general terms and conditions.

[Wanderer Vagabond]

The concept of "reasonable" is even more well established in law. The trouble with having a specific list of criteria for not assigning a houseboat certificate is that the whole process fails or gives a nonsensical result as soon as some situation not envisaged by whoever wrote the list arises. Hence the use of the word "reasonable", to be interpreted as it would be by "the man on the Clapham omnibus".

I know that 'reasonable' is established in law, it still gives the lawyers a field day. I have personally heard them debate for nearly 40 minutes on what constituted 'reasonable suspicion', and this was just in Magistrates Court.

Edited June 3, 2016 by Wanderer Vagabond

[onionbargee]

The common sense definition of a houseboat in this country to me as a long time boat dweller is one that is not intended to move, but is just a form of querky housing. Usually old unseaworthy vessels, with no engines, or sheds on pontoons, or converted hoppers, or dumb barges. Having no means of propulsion would be normal for a houseboat.

[NigelMoore]

 

– issue of boat licences is NOT a matter of contract, certainly as ordinarily understood; it is a matter of statutory obligation.

 

 

As a matter that may be of interest to those concerned with these arguments and/or historical points, I should clarify that the above statement holds true only post the imposition of mandatory licences.

 

It is an interesting fact [well I find it so] that long before the mandatory requirement following the 1976 Byelaw, annual pleasure boat licences were issued to those that requested them. As early BW Board reports revealed, such licences were considered by BW to be a far greater financial benefit to them than collection of tolls under the multitudinous formulae of the enabling Acts – even though the annual fee might be far less than that obtainable under the toll system. It would seem that the administration and collection of tolls was itself so costly that the apparent disparity with that charged for an annual licence was more than made up for.

 

BW were not the first to see this – before them, even the original canal companies issued boat licences to pleasure boats, as did the British Transport Commission. These being outwith any legislative underpinning, the grant of them was a matter purely of voluntary contract, and I imagine that any T&C’s attached to those would have been binding.

 

It is important to realise that such licences could not have been lawfully imposed upon unwilling boat owners – pleasure boats could always have chosen to be charged according to the various systems then extant as the legislated alternative. Cumbersome and expensive as that could be in certain parts of the system – and most especially perhaps, time-consuming for those planning long journeys – it is no surprise that they were often a preferable option for both parties.

 

Being a matter of voluntary agreement then, those licences would have been enforceable civil contracts subject to the terms agreed. Needless to say perhaps, even back in the 1960’s, BW were nonetheless portraying these licences as a compulsory requirement [except for the rivers].

 

[onionbargee]

What are the legal consequences of breaking a condition in the licence contract, but not one based on any legislation ?

 

You then in theory have a licence but have broken the licence contract ?

Edited June 12, 2016 by onionbargee

[Tony Dunkley]

What are the legal consequences of breaking a condition in the licence contract, but not one based on any legislation ?

 

You then in theory have a licence but have broken the licence contract ?

 

You can't possibly break or breach the conditions 'in the licence contract', because Licences [in compliance with statute] are NOT contracts.

Edited June 12, 2016 by Tony Dunkley

[NigelMoore]

 

You can't possibly break or breach the conditions 'in the licence contract', because Licences [in compliance with statute] are NOT contracts.

 

Exactly. The point of my previous post was to highlight the difference between a licence entered into on a voluntary basis outwith statutory legislation, and a mandatory licence issued in conformity with statutory obligations.

 

CaRT are persisting, nonetheless, with their contrary stance in Leigh’s case – their amended Defence claims:

 

“A consequence of pursuing ‘only’ a monetary claim is that the boater and the applicable vessel will not have agreed to the numerous terms and conditions applicable to all boaters for the benefit and safety of all those using the inland waterways owned and/or managed by the Trust.”

 

This is classic muddying of judicial waters; adherence to the enforceable conditions of use of the waterways is obligatory under legislation, and not dependant upon agreement by the boater. Nor is issue of the licence/certificate subject to such agreement.

 

The legal consequences of breaching any of the legislated conditions of use of the waterways are that you will be subject to the legislated sanctions relating to those; revoking the boat licence is not one of those sanctions.

 

 

 

edit for grammar

 

Edited June 13, 2016 by NigelMoore

[onionbargee]

OK got that, let me re write the question to, what are the consequences for breaching the terms and conditions ?

