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section 8 canning dock ?


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Tony,

 

May I strongly suggest that you do not use the term "criminal act" but change it to "unlawful act". A lawyers mind looks at what you have written and debates is anything that we have done a "criminal act" under the meaning of any part of the criminal law, answer no and from that point tells you to go away. However I would suggest the use of the term "unlawful act" covers not only the criminal law but also Civil Law, like the Torts Act etc, now the lawyer has to ask the question is anything we have done conceivably a breach close to being a breach of any law and hence do I really need to engage with this person. Could get you and better answer.

 

Also it is less emotive

 

ETA I might even repeat your email opening saying I believe I incorrectly used the term "criminal act" rather than the term "unlawful act"

 

 

Forcible entry and taking possession of premises by other than a duly authorized Enforcement Agent armed with the correct form of Writ sealed by the Court is a criminal act/offence, . . . . why describe it as anything other than precisely what it is ?

 

In what C&RT did when "Planet" was forcibly seized on 19 September there is some overlap of civil and criminal law; put in the simplest way, in committing a criminal act, they inflicted a civil wrong.

Edited by Tony Dunkley
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Forcible entry into premises by other than a duly authorized Enforcement Agent armed with the correct form of Writ sealed by the Court is a criminal act/offence, . . . . why describe it as anything other than precisely what it is ?

 

In what C&RT did when "Planet" was forcibly seized on 19 September there is some overlap of civil and criminal law; put in the simplest way, in committing a criminal act, they inflicted a civil wrong.

 

OK Tony have it your own way but changing the term opens the field.

 

Oh BTW there are certain circumstances I understand where a Bailiff does not need a Court Order only the authority of the Creditor, depends I understand on the various things

Edited by Geo
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OK Tony have it your own way but changing the term opens the field.

 

 

I agree, but why 'open the field' and create an opening for introducing yet more ambiguity and obfuscation over and above that which C&RT's lawyers will be shoveling in ?

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I agree, but why 'open the field' and create an opening for introducing yet more ambiguity and obfuscation over and above that which C&RT's lawyers will be shoveling in ?

 

Because you don't close your own route down. My Nanna would say don't cut your nose of to spite your face. I know they upset you but remember they won't be bullied, they have more resources and money than you, more time, so you have to plough a moderate path and that way the Court if and when you get there will be more sympathetic. Be a bull in a china shop and the court will not be happy.

  • Greenie 1
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Whether or not this ends up before a Judge is something that C&RT can influence to their benefit, but the final decision rests with the vessel's owner.

If they return "Planet" to Liverpool and make appropriate reparations, then it may not do so, if they don't do both of those things, then it most certainly will.

This will have to end up before a Judge then since, despite your bluff and bluster,there is no prospect whatsoever of the boat being returned to Canning Dock or reparations being voluntarily paid. Even before a Court you are unlikely to get the boat returned to Canning Dock the best that you can hope for is that a Court demand the boat be returned to another dock in Liverpool. With Mr Roberts record of failure to pay his berthing fees he may find it problematic to find another dock in the area willing to berth it.

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Because you don't close your own route down. My Nanna would say don't cut your nose of to spite your face. I know they upset you but remember they won't be bullied, they have more resources and money than you, more time, so you have to plough a moderate path and that way the Court if and when you get there will be more sympathetic. Be a bull in a china shop and the court will not be happy.

 

I fail to see how accuracy in description equates with behaving like a 'bull in a china shop'. What purpose could possibly be served by mitigating the wrongs that brought about the need for an Application, in the very process of seeking remedy by way of an Order ?

 

The process of obtaining a Court Order is not an exercise in diplomacy wrapped up in a quest for sympathy.

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This will have to end up before a Judge then since, despite your bluff and bluster,there is no prospect whatsoever of the boat being returned to Canning Dock or reparations being voluntarily paid. Even before a Court you are unlikely to get the boat returned to Canning Dock the best that you can hope for is that a Court demand the boat be returned to another dock in Liverpool. With Mr Roberts record of failure to pay his berthing fees he may find it problematic to find another dock in the area willing to berth it.

