Does a Mooring Reset the 14 Days Rule ?

[NigelMoore]

How can it be guaranteed the person has received it?

 

Further to PaulC's comment, I can’t say I am familiar with electronic avenues other than email either, but reports on the cases I referred to gave evidence demonstrating to the Court’s satisfaction that the notices had been received. e.g. –

 

“Mr Justice Teare questioned whether TFS could verify that the Facebook account belonged to the right Mr De Biase, and whether he was in the habit of checking it.

The court heard that Mr De Biase was friends with other TFS colleagues, and that the account was known to be in use because he had accepted a few recent friend requests.”

 

[Horace42]

 

This is answered fairly comprehensively in the 1983 Act: -

 

"17.— (l) All notices authorised or required to be served on any person by or under this Act shall be in writing.

 

(2) Any notice such as is referred to in subsection (1) of this section may be served—

 

( a ) by delivering it to the person upon whom it is to be served or by leaving it at his proper address or by sending it by post to him at that address; or

 

( b ) if the person is a body corporate, by serving it in accordance with paragraph (a) of this subsection on the secretary or clerk of that body; or

 

( c ) if the person is a partnership, by serving it in accordance with paragraph (a) of this subsection on a partner or a person having the control or management of the partnership business; or

 

( d ) if in the case of a notice relating to a vessel the name and address of the person upon whom the notice is to be served cannot after reasonable inquiry be ascertained, by exhibiting it in a conspicuous position on or near the vessel; or . . ."

 

Sub-sections (3) & (4) finesse some details.

 

If the vessel is licensed or registered, then the latest address for service will be available to CaRT; if out of date, and the boat cannot be physically located, then it obviously has moved on from where it was recorded as 'overstaying' and has thus complied with the CC requirements anyway!

 

It is worth noting that where notices cannot be posted or hand delivered, they can be left on or near the vessel, so that this need for delivery in no way justifies violation of the strictures under s.7(2)( b ).

Thanks for that Nigel. I am fairly happy that my limited knowledge, augmented by your help here on these things, will keep me out of trouble with CRT.

 

And probably going off topic - having read through all this, my simplistic view is that the problem would go away if the mooring license was included in the cruising license. The extra money would pay for extra moorings. Boaters with a home mooring would get a discount because they are not using public moorings (anything like as much).

Continuous cruisers (as they have evolved because they have no home mooring) would then pay something towards public moorings they use free of charge - that could be for 365 days a year (or nights?).

Just a thought.

[MtB]

Thanks for that Nigel. I am fairly happy that my limited knowledge, augmented by your help here on these things, will keep me out of trouble with CRT.

 

And probably going off topic - having read through all this, my simplistic view is that the problem would go away if the mooring license was included in the cruising license. The extra money would pay for extra moorings. Boaters with a home mooring would get a discount because they are not using public moorings (anything like as much).

Continuous cruisers (as they have evolved because they have no home mooring) would then pay something towards public moorings they use free of charge - that could be for 365 days a year (or nights?).

Just a thought.

 

 

That's a seriously Good Idea, but my goodness you're gonna be in for a slating for suggesting it!

 

Almost as good an idea as licencing by deck area instead of just length, rather like Thames licencing!

[Jerra]

 

Your version of fair though.

 

Why need there be any guarantee of receipt? Surely sending is good enough. The burden of proof that it be received would be too high. For example let's take a simple letter sent through the post. 99.9% or whatever it is, of mail, gets delivered. For a sender to prove its receipt, would entail greater expense (tracking signed for post) and even then is no GUARANTEE - the recipient could simply say that someone else signed for it instead and he never saw it. To receive a guarantee would require the receipient to basically admit that they received it. Thus, an easy get-out would be to simply lie and say you never received it, even if you did - case closed.

 

The law quite rightly presumes that an item of post sent, is deemed to have been received.