[NigelMoore]

The consequences of breaching legally enforceable conditions involve, apart from a criminal record in most cases, fines ranging from £50 to £1,000 with associated legal costs.

[Alan de Enfield]

OK got that, let me re write the question to, what are the consequences for breaching the terms and conditions ?

 

Maybe you could be more specific as to which T&Cs you have (or wish) not complied with.

 

Maybe then you can be advised if that particular T&C is legally enforceable.

[Paul C]

Did you freely sign or agree to the T&Cs?

Is the particular T&C reasonable?

 

If the answers to the above are "yes" and "yes" then in theory you could be sued in breach of the T&C you broke as a civil matter. Of course, either scenario (that you didn't freely agree to them, or that they're unreasonable) is a defence.

[onionbargee]

 

Maybe you could be more specific as to which T&Cs you have (or wish) not complied with.

 

Maybe then you can be advised if that particular T&C is legally enforceable.

I mean any ones that are not a rewording of legislation, and are soley CRT creations.

[Alan Taylor]

Ok. Here's one;

 

7.5.

 

What are the legal sanctions for this clause and can CRT remove or refuse a license for breach?

 

( given Section 17 iii c being met )

 

 

I think this one particularly interesting as it's independent of primary licensing legislation.

Edited June 12, 2016 by Alan Taylor

[onionbargee]

6.3 late payment charge.

 

6.5 (ii) and (iii)

 

8.4

 

8.5

 

Schedule 2 (6) especially " If we do need to move the boat, you agree to repay our costs. "

 

Schedule 2.

 

14 days or such longer period as is reasonable in the circumstances Circumstances where it is reasonable to stay in one neighbourhood or locality for longer than 14 days are where further movement is prevented by causes outside the reasonable control of the boater.

 

Examples include temporary mechanical breakdown preventing cruising until repairs are complete, emergency navigation stoppage, impassable ice or serious illness (for which medical evidence may be required). Such reasons should be made known immediately to local Trust enforcement staff with a request to authorise a longer stay at the mooring site or nearby. The circumstances will be reviewed regularly and reasonable steps (where possible) must be taken to remedy the cause of the longer stay e.g. repairs put in hand where breakdown is the cause. Where difficulties persist and the boater is unable to continue the cruise, the Trust reserves the right to charge mooring fees and to require the boat to be moved away from popular temporary or visitor moorings until the cruise can recommence.

[Giant]

Did you freely sign or agree to the T&Cs?

Is the particular T&C reasonable?

 

If the answers to the above are "yes" and "yes" then in theory you could be sued in breach of the T&C you broke as a civil matter. Of course, either scenario (that you didn't freely agree to them, or that they're unreasonable) is a defence.

Any such suit would be based on breach of contract, but the key question here is whether a contract exists at all, not the remedies and defences available if it does.

 

One theory is that the issuing of the license is, in whole or part, a matter of contract law, and that the T&Cs are thus terms of a contract that the licensee can be held in breach of. CRT seem to be taking this position.

 

The other theory is that there is in fact no contract between the boater and CRT, only a license issued and paid for as required by statute, and that any attached conditions beyond those established in statute are void. Nigel, Tony and others are of this view.

 

I think their argument can be put in terms of contract law: there is no contract because the basic requirements of a contract (offer, acceptance, valuable consideration) are not met.

 

In fact they might argue that none of the requirements for a contract are met:

• CRT do not offer a license; the availability of a license is established by statute so any "offer" from them or lack thereof has no effect.

• The licensee does not need to accept such conditions as are established in statute; they are already bound by them so any "acceptance" or lack thereof has no effect.

• For any conditions beyond those established in statute, there is no valuable consideration given in exchange for the licensee's acceptance of these conditions. The issuing of the license itself cannot count as consideration because it is required by statute.

[Arthur Marshall]

As far as I recall, terms and conditions attached to an agreement can always be challenged in court. I tend to regard CRT's T&Cs as guidelines for sensible and considerate boating practices, which in general they are. I suspect most of those who continually fall foul of CRT's guidelines are those who aren't that bothered about being considerate or, in fact sensible. Not, I hasten to add, all, because on occasion CRT (and some of its employees) can behave like a corporate idiot too.

[mayalld]

 

Any such suit would be based on breach of contract, but the key question here is whether a contract exists at all, not the remedies and defences available if it does.

