get rid of the bona fide bit and the need/desire for a home mooring is still a choice, but now you're legally required just to make sure you don't stay in one place for more than 14 days.

 

 

I imagine that the intention was to allow those who were genuinely travelling to stop along the way, rather than for people to just move around a little, not travelling as such, but just to comply with the 14 day rule. Hence the point of the "bona fide" (in good faith) element.

 

As I said, to interpret it as just any kind of movement makes "bona fide" pointless, as what would "non bona fide" navigation look like?

 

I'm sure that was the intention of BW when they were lobbying as the legislation was being drawn up, but whether it was the intention of Parliament when they passed the legislation (after consulting with boaters' groups as well as BW) is a different question.

 

 

Bona fide implies more than just genuine, though. It means good faith. So you could navigate genuinely under your rather limited definition of just moving; but if the intention was actually just to move very little and stay pretty much in the same area, would that still be acting in good faith?

 

Arguably, yes. Ask yourself if someone buying a car with the intention of driving very little and within a limited area is acting in good faith. The question just sounds bizarre; sure, why wouldn't he be? The difference in the case of a bridge-hopping boater is supposed to be that the limited moving he does is only done for the sake of being able to live on his boat in a convenient area, but again, I'm not sure why that should mean he was acting in bad faith. I used the example earlier of someone letting out a room in their house. Whether they're bona fide letting that room out has nothing to do with their intention in letting it out (e.g. to pay the mortgage so they can live in that house themselves); it's purely a matter of everything being "above board" (e.g. they would not be bona fide letting the room out if the "tenant" was a relative making a fraudulent housing benefit claim).

[magictime]

This one could run and run folks, but I must have churned out several thousand words on the subject at this point and I'm beginning to feel that I'm not so much making genuine progress as going backwards and forwards between the same few points. Hey, wait...

 

So I'm going to try to resist get drawn into any more argument, I think. Thanks all for keeping it so civilised and constructive.

[onionbargee]

All CRT needs to do is agree with boaters distances and times that fit in with peoples lifestyles, then stick to it. And stop moving the goal posts, and sending threatening letters.

 

Then they can get on with maintaining stuff, which is their job.

[adam1uk]

All CRT needs to do is agree with boaters distances and times that fit in with peoples lifestyles, then stick to it. And stop moving the goal posts, and sending threatening letters.

 

Then they can get on with maintaining stuff, which is their job.

 

Yes getting agreement among all boaters should be a piece of cake. i mean, just look how much agreement there is on here all the time...

 

And even if they did agree something with boaters, there would always be one person who said the law didn't allow them to do it.

[bassplayer]

 

Yes getting agreement among all boaters should be a piece of cake. i mean, just look how much agreement there is on here all the time...

 

And even if they did agree something with boaters, there would always be one person who said the law didn't allow them to do it.

Maybe more of us should direct our feelings and ideas through CRT or boating associations. I doubt doing it through here will have much effect other than draining our momentum and energy!

 

If that doesn't work, try an MP or Mr Parry (If you can find out where they drink)

[Dave Clinton]

I've just skim read these pages and after ( and before) Carlt's excellent and on-the-button post you're all talking rubbish. ( sorry).

 

According to Nigel Moore ( one of the few people whose opinion on the law I value ) the phrase 'bona fide for navigation' identifies a type of boat to differentiate from a 'houseboat' - in the 1972 Act - and not the use to which it is put.

 

it is for this reason that CRT serve a Section 13 notice along with a Section 8 notice when they take action against overstaying boats.

[magictime]

According to Nigel Moore ( one of the few people whose opinion on the law I value ) the phrase 'bona fide for navigation' identifies a type of boat to differentiate from a 'houseboat' - in the 1972 Act - and not the use to which it is put.

 

I know that Nigel is very well-informed on these issues, but other people who are at least as well informed see things differently.

 

If you read the BWB vs. Davies judgment:

 

https://www.whatdotheyknow.com/cy/request/67073/response/174565/attach/html/2/BW%20v%20Davies%20Sealed%20Judgment.pdf.html

 

- you'll see that both the claimant's lawyer and the defendant's lawyer appeal to the section of the 1971 Act you're talking about. However, both of them interpret it as defining "houseboats" and "pleasure boats" in terms of how vessels are used rather than in terms of the what type of vessel they are.

 

The claimant's lawyer (representing BWB) argues that according to the 1971 Act, any boat used "bona fide for navigation" is ipso facto a pleasure boat and any boat not so used is a houseboat, before going on to argue for an interpretation of "bona fide navigation" as being about more than just movement.