In that case it seems strange that CRT always seem to be at fault if documents haven't been received. All they need to say is they posted them. It may be legal but it certainly seems (to me at least) to be against natural fairness and justice. For things to happen to a person when they perhaps haven't a clue what is going on doesn't seem right or fair to me.

 

I must have a very warped sense of how people should be treated.

[Paul C]

In that case it seems strange that CRT always seem to be at fault if documents haven't been received. All they need to say is they posted them.

 

I wasn't aware that CRT published details of legal proceedings except for a subset of the judgements.

 

It may be legal but it certainly seems (to me at least) to be against natural fairness and justice. For things to happen to a person when they perhaps haven't a clue what is going on doesn't seem right or fair to me.

 

I must have a very warped sense of how people should be treated.

 

CRT also affix any important document onto the boat itself, especially if there is some doubt of the validity of the postal address on file. I am sure you have seen "patrol notice" envelopes stuck to boats occasionally. If a boater wants to proverbially stick their head in the sand and ignore, or pretend to ignore, things like this, then that's up to them. Given the number of warnings before legal action is taken, a boater who doesn't have a clue what's going on is somewhat unrealistic. They know they're taking the piss.

[Jerra]

 

I wasn't aware that CRT published details of legal proceedings except for a subset of the judgements.

 

 

CRT also affix any important document onto the boat itself, especially if there is some doubt of the validity of the postal address on file. I am sure you have seen "patrol notice" envelopes stuck to boats occasionally. If a boater wants to proverbially stick their head in the sand and ignore, or pretend to ignore, things like this, then that's up to them. Given the number of warnings before legal action is taken, a boater who doesn't have a clue what's going on is somewhat unrealistic. They know they're taking the piss.

Sorry I was just using CRT as an example and I seem to remember various posts on here complaining about legal documents arriving not complete. In which case all the offenders (i.e. the people deliberately delaying/hiding things) have to do is "well it was posted".

[MtB]

In that case it seems strange that CRT always seem to be at fault if documents haven't been received. All they need to say is they posted them. It may be legal but it certainly seems (to me at least) to be against natural fairness and justice. For things to happen to a person when they perhaps haven't a clue what is going on doesn't seem right or fair to me.

 

I must have a very warped sense of how people should be treated.

 

 

What do you think CRT should do then, in cases when everything they ever send to a boater is claimed not to have been seen?

 

The usual reason for this happening I suspect, is letters are (understandably) sent to the address given on the licence application form, but the licence holder never goes there because they live aboard.

 

How do you propose CRT serve notices on such boaters?

[Paul C]

Sorry I was just using CRT as an example and I seem to remember various posts on here complaining about legal documents arriving not complete. In which case all the offenders (i.e. the people deliberately delaying/hiding things) have to do is "well it was posted".

 

I think you're coming across as somewhat naive here.

[Jerra]

 

 

What do you think CRT should do then, in cases when everything they ever send to a boater is claimed not to have been seen?

 

The usual reason for this happening I suspect, is letters are (understandably) sent to the address given on the licence application form, but the licence holder never goes there because they live aboard.

 

How do you propose CRT serve notices on such boaters?

As has been pointed out they can be fixed to the boat or served by hand there are CRT staff out along the canals on a regular basis. However it is the general principle I am amazed at not just as applied to CRT.

[Alan de Enfield]

 

 

How do you propose CRT serve notices on such boaters?

 

Well - according to C&RT their Enforcement team cover EVERY MILE of their waterways at least every 14 days, presumably the boat in question will be seen within 2 weeks and the notice can be attached to the boat and a photograph taken to prove the notice is affixed (as per traffic wardens do)

[Jerra]

 

I think you're coming across as somewhat naive here.

Call me what you like I think a system which can (and remember I am not just talking about CRT) have important documents dispatched with no proof they are ever received is open to all sorts of misuse.

[MtB]

Call me what you like I think a system which can (and remember I am not just talking about CRT) have important documents dispatched with no proof they are ever received is open to all sorts of misuse.