 

One theory is that the issuing of the license is, in whole or part, a matter of contract law, and that the T&Cs are thus terms of a contract that the licensee can be held in breach of. CRT seem to be taking this position.

 

The other theory is that there is in fact no contract between the boater and CRT, only a license issued and paid for as required by statute, and that any attached conditions beyond those established in statute are void. Nigel, Tony and others are of this view.

 

I think their argument can be put in terms of contract law: there is no contract because the basic requirements of a contract (offer, acceptance, valuable consideration) are not met.

 

In fact they might argue that none of the requirements for a contract are met:

• CRT do not offer a license; the availability of a license is established by statute so any "offer" from them or lack thereof has no effect.

• The licensee does not need to accept such conditions as are established in statute; they are already bound by them so any "acceptance" or lack thereof has no effect.

• For any conditions beyond those established in statute, there is no valuable consideration given in exchange for the licensee's acceptance of these conditions. The issuing of the license itself cannot count as consideration because it is required by statute.

 

 

Actually, an interesting side issue arises here.

 

I would agree that licences are a creature of statute rather than contract, but can we actually be clear as to whence the licence derives its statutory origin?

 

It clearly isn't the 1995 Act, or the 1983 Act.

[David Mack]

A consequence of pursuing only a monetary claim is that the boater and the applicable vessel will not have agreed to the numerous terms and conditions ....

 

How does an "applicable vessel" agree to anything?

[NigelMoore]

 

Actually, an interesting side issue arises here.

 

I would agree that licences are a creature of statute rather than contract, but can we actually be clear as to whence the licence derives its statutory origin?

 

It clearly isn't the 1995 Act, or the 1983 Act.

It is the 1975 Act.

[Mike Todd]

 

As a matter that may be of interest to those concerned with these arguments and/or historical points, I should clarify that the above statement holds true only post the imposition of mandatory licences.

 

It is an interesting fact [well I find it so] that long before the mandatory requirement following the 1976 Byelaw, annual pleasure boat licences were issued to those that requested them. As early BW Board reports revealed, such licences were considered by BW to be a far greater financial benefit to them than collection of tolls under the multitudinous formulae of the enabling Acts – even though the annual fee might be far less than that obtainable under the toll system. It would seem that the administration and collection of tolls was itself so costly that the apparent disparity with that charged for an annual licence was more than made up for.

 

BW were not the first to see this – before them, even the original canal companies issued boat licences to pleasure boats, as did the British Transport Commission. These being outwith any legislative underpinning, the grant of them was a matter purely of voluntary contract, and I imagine that any T&C’s attached to those would have been binding.

 

It is important to realise that such licences could not have been lawfully imposed upon unwilling boat owners – pleasure boats could always have chosen to be charged according to the various systems then extant as the legislated alternative. Cumbersome and expensive as that could be in certain parts of the system – and most especially perhaps, time-consuming for those planning long journeys – it is no surprise that they were often a preferable option for both parties.

 

Being a matter of voluntary agreement then, those licences would have been enforceable civil contracts subject to the terms agreed. Needless to say perhaps, even back in the 1960’s, BW were nonetheless portraying these licences as a compulsory requirement [except for the rivers].

 

Also, pleasure boats would have presented a challenge to the toll collection system then in place. As I understand it, each boat was measured and records kept of its depth for each step in tonnage. When a toll point was passed, a gauge stick was used to determine the load and the toll calculated from it.

 

Apart from fuel and water, pleasure boats change their displacement very little and so when passing a toll point would presumably have a zero toll to pay unless a schemer was added that meant they paid a fixed amount. Much simpler to go for an annual pass.

 

A key factor in determining any charging system (whether commercial or state) is the cost of collection.

[onionbargee]

Wasn't it mentioned on here that NABO had issued a guide to not agreeing to the T & C's ?

 

Has anyone got a copy of that ?

[mayalld]

It is the 1975 Act.

 

That is the point though.

 

The 1975 Act (quite apart from inexplicably repeating the changes in the bye-laws of that time) simply acknowledges the prior existence of licences.

 

I am drawn to the conclusion that licences are not actually explicitly legislated into existence at all, but rather they came into existence as an annual toll for a pleasure boat, and that they may now rely for their foundation upon s43 of the 1962 Act.