And thereby lies the nub of the problem. Not much use having a ship and nowhere to put it, especially if the only use of it is as a business - any old mooring out of the way is no use, it must be somewhere the punters can get to it easily. Of course, this way, the owner has got a lossmaking business taken off his hands as well as having it berthed for free, possibly sold for him without commission charges, and the balance of money returned to him after his debts are paid. Could be a win...
  • Greenie 3
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Forcible entry and taking possession of premises by other than a duly authorized Enforcement Agent armed with the correct form of Writ sealed by the Court is a criminal act/offence, . . . . why describe it as anything other than precisely what it is ?

 

In what C&RT did when "Planet" was forcibly seized on 19 September there is some overlap of civil and criminal law; put in the simplest way, in committing a criminal act, they inflicted a civil wrong.

 

In order to make the claims that you do about criminal wrongdoing, you have adopted your usual tactic of ignoring any facts that get in the way of your conclusion.

 

The owner signed a contract with CRT that gave them PERMISSION to do what they have done.

 

Now, I have no doubt whatsoever that he now wishes to withdraw that permission, but it isn't open to him to unilaterally change the terms of the contract when it suits him.

 

Armed with that contractual agreement from the owner as to what they may do, anything that you can throw in regarding interference with goods etc just doesn't come into play.

 

Now, you can of course make an argument that the terms of the contract are unfair and onerous, and it may surprise you to learn that I would probably agree with you here (even though this is a business contract, not a consumer contact which carries a lesser level of protection).

 

You could even argue, probably successfully, that even if the terms of the contract are fair, the costs incurred in the actions are so manifestly in excess of what they needed to incur that they were incurred with a view to bumping up the bill, and that as such the charges over and above what they reasonably needed to incur are actually a penalty charge.

 

However, what you appear to have done here is decided that as YOU think the contract is unfair, it IS unfair, and that as such you can interpret all actions taken on the basis that the contract is void.

 

CRT are entitled to rely on that contract, unless and until the terms are ruled unfair.

  • Greenie 4
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Forcible entry and taking possession of premises by other than a duly authorized Enforcement Agent armed with the correct form of Writ sealed by the Court is a criminal act/offence, . . . . why describe it as anything other than precisely what it is ?

 

In what C&RT did when "Planet" was forcibly seized on 19 September there is some overlap of civil and criminal law; put in the simplest way, in committing a criminal act, they inflicted a civil wrong.

 

And again, this is only your opinion, as you are not a Judge or legally trained.

I would suggest that Geo's advice should be followed.

 

 

Because you don't close your own route down. My Nanna would say don't cut your nose of to spite your face. I know they upset you but remember they won't be bullied, they have more resources and money than you, more time, so you have to plough a moderate path and that way the Court if and when you get there will be more sympathetic. Be a bull in a china shop and the court will not be happy.

 

Well said!

 

Oh and remember the solicitors and staff are only doing what they are told by a manager it is not personal

 

And taking things personally also clouds the judgement.

 

This will have to end up before a Judge then since, despite your bluff and bluster,there is no prospect whatsoever of the boat being returned to Canning Dock or reparations being voluntarily paid. Even before a Court you are unlikely to get the boat returned to Canning Dock the best that you can hope for is that a Court demand the boat be returned to another dock in Liverpool. With Mr Roberts record of failure to pay his berthing fees he may find it problematic to find another dock in the area willing to berth it.

 

Quite.

  • Greenie 1
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I have not seen the full berthing contract and thus can't have a definite opinion but from the little I have seen there could be an unfair aspect to it. That to means gentle gentle put your case quietly and then take it to court and CRT will have to satisfy a Judge that it is not unfair. Part of the claimants evidence could well be Malborough, the Torts Act and the inequality of the two parties, the fact probably that there was no negotiation it was take it or leave it.

 

But to get there the court's rule have to be followed.

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Armed with that contractual agreement from the owner as to what they may do, anything that you can throw in regarding interference with goods etc just doesn't come into play.

 

That is exactly what Shoosmiths have said.

 

I have discovered interesting material from one law firm - regarding the possibility of signing away statutory rights - even though it is only in the context of employment law, and more importantly, specifically in regard to a statutorily enabled “Settlement Agreement”:

 

https://www.slatergordon.co.uk/media/77890/settlement-agreements.pdf

 

The article identifies and distinguishes between 3 forms of 'rights' - contractual rights, common law rights, and statutory rights.

 

"Employees can waive (i.e. sign away) many of their contractual rights or common law rights merely by setting this out in a document and signing it. This is why employees have to be careful that they do not inadvertently prejudice their position by signing documents without taking legal advice, for example when an employer proposes to change terms and conditions of employment."

