section 8 canning dock ?

[Geo]

Just as a matter of passing interest, Mr Stoner QC at Leigh's last hearing brought the subject of Marlborough up, and commented that even he had to go and look it up when he read Leigh's Statement of Case. It is legislation that does not deserve such obscurity - and poor form of Mr Stoner to call for the Statement to be struck out that had afforded him an increase in education!

 

It is going to be part of the case regardless, so that will be interesting.

 

I wish that I could get up to London, I assume the case will be heard in London, to listen to the hearings

[NigelMoore]

It will be - in the Rolls Building, Fetter Lane, just a bit NE of the RCJ.

[Geo]

It will be - in the Rolls Building, Fetter Lane, just a bit NE of the RCJ.

 

Rolls Buildings

London EC4A 1NL

 

I will see if I can workout a way of getting there and talk to the court manager

[Tony Dunkley]

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

The contractual terms they cite as allowing them to do as they have, include clause 8 whereby any breach of the agreement entitles CaRT “at the licensee’s risk and expense but without prior notice to the licensee and without being answerable for any loss or damage of whatsoever nature occasioned thereby: - [8.5] to take such other action of whatsoever nature in relation to the Vessel as the Harbour Master may in his sole discretion determine.” [my bold]

 

So there is the legal basis for their action according to them.

 

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

 

They are also relying on clause 10.1.2 in the Berthing Agreement : ~

 

10.1.2 The Estate Owner shall be entitled at the Licensee's risk and expense but without prior notice to the Licensee and without being responsible for any loss or damage of whatsoever nature occasioned thereby to sell the Licensee's property at such time and in such manner as the Estate Owner in it's sole discretion determine and to deduct from the proceeds of sale the costs and expenses of and incidental to such sale (including the costs of storage and insurance pending such sale) PROVIDED ALWAYS that if the proceeds of sale are insufficient to meet such costs and expenses the Licensee shall forthwith pay or reimburse to the Estate Owner on demand the amount of any such shortfall

 

~ which is nothing less than a blatant attempt to circumvent the obligations and restrictions/limitations of a bailee under Section 12 of the 1977 Torts (Interference with Goods) Act by deceiving a licensee signatory to the Agreement into believing that such a passage of pseudo-legalistic twaddle prevails over statute.

Edited September 29, 2016 by Tony Dunkley

[Dave_P]

It's good to see this thread being dragged back to the pertinent point. Surely, it's easy to see that the actions of an individual, whether right or wrong have little impact on us personally in this case? Whereas the actions of an organisation which wields considerable power over all of us is highly important.

 

I'm very interested to see how this plays out. It seems to me that CRT could have taken possession of the vessel and kept it within their waters. Alternatively they could have removed the vessel immediately outside their waters and refused it re-entry. To tow it off through the sea to another part of the country looks a heck of a lot like stealing to me. I'll say again, it could be very interesting to see how this goes.

[Tony Dunkley]

E-mail sent to C&RT on Monday 26 September at 1813hrs :-

 

F.A.O. Head of Legal - Jackie Lewis and CEO - Richard Parry.

I am authorized and appointed by the owner, Mr Alan Roberts, to act on his behalf in any and all matters concerning the above named vessel.

Following removal by the Trust from it's waters in Canning Dock, Liverpool, and into the River Mersey on Tuesday last 20 September 2016, "Planet" was taken, on the instructions of the Trust, via the Irish Sea, Bristol Channel and River Severn, to other waters under it's ownership and control in Sharpness Dock off the River Severn on Saturday 24 September 2016.

Prior to the forcible seizure and removal of the vessel from Canning Dock in Liverpool the Trust had stated, in writing, it's intention to, sell the vessel as a means of recovering outstanding berthing fees, to which would be added the cost of removing the vessel from it's waters.