[NigelMoore]

Also, pleasure boats would have presented a challenge to the toll collection system then in place. As I understand it, each boat was measured and records kept of its depth for each step in tonnage. When a toll point was passed, a gauge stick was used to determine the load and the toll calculated from it.

 

Apart from fuel and water, pleasure boats change their displacement very little and so when passing a toll point would presumably have a zero toll to pay unless a schemer was added that meant they paid a fixed amount. Much simpler to go for an annual pass.

 

A key factor in determining any charging system (whether commercial or state) is the cost of collection.

 

An accurate assessment. Mostly, pleasure boat usage was free. However the difficulty of assessing the relevant toll where allowed for was not because of measurement anomalies.

 

For example [and I presume this would illustrate your “unless a schemer was added that meant they paid a fixed amount”], the 1793 GJCC Act allowed private pleasure boats to use locks free so long as they did not use water in doing so [much of the canal utilised existing rivers]. If no water was flowing over the weir, then the pleasure boat would be charged a fixed fee AS IF it were a commercial boat carrying a fixed tonnage of a particular cargo – I cannot remember off-hand what that was. No measurement required – but obviously requiring an employee present at every such lock, unless the system was operated on an honour scheme.

 

Of course, every canal company had a different set of such rules, which compounded the difficulty for boats travelling across several networks, especially prevalent post nationalisation under the BTC.

 

[NigelMoore]

 

The 1975 Act (quite apart from inexplicably repeating the changes in the bye-laws of that time) simply acknowledges the prior existence of licences.

 

I am drawn to the conclusion that licences are not actually explicitly legislated into existence at all, but rather they came into existence as an annual toll for a pleasure boat, and that they may now rely for their foundation upon s43 of the 1962 Act.

 

 

I don’t quite understand this I am afraid, can you elaborate?

 

The licences referred to in the 1975 Act were those then existing as had been supplied by BW [and the BTC and original canal companies before them] on a pragmatic basis outwith any legislation, as explained in my previous post. Prior to 1975 these had not been "explicitly legislated into existence" as you correctly observe; they had existed since long before even the 1962 Transport Act.

 

The bit I do not understand is your comment about the Act “inexplicably repeating the changes in the bye-laws”. The 1975 Act introduced – for the first time – an extension of the 1954 byelaw making powers. The extension of powers was specifically granted in order that byelaws could be introduced controlling entry onto, keeping and using boats on the canals, which hitherto BW could not have controlled [thereby giving the lie to the vaunted powers claimed for s.43].

 

The critical extension of power was enabling byelaws to be introduced “for excluding any vessel from the canal, prohibiting the use by any vessel of the canal, or prohibiting the use of the canal except in compliance with such conditions as the Board may prescribe . . .” Very obviously, the 1962 Act was not considered as having covered this - “the purposes of this Act [1975] cannot be effected without the authority of Parliament”.

 

Having now been empowered to make such byelaws, the following year saw the introduction of the byelaw specifically making possession of a pleasure boat licence a mandatory legislated condition for bringing onto, letting for hire, keeping or using a pleasure boat on the canals.

 

It is the 1976 byelaw that makes the pleasure boat licence mandatory under legislation; it is the primary legislation of the1975 Act that granted the power to make that secondary legislation.

 

[mayalld]

 

 

I don’t quite understand this I am afraid, can you elaborate?

 

The licences referred to in the 1975 Act were those then existing as had been supplied by BW [and the BTC and original canal companies before them] on a pragmatic basis outwith any legislation, as explained in my previous post. Prior to 1975 these had not been "explicitly legislated into existence" as you correctly observe; they had existed since long before even the 1962 Transport Act.

 

The bit I do not understand is your comment about the Act “inexplicably repeating the changes in the bye-laws”. The 1975 Act introduced – for the first time – an extension of the 1954 byelaw making powers. The extension of powers was specifically granted in order that byelaws could be introduced controlling entry onto, keeping and using boats on the canals, which hitherto BW could not have controlled [thereby giving the lie to the vaunted powers claimed for s.43].

 

The critical extension of power was enabling byelaws to be introduced “for excluding any vessel from the canal, prohibiting the use by any vessel of the canal, or prohibiting the use of the canal except in compliance with such conditions as the Board may prescribe . . .” Very obviously, the 1962 Act was not considered as having covered this - “the purposes of this Act [1975] cannot be effected without the authority of Parliament”.