 

However those classes of rights have different standing from the third:

 

"In order to waive their statutory rights, employees must have agreed either:

 

* To sign a valid settlement agreement with the assistance of a trade union adviser or lawyer, or

 

* To sign an ACAS settlement (called a COT3’), usually after legal proceedings have been commenced.

 

The law sets out very specific requirements which must be met if a settlement agreement is to waive an employee’s statutory rights validly and effectively. These are:

 

* It must be in writing

 

* It must relate to a particular complaint(s) or proceedings

 

* It must be signed by the employee

 

* The employee must have received independent legal advice;

 

* The legal adviser must be identified

 

* The legal adviser must be insured; and

 

* The agreement must record that the requirements regulating the settlement agreement have been satisfied.

 

If the agreement does not comply with those statutory minimum requirements, it will not settle your statutory rights." [my bold]

 

What I glean from all that is that statutory rights cannot ordinarily be signed away, even though in certain circumstances - themselves prescribed by Statute - it may be done [but if so, must be done according to the strict conditions that Statute lays down in order for the waiving to be valid.]

 

I keep harking back to the United Dairies case, where the contractual obligations of one party to a contract were nullified by the illegality of the contract. But that may be a slightly oblique point. There, the demand for a contract was itself unlawful, beyond there being objection to the specific terms therein.

 

I do need to research this more however. I have yet to find pertinent case law.

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Surely there is always an inequality between two parties to any contract, and rarely any negotiation. I remember, many years ago, being told contract law was the last remnant of feudal law, and that all the power rests with the contractor and very little with the contractee, who can either accept what is offered or go elsewhere.

This is certainly the case in employment contracts, where if your employer offers you a variation in terms and conditions (such as hours worked, or pay offered) you can either accept it or go look for another job. You don't have the option of refusing the variation and continuing on the original terms.

As said, your only alternative is to go to law which is generally (and deliberately, in my view) priced out of most people's ability to afford.

In this case, the shipowner really needs to consider what future the ship has if he regains control of it and if it's in his best interest to do so. Just using the situation to bash CRT may not be to his best advantage.

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Armed with that contractual agreement from the owner as to what they may do, anything that you can throw in regarding interference with goods etc just doesn't come into play. ................. ................ ...................

 

 

However, what you appear to have done here is decided that as YOU think the contract is unfair, it IS unfair, and that as such you can interpret all actions taken on the basis that the contract is void.

 

 

It appears that you've picked up the notion that clauses in a business contract can prevail over statute, on the grounds that the offeror wishes that to be so, from the last paragraph in the Shoosmiths e-mail I posted in #378.

 

As for what you've assumed about my views on the fairness, or otherwise, of the C&RT Berthing Contract, can you explain just where you got that from, . . . other than acknowledging that "C&RT have laid themselves open to challenge under the Unfair Contracts Act 1977" in post #378, I haven't, as yet, expressed an opinion on the matter anywhere in this thread.

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Surely there is always an inequality between two parties to any contract, and rarely any negotiation. I remember, many years ago, being told contract law was the last remnant of feudal law, and that all the power rests with the contractor and very little with the contractee, who can either accept what is offered or go elsewhere.

This is certainly the case in employment contracts, where if your employer offers you a variation in terms and conditions (such as hours worked, or pay offered) you can either accept it or go look for another job. You don't have the option of refusing the variation and continuing on the original terms.

As said, your only alternative is to go to law which is generally (and deliberately, in my view) priced out of most people's ability to afford.

In this case, the shipowner really needs to consider what future the ship has if he regains control of it and if it's in his best interest to do so. Just using the situation to bash CRT may not be to his best advantage.

In the realms of employment this is rarely a good idea unless one has the intention of becoming self employed. To get one over on an employer who has treated one badly by taking him either to an Industrial Tribunal (recent legislation has made this a whole lot more difficult/expensive) or to Civil Court certainly makes one feel good however, assuming that one has a good case and wins at either tribunal or Court it is something of a Pyrrhic victory since one then has to find further employment. You can try to cut out the period of employment with your duff employer from your CV but an astute interviewer will pick up on that one way or another. You can include it in your CV and try to explain to your potential new employer that your actions were fully justified but from what I've seen of interviews, someone who has taken a previous employer to law will be dropped from the short list list like a hot brick.