Given that removal and debt recovery were the stated objectives, the Trust, as owners and Harbour Authority of Canning Dock had two different courses of action available to achieve those objectives. The first option would have been to remove the vessel from Canning Dock to the nearest safe berth elsewhere on the River Mersey or into another Dock under other ownership, and then to have obtained a Debt Judgment, and a Writ of Execution if necessary, to recover any and all monies owed. The second option would have been to move the vessel from it's existing berth to another suitable and secure berth within Canning Dock, thus remaining able to exercise a lawful lien over it in respect of monies owed before and until subsequent and final removal from the Dock after all debts were cleared. It appears, however, that the Trust has taken upon itself to pursue both of these either/or and mutually exclusive options without paying any heed whatsoever to the differing preliminaries and procedures the law demands in respect of either one of them.

With regard to the present unlawful possession and impoundment in Sharpness Dock and the stated intention to sell or otherwise dispose of Mr Robert's ship, the Trust is hereby served notice as follows :-

1) The owner [Alan Roberts] of the ex-light vessel "Planet" believes that in lacking both the benefit of a Court Order or Writ of Execution and the presence of an officer of the Court, the forcible boarding and seizure of his ship by employees and contractors of the Canal and River Trust was wholly unlawful, as is the continuing possession and impoundment of the vessel in Sharpness Dock.

It therefore follows that the Trust, as voluntary bailee, whether lawful or not, is bound by clause 7(1) in Part II of Schedule I of the Torts (Interference with Goods Act) 1977, and obliged to refrain from either giving Notice under S.12(3) of the same Act, or selling or otherwise disposing of the vessel until the dispute as to any sums claimed by the Trust to be owing in respect of the vessel is resolved.

2) The Trust has no lawful authority or entitlement to retain possession of the above named vessel or to deny the owner or his representatives access to it. The owner therefore requires that the Trust, at it's own expense and risk, returns the vessel to [a location to be advised] on the River Mersey forthwith.

Signed A.K.Dunkley (Owner's Representative)

C&RT's reply on the following morning Tuesday 27 Sept 2016 at 1000hrs.

Thank you for your email Mr Dunkley.

 

We have instructed Shoosmiths to act on our behalf in this matter, and they will be responding to you directly on the matters raised in your letter.

 

Kind Regards

Thami Nomvete

Solicitor

Legal

 

 

Up until this time the only lawyers involved in the C&RT dispute with the vessel's owner, other than those masquerading as such in C&RT's offices in Milton Keynes, had been Wilkin Chapman of Grimsby who for some reason best known themselves and C&RT, issued the Claim for unpaid berthing fees in the Northampton County Court.

Edited September 29, 2016 by Tony Dunkley

[Mike Todd]

Reading back through the thread, it seems that the soundness of the vessel is not in dispute. This is reinforced up by CRT having her towed out to sea. This leaves the other option that the safety issue was something to do with how the business on the vessel was operating. This is where the HSE/council/MCA would come in. Any of these would take action following a report of unsafe practice, no incident would be necessary. CRT could have made that report. In any case, how on earth would an unsafe business (even if there were one) be best addressed by towing the vessel out to sea?

If that was for me, then thanks. Your opinion is much valued at this end!

I was not commenting on the seaworthiness or otherwise - but rather the suggestion that HSE not CaRT is responsible for ensuring safety of vessels on its waters. Note that in most circumstances a licence requires both insurance and BSS to be current - the former probably also requires the latter.

Edited September 29, 2016 by Mike Todd

[mayalld]

 

How about..... instead of starting an enjoyable but pointless fight with Tony Dunkley you put your not inconsiderable learning and intelligence into an examination of the extremely valid points that Nigel Moore has made?

 

Or do you simply believe the maxim that if CRT did it, it must be right?

 

As time permits, I will certainly engage with Nigel's points. I may not agree with him on a couple of key points as to what the law says, but I rather enjoy debating the law with him!

 

However, I'm NOT trying to start a pointless fight with Tony. Tony has made an assertion as to the legality or otherwise of the actions of CRT. On the face of it, I can't see that he is right.

 

HOWEVER, I do recognise that whilst many discussions with Tony end up close to a fight, he has researched his position.

 

I don't think that he is right, but neither do I exclude the possibility, and as much of the rights and wrongs of this case rests upon this point, it seems appropriate to explore it.