 

 

As has been pointed out that problem is symetrical. Recipients are just as capable of lying about documents being not received as senders are about them being posted. The Post Office will issue a 'proof of posting' though, so if the court has doubts about the honesty of a sender the proof of posting can prove otherwise.

[Jerra]

 

 

As has been pointed out that problem is symetrical. Recipients are just as capable of lying about documents being not received as senders are about them being posted. The Post Office will issue a 'proof of posting' though, so if the court has doubts about the honesty of a sender the proof of posting can prove otherwise.

It is obvious it can be used by both sides but that doesn't make it right (OK my version of what is right must be wildly different to most other peoples).

 

When there are clearly methods (certainly for snail mail and email don't understand the others) Iof ensuring the documents has reached the required person I see no reason why they should not be used.

[MtB]

As Nigel pointed out earleir, there are methods of proving delivery to an address but none to prove the intended recipient read it.

[Jerra]

As Nigel pointed out earleir, there are methods of proving delivery to an address but none to prove the intended recipient read it.

If it has gone to the correct (well the given) address then it is the recipients fault if it isn't read. It is ensuring it has been received that concerns me. It is possible incidentally to show an email has been opened as I am sure you know but again not necessarily read.

[Horace42]

How can it be guaranteed the person has received it? I can understand a message on email saying the email has been read but knowing nothing about the other methods I don't know.

 

Surely if there is no proof of it being received it isn't really an acceptable way to do things in a system which is supposed to be legally unbiased and fair.

I think it is more of a question in law of properly being 'served' which presumes receipt. Which Nigel has given precise details. But here we seem to be talking of a Court procedure whereas at the outset where these things start, we are nowhere near any court.

In most cases, there has to be a follow up action at each stage, from which it should emerge there is a practical problem of being sure a notice was in fact delivered - and 'received' - and it is the culmination of 'aborted' steps and what action was taken to resolve the matter that the Court deliberates on.

I would not be surprised if a Court accepted carrier pigeon as a valid evidence of service-of-notice if it was consistent within the context of the case - but I guess in our case we have just got back to our boat, stood on the towpath, reading a notice pinned to the mast telling us (paraphrased) we are deep doo-doos if we don't move our boat sharpish. CRT have to follow up to see if you are still there.in order to take further action - and so on..

 

.

[Horace42]

 

I must have a very warped sense of how people should be treated.

You are not alone. But as service of notice is such a critical part of the process it is not a simple case of 'posting' a letter. As Nigel has said there are laws to observe. If it was you sending out a notice, and your whole case depended on evidence of proper service, you would be wise to use a recognised and accepted delivery service - eg. Registered mail or courier etc - to prove delivery - and a suitable follow-up action. Without which, your case is likely to fail in court - much the same as it has already failed in practice.

On balance, I think you will find the prosecutor of any action at a disadvantage and the innocent citizen's freedoms are well protected by the way we use the law in practice - not least the cost of fighting it - and worse - the cost of losing it - tends to focus attention on issues before anything gets to court. These things happen slowly and evolve slowly.

Where people like CRT, albeit with intrinsic powers to speed things up by taking unilateral action, at some stage of enforcement, have to resort to physical force - which they can't use without a court order.

This could be by persons or machines against persons or machines. Get this wrong and soon you find yourself in breach of criminal law where action is swift and punitive.

I think well intentioned good citizens need not worry.

[Horace42]

 

 

That's a seriously Good Idea, but my goodness you're gonna be in for a slating for suggesting it!

 

Almost as good an idea as licencing by deck area instead of just length, rather like Thames licencing!

Well Mike, "....all quiet on the Western Front...." - at the moment.

I have no objection to considering any alternative method of calculating a license fee providing it has some relevance to actual usage - and equally the cost of the providing the service - as long it is easily 'measured' and managed..