 

The defendant's lawyer argues that the 1971 Act envisages houseboats as being static vessels, so that any boat that moves about rather than remaining in one place is seen by that Act as being in use "bona fide for navigation" and therefore as being a pleasure boat rather than a houseboat. He points out that the 1995 Act makes provision for a houseboat's houseboat certificate to be deemed as a pleasure boat certificate or licence during such times as that boat is being moved from place to place, and argues that this provision is only necessary because simply moving from place to place amounts to "bona fide navigation" as the term must be understood in both the 1971 and 1995 Acts. (If a boat could be moved from place to place and yet not be deemed to be in use "bona fide for navigation", as BWB were arguing, there'd be no need for a usually static "houseboat" to be licensed as a bona-fide-navigating "pleasure boat" when being moved.)

 

And please don't tell people they're talking "rubbish" after skim-reading a thread in which many of the participants been trying pretty hard to make well-reasoned and well-informed arguments (although I accept that my own knowledge in this area is a work in progress). It's rude.

[bassplayer]

 

I know that Nigel is very well-informed on these issues, but other people who are at least as well informed see things differently.

 

If you read the BWB vs. Davies judgment:

 

https://www.whatdotheyknow.com/cy/request/67073/response/174565/attach/html/2/BW%20v%20Davies%20Sealed%20Judgment.pdf.html

 

- you'll see that both the claimant's lawyer and the defendant's lawyer appeal to the section of the 1971 Act you're talking about. However, both of them interpret it as defining "houseboats" and "pleasure boats" in terms of how vessels are used rather than in terms of the what type of vessel they are.

 

The claimant's lawyer (representing BWB) argues that according to the 1971 Act, any boat used "bona fide for navigation" is ipso facto a pleasure boat and any boat not so used is a houseboat, before going on to argue for an interpretation of "bona fide navigation" as being about more than just movement.

 

The defendant's lawyer argues that the 1971 Act envisages houseboats as being static vessels, so that any boat that moves about rather than remaining in one place is seen by that Act as being in use "bona fide for navigation" and therefore as being a pleasure boat rather than a houseboat. He points out that the 1995 Act makes provision for a houseboat's houseboat certificate to be deemed as a pleasure boat certificate or licence during such times as that boat is being moved from place to place, and argues that this provision is only necessary because simply moving from place to place amounts to "bona fide navigation" as the term must be understood in both the 1971 and 1995 Acts. (If a boat could be moved from place to place and yet not be deemed to be in use "bona fide for navigation", as BWB were arguing, there'd be no need for a usually static "houseboat" to be licensed as a bona-fide-navigating "pleasure boat" when being moved.)

 

And please don't tell people they're talking "rubbish" after skim-reading a thread in which many of the participants been trying pretty hard to make well-reasoned and well-informed arguments (although I accept that my own knowledge in this area is a work in progress). It's rude.

It's those bloomin' words again. Always open to subjective interpretation. Lawyers are experts at making them mean what they want.

[onionbargee]

If the choice is CRT "terminating" your licence because " they"don't think you have moved enough then boaters will have to agree. This forum is not all boaters, just a few very argumentative ones.

[abraxus]

 

But "moving by water from one place to another" isn't all-encompassing, because of the way "place" is interpreted in the context of the requirements. If you chug your way 20 yards down the towpath, you're kind-of sort-of navigating, but you're not genuinely or bona fide navigating because you're not moving from one place to another (in the required sense).

 

I guess that's my point though. If we take your interpretation of going to the water point as being genuine navigation, then how is it any more "bona fide" than chugging 20 yards down the towpath? All it seems is that you've drawn an arbitrary line.

Edited June 26, 2015 by abraxus

[abraxus]

This one could run and run folks, but I must have churned out several thousand words on the subject at this point and I'm beginning to feel that I'm not so much making genuine progress as going backwards and forwards between the same few points. Hey, wait...

 

So I'm going to try to resist get drawn into any more argument, I think. Thanks all for keeping it so civilised and constructive.

 

You're right, it could run and run.forever going back and forth. It's been interesting discussing it with you, have a good weekend.

[NigelMoore]

Always open to subjective interpretation.

 

In any discussion on this topic, it is always worth reviewing the subjective viewpoints of the High Court's Mr Justice Lewis, in the course of the NBTA Judicial Review hearing -

 

http://www.bargee-traveller.org.uk/?attachment_id=203

[bassplayer]

In any discussion on this topic, it is always worth reviewing the subjective viewpoints of the High Court's Mr Justice Lewis, in the course of the NBTA Judicial Review hearing -

 

http://www.bargee-traveller.org.uk/?attachment_id=203

Thanks for the link Nigel. Just got some bandwidth to download it. I don't know what to say really other than who,were the real winners? The legal profession maybe? At least they got paid to talk mumbo jumbo...

[NigelMoore]

I don't know what to say really other than who,were the real winners?

 

No winners or losers, other than, as you say, the lawyers [at least those working for CaRT; the QC for Nick Brown, and his solicitor, were working pro bono I believe].

 

But in a real sense the public wins, to some extent, in that there is now available a reasoned High Court level professional debate over, amongst other things, the meanings of "bona fide for navigation", which carries more persuasive weight [should it be needed] than the opinions of we amateur contributors here.