 

Do I think that if CRT did it, it must be right? No, but neither do I believe the contrary.

 

If Tony can explain why CRTs actions became unlawful once Planet passed the dock gates, then that will inform my view.

[Mike Todd]

 

It was. Mike Todd obviously hit his 'Post' button seconds before I did!

and there was me thinking that I had received the ultimate accolade! (Mind you I did work out the above sequence for myself)

[Mike Todd]

The simple truth here is that CaRT were entitled to eject the boat from their property after due notice, and were entitled in the alternative, to retain possession of the boat within the dock until the sums owing were paid.

 

They have done neither; they have removed the boat from one of their premises up the coast to yet another of their premises [as Tony indicates, hardly qualifying as removing a trespassing vessel from their premises].

 

In doing so, their stated position is that they do NOT rely on holding a lien on the boat [although that would have been the sensible thing to do]; NOR are they taking an action to remove a trespasser [which could have been an equally sensible thing to do if they felt so strongly against the owner]. Rather, they claim to be acting according to the terms of the berthing contract.

 

Under those terms, CaRT claim they were entitled to do whatever they wished with the vessel, without any notice to the owner whatsoever, and say that they have in fact bent over backwards in giving him notice twice [as per the two letters Tony has copied earlier].

 

The contractual terms they cite as allowing them to do as they have, include clause 8 whereby any breach of the agreement entitles CaRT “at the licensee’s risk and expense but without prior notice to the licensee and without being answerable for any loss or damage of whatsoever nature occasioned thereby: - [8.5] to take such other action of whatsoever nature in relation to the Vessel as the Harbour Master may in his sole discretion determine.” [my bold]

 

So there is the legal basis for their action according to them.

 

It would seem on the face of it that some challenge under the Unfair Contracts Act 1977 would certainly succeed. For one example: seeking to remove all liability for loss or damage for a boat in their care would violate s.2 of the Act.: -

 

s.2 (2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.

 

s.2 (3) Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.

 

Other potentially pertinent sections:

 

13.(1) To the extent that this Part of this Act prevents the exclusion or restriction of any liability it also prevents—

 

( a ) making the liability or its enforcement subject to restrictive or onerous conditions;

 

( b ) excluding or restricting any right or remedy in respect of the liability, or subjecting a person to any prejudice in consequence of his pursuing any such right or remedy;

 

 

29.(1) Nothing in this Act removes or restricts the effect of, or prevents reliance upon, any contractual provision which—

 

( a ) is authorised or required by the express terms or necessary implication of an enactment;

 

 

What they have done is remove the vessel at considerable cost to themselves, to a distant dock in their control [the vessel is still “trespassing” on their property], while forbidding access to the owner, holding the same until payment of the sums owed, plus whatever they spend playing with the boat, in an exercise utterly pointless other than to increase the costs liability to the owner, while still being responsible for the vessel. That is not only beyond logic in terms of what is most beneficial to CaRT, it is overly punitive in terms of punishing the owner.

 

I surely cannot be trespassing where it now is as that would require it to be there without permission. Clearly, CaRT's action implicitly gives it that permission whilst it remains under their control. Also it has been removed from one premises to another, leaving CaRT's premises in the process (at least I don't think that they own the Bristol Channel)

[Geo]

I was not commenting on the seaworthiness or otherwise - but rather the suggestion that HSE not CaRT is responsible for ensuring safety of vessels on its waters. Note that in most circumstances a licence requires both insurance and BSS to be current - the former probably also requires the latter.

 

Something in my mind is saying that this vessel is a Registered vessel, it is also used for commercial purposes, and has members of the public aboard, was sitting in what was or is, don't know, a marine dock. Surely the inspection regime is down to the MCA?

Edited September 29, 2016 by Geo

[mayalld]

 

That's probably why he employs someone to run it for him.

 

Does he pay the wages of that person, or does he forget that too?

[Tony Dunkley]

 

Does he pay the wages of that person, or does he forget that too?

 

Irrelevant.

[Sir Nibble]

As relevant as raising his health problems and confusion in the first place.

[mayalld]

 

Irrelevant.