I know nothing of Thames licensing by deck area. Is this something to catch wide beam boats....?. and why not if it costs more to provide a waterways system to cater for them.

.

....but a bit off-topic...and doesn't help much with the 14 day rule - other than it might go away if there were more moorings and enough money to pay for them.

[Horace42]

The court heard that Mr De Biase was friends with other TFS colleagues, and that the account was known to be in use because he had accepted a few recent friend requests.”

 

I appreciate we are dealing with CRT issues and they have to observe certain procedures that are supposed to be ethical and largely public knowledge (...on their website) but in my days of running my business (I have long since retired) we used a few commercial 'tricks' to prove delivery if you suspected a problem.

This was long before emails - but when faxes started.up.

You send a fax to say you are writing to them by post on an important issue you need them to act on, but reference to their invoice no???, you can't send cheques by fax, so you will enclose it with the letter.

You write the letter detailing the issue asking for a reply (but not expecting one) and add a PS along the lines of "Re my fax I enclose my cheque in the sum of £.... in payment of you invoice no......."

Then wait for the cheque to be cashed. You can then produce an independent bank statement as proof of receipt.

If you are really devious, you make and error writing the cheque - so it 'bounces' - so now there is an exchange of letters as well - more proof.

This technique had it's limits. The usual reason for having to write a 'stiff' letter was to get your own invoices paid.

[Horace42]

The law quite rightly presumes that an item of post sent, is deemed to have been received.

You are probably right if it was sent to the 'official' address by an accepted means of post and if critical then registered or recorded or by courier.

But the real issue is the next step. Although clearly delivered, there is a presumption of non-receipt and failure to respond (for whatever reason) that invokes a follow-up action - that has to take account of the reasons for the failure of the first step. An appropriate strategy has to be put in place to achieve the desired result.

It is these progressive steps that build a case that can be taken to Court.- or if CRT have internal powers to take unilateral action - say to remove your boat and sell it to recover their costs - purely on the strength of having done nothing else but post some letters - then to do so without first obtaining a Court order - is a bit iffy to say the least.

[Paul C]

You are probably right if it was sent to the 'official' address by an accepted means of post and if critical then registered or recorded or by courier.

But the real issue is the next step. Although clearly delivered, there is a presumption of non-receipt and failure to respond (for whatever reason) that invokes a follow-up action - that has to take account of the reasons for the failure of the first step. An appropriate strategy has to be put in place to achieve the desired result.

It is these progressive steps that build a case that can be taken to Court.- or if CRT have internal powers to take unilateral action - say to remove your boat and sell it to recover their costs - purely on the strength of having done nothing else but post some letters - then to do so without first obtaining a Court order - is a bit iffy to say the least.

 

Agree BUT anecdotally, if CRT are in any doubt of the postal address (for example, if they have not had a reply to a letter sent there) they tend to affix the notice to the boat itself. Let's step back from the highly-controversial section 8s which appear in the threads here and consider the case of an end-of-life, part sunken 16' cruiser or something like that. They may very well have doubts about the identity of the boat, its ownership, etc etc so they fix the notice on the boat itself. If they don't hear back it could be quite reasonable that the owner (who dumped it some time ago) is no longer contactable. But there's still a half-sunken boat polluting the canal and getting in the way of a lock landing etc. I would say its reasonable for them to stick notices on that boat, wait the prescribed time, then move/dispose of the wreck.

 

Taking it to the other extreme, imagine a good quality narrowboat worth several tens of thousands of pounds. The boat is licensed and the owner/licence holder might live on the boat but has a postal address for licence and other uses, and has accessing postal main down to a tee for those uses. For some or other reason, CRT decides to not licence it again, the boater digs their proverbial heels in and it escalates to a Section 8 process with a court appearance due. It would be folly for the boater to put their head in the sand and ignore all correspondance from CRT including not attending the court hearing. It would be an idiotic tactic. If the theoretical boater disagreed with CRT and was convinced he/she was in the right, they'd be better corresponding, and/or fighting in court. The risk of losing the boat is a huge one - why rely on a weak and unproven moral principle of "CRT must contact me, and prove I have received stuff even if I make it impossibly difficult".