 

Having now been empowered to make such byelaws, the following year saw the introduction of the byelaw specifically making possession of a pleasure boat licence a mandatory legislated condition for bringing onto, letting for hire, keeping or using a pleasure boat on the canals.

 

It is the 1976 byelaw that makes the pleasure boat licence mandatory under legislation; it is the primary legislation of the1975 Act that granted the power to make that secondary legislation.

 

 

What I found inexplicable is that sections 3 and 4 impose a duty to display a licence. They don't permit byelaws to be made for that purpose, yet the display provisions were already in the draft 1975 byelaws (confirmed AFTER the act), and in the replacement 1976 byelaws. It seems entirely unnecessary to do so.

 

So, onto licences!

 

The 1975 Act doesn't actually bring licences into being (indeed we can see from the text of the 1971 Act that licences existed then), and I'm still comfortable saying that the power to issue licences must have derived from the much disputed s43 of the 1962 Act, and prior to that to a creative interpretation of the right to make byelaws for tolls given in the 1954 Act.

 

Interestingly, section 5 of the 1975 Act appears to give the board wide powers (powers not repealed by the 1983 or 1995 Acts) that actually now convince me that those Acts were not necessary, and that by attempting to overdo it, confusion has been created.

[NigelMoore]

 

What I found inexplicable is that sections 3 and 4 impose a duty to display a licence. They don't permit byelaws to be made for that purpose, yet the display provisions were already in the draft 1975 byelaws (confirmed AFTER the act), and in the replacement 1976 byelaws. It seems entirely unnecessary to do so.

 

So, onto licences!

 

The 1975 Act doesn't actually bring licences into being (indeed we can see from the text of the 1971 Act that licences existed then), and I'm still comfortable saying that the power to issue licences must have derived from the much disputed s43 of the 1962 Act, and prior to that to a creative interpretation of the right to make byelaws for tolls given in the 1954 Act.

 

Interestingly, section 5 of the 1975 Act appears to give the board wide powers (powers not repealed by the 1983 or 1995 Acts) that actually now convince me that those Acts were not necessary, and that by attempting to overdo it, confusion has been created.

 

 

I have the feeling you are misunderstanding me/the legislation.

 

I see no problem with sections 3 & 4 respecting the requirement to display your certificate or licence. No-one has suggested licences did not exist prior to 1975; nor that these were not a valid alternative choice to existing charges structures, entitling the boat owner to freedom from payment for those [in the same way that holders of pleasure boat certificates were “exempt from payment of any lock toll”]. In fact these pleasure boat licences were recognised back in the immediately previous 1974 Act, wherein the certificate charges could not be increased by a proportion greater than the proportion by which licences for non-river waterways were increased.

 

The question at issue [as I understood it to be] was whether these were mandatory licences issued under force of statute. They were not. The mandatory licences were brought into being only post the 1975 Act. Subsequent to the passage of the 1976 Byelaw rendering pleasure boat licences mandatory, it was possible [and only then], to scrap the rigid charges scheme of 1971 as amended in 1974, and peg the certificate charges to 60% of the by-now mandatory licences under the terms of the 1983 Act.

 

Any interpretation of the right to demand tolls would have to be creative indeed, that sought to transform that always existent obligation to pay tolls, into a ‘licence’ to be on the canals; it was in fact legally impossible to demand a licence in circumstances where the PRN over all canals still subsisted – a situation unaltered until after passage of the 1968 Act. Hence even the 1962 Act could not empower any demand for a boat ‘licence’ – regardless of what charges might be imposed; permission to keep and use boats on the canals was by right of statute until the abolition of that right in 1968.

 

Again, you seem to misinterpret the effect of s.5 of the 1975 Act. It did indeed give greater powers respecting the imposition of conditions for bringing boats onto the canals – but this did NOT empower unilateral imposition; it created the avenue for introducing these via byelaws, and until such byelaws were approved and passed, the powers remained latent only.

 

It would repay you to read through the Select Committee minutes for the following Acts, which clarify the principles involved. Those Acts WERE necessary to impose that which they did– BW were asked why they had not promoted byelaws instead, for the extra powers of control that they were seeking, and given their stated disinclination for going that route, primary legislation was the only alternative.

 

 

 

edit to remove redundant duplicated word

 

Edited June 13, 2016 by NigelMoore