 

How so?

 

He owns the vessel (although he occasionally claims that he doesn't), and he appoints somebody to run a business there for him. As part of running that business, he clearly DOES pay those creditors who could finish his business at a stroke by simply not supplying him any more.

 

So one suspects that he does pay the wages, but has foolishly imagined that not paying CRT was consequence free, because they are hardly going to tow his boat away are they?

 

.....

[Tony Dunkley]

 

How so?

 

Because neither my concerns, nor this topic, are about how the owner of the vessel has conducted himself and his business.

My view is that an awful lot of what he's done is pretty much indefensible, and I've told him so, but my attention is, and always has been, focused entirely on the illegal and complete bog-up that C&RT have made of handling a simple dispute over outstanding berthing fees.

Edited September 29, 2016 by Tony Dunkley

[Tony Dunkley]

As relevant as raising his health problems and confusion in the first place.

 

It's somewhat misleading to say that I 'raised' his 'health problems'. My mention of them was merely a response to someone asking " does this man actually do anything ?", and I said something along the lines of ; yes, he suffers from Polymyalgia Rheumatica and the debilitating side-effects of the drugs used to treat it.

[gaggle]

 

No I am not confusing the two, the FOI has the exemption for commercially sensitive information and the rents paid by individual renters would be sensitive as not infrequently rents are different depending on a variety of things at the time of the setting of the rent.

 

As for the DPA I make no mention of commercially sensitive, think you need to read it again and work out when data becomes personal.

I am not sure that the bars and shops rent the premises from CRT , maybe that they pay a property company that has interests on the estate.

[NigelMoore]

I surely cannot be trespassing where it now is as that would require it to be there without permission. Clearly, CaRT's action implicitly gives it that permission whilst it remains under their control. Also it has been removed from one premises to another, leaving CaRT's premises in the process (at least I don't think that they own the Bristol Channel)

 

 

Well that’s where this gets all a bit silly does it not? If they do not want it on their property, it is trespassing; if they voluntarily bring it “back” onto their property [albeit removed from the initial location], then yes, I would agree that it cannot be trespassing – which makes nonsense of any claim to have acted in response to a trespass. If that claim was valid in the first place, then it is still trespassing, but of course the claim was invalid.

 

Fact is, that they have tried on a variety of different claims simultaneously; the only one that makes sense is their reliance on the T&C’s of their contract with the owner. As of now, with the relocation of the vessel a fait accompli, that is the sole authority on which they rely.

 

They are left with the same situation as before: a vessel they do not want to have occupying a berth on their property, doing so; and far more money owing to them than the relatively minor amount before they began the current operation. Regardless of legalities, it is just plain daft, and lousy business to boot.

 

 

edit to add: There is a point to note here, in your observation that they traversed waters outwith their ownership or jurisdiction, in that any right to hold possession of another’s goods while on your property, ceases once it has left your property. I rather think this is what Tony has in mind with some of his comments.

 

Edited September 29, 2016 by NigelMoore

[mayalld]

The simple truth here is that CaRT were entitled to eject the boat from their property after due notice, and were entitled in the alternative, to retain possession of the boat within the dock until the sums owing were paid.

 

They have done neither; they have removed the boat from one of their premises up the coast to yet another of their premises [as Tony indicates, hardly qualifying as removing a trespassing vessel from their premises].

 

In doing so, their stated position is that they do NOT rely on holding a lien on the boat [although that would have been the sensible thing to do]; NOR are they taking an action to remove a trespasser [which could have been an equally sensible thing to do if they felt so strongly against the owner]. Rather, they claim to be acting according to the terms of the berthing contract.

 

Under those terms, CaRT claim they were entitled to do whatever they wished with the vessel, without any notice to the owner whatsoever, and say that they have in fact bent over backwards in giving him notice twice [as per the two letters Tony has copied earlier].

 

The contractual terms they cite as allowing them to do as they have, include clause 8 whereby any breach of the agreement entitles CaRT “at the licensee’s risk and expense but without prior notice to the licensee and without being answerable for any loss or damage of whatsoever nature occasioned thereby: - [8.5] to take such other action of whatsoever nature in relation to the Vessel as the Harbour Master may in his sole discretion determine.” [my bold]

 

So there is the legal basis for their action according to them.