 

Of course, real world cases are somewhere in between these. And I do appreciate there are specific issues surrounding liveaboard boaters receiving mail. But I remain firmly convinced that the responsibility of receiving post remains with the boater, and that CRT shouldn't be expending significant unreasonable extra effort to ensure receipt.

 

Put simply, the boater needs to accept their responsibility here.

[Alan de Enfield]

 

.......... It would be folly for the boater to put their head in the sand and ignore all correspondance from CRT including not attending the court hearing. It would be an idiotic tactic. If the theoretical boater disagreed with CRT and was convinced he/she was in the right, they'd be better corresponding, and/or fighting in court. The risk of losing the boat is a huge one ................

 

From what I have seen / read C&RT do not take anyone to court (section 8) for any reason except the fact that the boat is not licenced.

 

You cannot argue in court that the boat is licenced when it clearly is not because C&RT have decided not to renew the licence.

 

You are not at liberty to discuss why C&RT refused you a licence as that is not the court case - the court case is purely about not having a licence, nothing else is relevant.

[Horace42]

 

Put simply, the boater needs to accept their responsibility here.

Well yes, of course they do. And anyone in this predicament following this thread would be well advised to respond at the first opportunity.

In the first example, the boat owner would do well to keep well away. Presumably a sunken boat is a wreck and has little or no salvage value - and if the owner tuns up after all this time they are likely be landed with a large bill.

I can't say much about you second example. It seems to me there is 'communication' of sorts. For whatever reason a license is refused would be known to the owner, and if it was me, I would be the one trying to contact CRT, not the other way round. Again if it was me the only reason CRT would not issue a license is if I failed to pay them. Any other reason would presumable have a history leading to refusal and backed up by some sort of official communication - and a case can be built up either way - to comply - or either party to take Court action.

I can't advise here. If it was me, I would look at all the options available to me - and probably make an economic one - that is, the cheapest way out.- which is likely by avoiding Court action - this more the province where Nigel comes in.

But I am certain none of the options chosen would include ignoring notices from CRT.

[Horace42]

You are not at liberty to discuss why C&RT refused you a licence as that is not the court case - the court case is purely about not having a licence, nothing else is relevant.

That is interesting, and makes sense. But what are they taking you to court for? it must be to obtain some legal powers to compel you take some sort of action, or for themselves to take action - and to claim damages to recover costs incurred. If the latter to sell your boat, or call in the bailiffs to obtain payment.

I can't say. I am not aware of any actual cases.

It all sounds a bit extreme if you could have done all this voluntarily in the first place.

[Tony Dunkley]

That is interesting, and makes sense. But what are they taking you to court for? it must be to obtain some legal powers to compel you take some sort of action, or for themselves to take action - and to claim damages to recover costs incurred. If the latter to sell your boat, or call in the bailiffs to obtain payment.

I can't say. I am not aware of any actual cases.

It all sounds a bit extreme if you could have done all this voluntarily in the first place.

 

I'm afraid it doesn't make any real sense at all, and the reason for that is simply that C&RT have become litigation junkies addicted to costly, inappropriate and pointless legal action in preference to the quicker, inexpensive, financially beneficial, and lawful remedies available to them to employ against genuine wrongdoers in both statute and byelaw.

 

Their much loved and misused Section 8 process makes no provision for the recovery of unpaid Licence/PBC fees, and nor did it go on to the statute books for that purpose, whereas S.5 of the 1983 BW Act and S.7(2) of the 1971 BW Act, both of which they studiously avoid the use of, were intended specifically for the recovery of unpaid charges/fees.

Edited July 5, 2016 by Tony Dunkley