 

The judge developed a clear apprehension of pleasure boats being those designed to navigate, regardless of whether they did so only once a year, spending virtually all the rest of their life in marinas. They would remain pleasure boats even if never used.

 

The question then became: if an annual trip suffices to maintain the status of a boat as “bona fide for navigation”, why would that not apply to s.17(3)( c )(ii)?

 

To be honest, one doesn’t quite follow from the other, BUT it illustrates a train of thought and the start-off point remains valid.

[Paul C]

 

No winners or losers, other than, as you say, the lawyers [at least those working for CaRT; the QC for Nick Brown, and his solicitor, were working pro bono I believe].

 

But in a real sense the public wins, to some extent, in that there is now available a reasoned High Court level professional debate over, amongst other things, the meanings of "bona fide for navigation", which carries more persuasive weight [should it be needed] than the opinions of we amateur contributors here.

 

The judge developed a clear apprehension of pleasure boats being those designed to navigate, regardless of whether they did so only once a year, spending virtually all the rest of their life in marinas. They would remain pleasure boats even if never used.

 

The question then became: if an annual trip suffices to maintain the status of a boat as “bona fide for navigation”, why would that not apply to s.17(3)( c )(ii)?

 

To be honest, one doesn’t quite follow from the other, BUT it illustrates a train of thought and the start-off point remains valid.

 

You're joking? Its HALF a judgement, based on ONE side of the TWO sides in it, before the case was withdrawn! Its pretty meaningless in itself and daft to try and use it to advance any kinds of meaningful arguments in future cases, since it will be inevitibly dismissed.

[NigelMoore]

 

You're joking? Its HALF a judgement, based on ONE side of the TWO sides in it, before the case was withdrawn! Its pretty meaningless in itself and daft to try and use it to advance any kinds of meaningful arguments in future cases, since it will be inevitibly dismissed.

 

Not joking at all; you need to read things more carefully Paul.

 

That was not “half a judgment” – it was no judgment at all; it is a record of judicial deliberations as the judge enunciated his own musings over a developing consideration of a topic akin to elements of this one.

 

All I have said is that such opinions – even though not crystallised - carry more weight than ours, as any judicial obiter dicta inevitably does. No citable precedent was set, the transcript of proceedings 'merely' contains an example of a High Court judge’s thought processes on the subject. I have made clear, moreover, that I for one do not even agree that his tentative application of a boat’s definition necessarily applies to the definition of that boat’s actual use when translated into considerations of the 1995 Act – and the judge himself would not wish to be held to any of the opinions he expressed as he went along.

 

None of that gainsays the value of perusing a professional mind’s exploration of the topic.

[Paul C]

 

Not joking at all; you need to read things more carefully Paul.

 

That was not “half a judgment” – it was no judgment at all; it is a record of judicial deliberations as the judge enunciated his own musings over a developing consideration of a topic akin to elements of this one.

 

All I have said is that such opinions – even though not crystallised - carry more weight than ours, as any judicial obiter dicta inevitably does. No citable precedent was set, the transcript of proceedings 'merely' contains an example of a High Court judge’s thought processes on the subject. I have made clear, moreover, that I for one do not even agree that his tentative application of a boat’s definition necessarily applies to the definition of that boat’s actual use when translated into considerations of the 1995 Act – and the judge himself would not wish to be held to any of the opinions he expressed as he went along.

 

None of that gainsays the value of perusing a professional mind’s exploration of the topic.

 

What I think I need to do, is not read things at all, rather than half reading them (or fully reading them but only half understanding them) and then posting half an idea from my semi-understanding of the stuff. I simply don't have the time to read everything, and I'm reluctant to make my own mind up based on incomplete facts. I admire you for the dedication you've given and the hours and hours poring over legal texts and documentation, but at the end of the day is is enjoyable? Does it make your boating more enjoyable? For me, those answers are reluctantly "no", I think I'll just get on with plain and simple boating. For some strange reason my style of boating never seems to brush with enforcement - maybe one day we all have something to fear - for now I suspect its a minority who are close to, or the wrong side of, a line though.

Edited June 27, 2015 by Paul C

[NigelMoore]

 

at the end of the day is is enjoyable? Does it make your boating more enjoyable? For me, those answers are reluctantly "no", I think I'll just get on with plain and simple boating.

 

Perfectly valid and understandable position to take. I would have taken the same position had I been permitted to. Now that there appears to be an end to the authority's assaults on my situation, the need to interest myself in the legal side of things has diminished, and I am almost beginning to bore myself, which is why I have kept out of this particular topic hitherto [i don’t think I expressed any opinions of my own here have I?]

[larkshall]

Oh for god sake put it before the law lords. Get a ruling, let's get some precedence. I understand that's how the law thinks it works. Make the lot of them work pro bono whilst we are at it.