 

It would seem on the face of it that some challenge under the Unfair Contracts Act 1977 would certainly succeed. For one example: seeking to remove all liability for loss or damage for a boat in their care would violate s.2 of the Act.: -

 

s.2 (2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.

 

s.2 (3) Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.

 

Other potentially pertinent sections:

 

13.(1) To the extent that this Part of this Act prevents the exclusion or restriction of any liability it also prevents—

 

( a ) making the liability or its enforcement subject to restrictive or onerous conditions;

 

( b ) excluding or restricting any right or remedy in respect of the liability, or subjecting a person to any prejudice in consequence of his pursuing any such right or remedy;

 

 

29.(1) Nothing in this Act removes or restricts the effect of, or prevents reliance upon, any contractual provision which—

 

( a ) is authorised or required by the express terms or necessary implication of an enactment;

 

 

What they have done is remove the vessel at considerable cost to themselves, to a distant dock in their control [the vessel is still “trespassing” on their property], while forbidding access to the owner, holding the same until payment of the sums owed, plus whatever they spend playing with the boat, in an exercise utterly pointless other than to increase the costs liability to the owner, while still being responsible for the vessel. That is not only beyond logic in terms of what is most beneficial to CaRT, it is overly punitive in terms of punishing the owner.

 

 

Nigel,

 

that looks like a fair summary, which boils down to "All the various questions of liens, and Statute of Marlborough etc are moot points unless the main plank of the CRT argument fails"

 

CRT have a contract with the owner, that allows them to do certain things. It is suggested that the terms of that contract are sufficiently onerous as to fall foul of the Unfair Terms in Contracts Act, an argument that may have some merit.

 

What that means as of now is that CRT have acted in a way that is consistent with their rights in a contract. They have not used any statutory powers. The fact that it has been suggested that the terms of the contract may be unenforceable doesn't make tem unenforceable. Basically, until a court rules that the contract is deficient it must be presumed to be valid (rather that assuming it to be defective until approved by a court).

 

The upshot is that CRT's actions, however illogical, mean spirited and vindictive people may think them are CURRENTLY lawful.

 

If a court subsequently decides that parts of the contract are unenforceable, CRT will have to undo anything they have done that relies upon those bits of the contract.

 

Because neither my concerns, nor this topic, are about how the owner of the vessel has conducted himself and his business.

My view is that an awful lot of what he's done is pretty much indefensible, and I've told him so, but my attention is, and always has been, focused entirely on the illegal and complete bog-up that C&RT have made of handling a simple dispute over outstanding berthing fees.

 

The man signed a contract with CRT. That contract gave CRT power to do various things if he didn't pay. CRT have done those things.

 

Nothing illegal there. If you want to describe their actions as Harsh, or petulant, then I might even agree with you, but they are NOT illegal.

[MtB]

 

Nigel,

 

that looks like a fair summary, which boils down to "All the various questions of liens, and Statute of Marlborough etc are moot points unless the main plank of the CRT argument fails"

 

CRT have a contract with the owner, that allows them to do certain things. It is suggested that the terms of that contract are sufficiently onerous as to fall foul of the Unfair Terms in Contracts Act, an argument that may have some merit.

 

What that means as of now is that CRT have acted in a way that is consistent with their rights in a contract. They have not used any statutory powers. The fact that it has been suggested that the terms of the contract may be unenforceable doesn't make tem unenforceable. Basically, until a court rules that the contract is deficient it must be presumed to be valid (rather that assuming it to be defective until approved by a court).

 

The upshot is that CRT's actions, however illogical, mean spirited and vindictive people may think them are CURRENTLY lawful.

 

If a court subsequently decides that parts of the contract are unenforceable, CRT will have to undo anything they have done that relies upon those bits of the contract.

 

 

As I understand it, if a court decides parts of a contract are unfair, the whole contract is set aside.

[mayalld]

 

 

As I understand it, if a court decides parts of a contract are unfair, the whole contract is set aside.

 

I believe it is simply the terms that are unfair that are set aside.

[NigelMoore]

 

The fact that it has been suggested that the terms of the contract may be unenforceable doesn't make tem unenforceable. Basically, until a court rules that the contract is deficient it must be presumed to be valid (rather that assuming it to be defective until approved by a court).

 

Is that the case - that a presumption of validity exists until any challenge is ruled on? It is not something I have heard of, but I would be interested to learn more.

 

Perhaps you can help with whether any authority exists for the proposition that no contract can void statutory rights? One hears of this often enough, and it is acknowledged in many contracts/T&C’s, but I have not gone looking for case law on the topic.

 

If the proposition does hold true, then Marlborough and other relevant statutes are hardly moot are they? At the very least, they would be powerful evidence that a contract purporting to over-ride them should be declared illegitimate/unfair.

 

[Wanderer Vagabond]

 

He had an agreement limited to a maximum of 12 months in 2014. The copy produced by CaRT clearly shows that it was backdated to commence 1/1/2014. The end date (which appears to have been altered more than once) is 31/12/2014.

 

In January 2015, Mr Roberts sent CaRT a cheque for the period 1/1/2015 - 31/12/2015 (I have seen a photostat). This was not cashed with CaRT claiming that they had not received it.

 

CaRT have been unable to show that they have a current agree with Mr Roberts and thus rely on the 2014 contract to remove Planet.

 

***** Edited to add - this is a side issue. The real issue is does the agreements 8.1 override other legislation.

This actually raises more questions than it answers. To begin with for an agreement to be made both parties have a copy of it (so that they know if they have breached any part of it). Which agreement are you claiming that has been altered, the copy held by CRT? or the copy held by Mr Roberts? or does Mr Roberts actually have a copy? Moving onto the issue of the cheque:- this sounds curious to me, what photostat copy have you seen? Is it the copy sent out by banks from their microfiche when you request a copy of a cashed cheque? or is it a photocopy taken by Mr Roberts before he allegedly sent it to CRT. If it is the former then CRT have serious questions to answer as to why they are claiming non-payment when the cheque has clearly been cashed. If it is the latter it is evidence of nothing at all. I could sent to you a photocopy of a cheque 'sent' by me to Mr Dunkley for £10,000 as 'proof' he owes me money (he doesn't and I haven't ). Until a cheque has passed through the banking system it is merely a piece of paper, much the same as any other piece of paper. If it was photocopied by Mr Roberts it also begs the question why? I have never photocopied any of the cheques that I have sent to anyone. If it gets lost in the post or somehow mislaid I check with the bank that it hasn't been cashed then cancel it and send another one.

Finally the alleged absence of any current agreement between Mr Roberts and CRT merely reiterates the fact that he is trespassing whilst in the dock.

 

 

Think you missed the point it limits the revenge element, things must be reasonable and fair in the eyes of the Court. It does not say dues do not have to be paid.

The 'revenge' element had nothing to do with Mr Dunkleys post, he was claiming that the only person/organisation that had broken the law was CRT when clearly, assuming that the debt judgement against him has been accurately reported, Mr Roberts has broken Civil law by breaching his contract.

 

 

I believe it is simply the terms that are unfair that are set aside.

My belief if that if you sign a contract containing what a Court decide are defective terms then it become necessary to delete those terms from the contract and re-sign one (or possibly amend and re-sign the original contract). I don't think that you can just set aside terms within a signed contract without re-signing one, effectively drawing up a new contract.

[erivers]

In the context of this debate I found this paper interesting and informative:

 

http://www.39essex.com/content/wp-content/uploads/2015/07/Exclusion-Limitation-Clauses-in-Business-Contracts-Presentation-Paper-JM-Bellamy.pdf

 

Paragraph 21 in particular is interesting as it suggests that the burden of proof that a contract limitation or exclusion clause is "fair and reasonable" will always lie with the party seeking to rely on it. In the absence of such proof the term will inevitably be found unfair.

Edited September 29, 2016 by erivers