 

The relevance to the current thread is that even disregarding the non-payment of fees, to try to nail CRT may give some 'success' but then what is he going to do with the boat. No commercial dock will take in someone who has created this reputation (there are plenty of free sea anchorages available if that helpsrolleyes.gif )

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^^^^^ Well it makes a change from the usual car analogy ^^^^^

As far as I can see from the many documents provided, Mr Roberts has not had a berthing agreement with CaRT for over 18 months. Why did CaRT not take action a year ago to remedy that?

Also, bearing in mind that they have allowed free berthing of his ship for almost 18 months why did they not use trespass as a means of removing the vessel?

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^^^^^ Well it makes a change from the usual car analogy ^^^^^

 

As far as I can see from the many documents provided, Mr Roberts has not had a berthing agreement with CaRT for over 18 months. Why did CaRT not take action a year ago to remedy that?

Sometimes I even feel a bit sorry for CRT employees. They get slammed if they take action, and now they get criticised for giving someone time to get his finances sorted out and to comply with his responsibilities. Either way they can't get it right...

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^^^^^ Well it makes a change from the usual car analogy ^^^^^

 

As far as I can see from the many documents provided, Mr Roberts has not had a berthing agreement with CaRT for over 18 months. Why did CaRT not take action a year ago to remedy that?

 

Also, bearing in mind that they have allowed free berthing of his ship for almost 18 months why did they not use trespass as a means of removing the vessel?

 

 

I think we will all have to wait for the outcome of this but I do think CRT will prevail in the end

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Sometimes I even feel a bit sorry for CRT employees. They get slammed if they take action, and now they get criticised for giving someone time to get his finances sorted out and to comply with his responsibilities. Either way they can't get it right...

Damned if they do and damned if they don't frusty.gif

  • Greenie 1
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Sometimes I even feel a bit sorry for CRT employees. They get slammed if they take action, and now they get criticised for giving someone time to get his finances sorted out and to comply with his responsibilities. Either way they can't get it right...

Are you seriously suggesting that CaRT gave the ship a free berth for more than a year so that Alan Roberts could get his finances sorted out?

 

If an agreement can not be produced for 2015 and/or 2016 it would appear that Alan Roberts had no (contractual) responsibilities anyway.

 

Edited by Allan(nb Albert)
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Are you seriously suggesting that CaRT gave the ship a free berth for more than a year so that Alan Roberts could get his finances sorted out?

 

If an agreement can not be produced for 2015 and/or 2016 it would appear that Alan Roberts had no (contractual) responsibilities anyway.

 

No, I'm suggesting that you'll mither about CRT if they slung him out as soon as the first week that his berthing fees weren't paid, and now you're mithering about them actually (probably) listening to an endless trail of excuses as to why they aren't being paid / the cheque is in the post /etc before finally losing patience. They were probably hoping he'd either pay up or shove off as I'm pretty sure they didn't want any of the hassle they've ended up with.

I'm not sure I could take my tub over to Canning dock, tie it up and say to CRT "Well, I haven't got an agreement so I'm staying here for a couple of years. Now leave me alone", which is what your second sentence seems to be implying. That, I'm afraid, is just silly.

  • Greenie 1
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No, I'm suggesting that you'll mither about CRT if they slung him out as soon as the first week that his berthing fees weren't paid, and now you're mithering about them actually (probably) listening to an endless trail of excuses as to why they aren't being paid / the cheque is in the post /etc before finally losing patience. They were probably hoping he'd either pay up or shove off as I'm pretty sure they didn't want any of the hassle they've ended up with.

I'm not sure I could take my tub over to Canning dock, tie it up and say to CRT "Well, I haven't got an agreement so I'm staying here for a couple of years. Now leave me alone", which is what your second sentence seems to be implying. That, I'm afraid, is just silly.

I really think you need to reread what you posted Arthur and perhaps reread the thread from the top.

 

There is absolutely no suggestion that 'the cheque is in the post'. CaRT are not listening to an endless endless trail of excuses as to why they aren't being paid because they have not chased payment for well over a year.

 

Mr Roberts produced a photocopy of a cheque which he says was sent to CaRT in January 2015 in full payment for berthing fees for that year. CaRT say they have no record of receiving it. Mr Roberts, on checking his account, says that the cheque was not cashed. There appears to be no attempt to chase this payment for well over a year.

 

However, the point I am making is that there is no written agreement in place for 2015 and 2016 and, as such, they should have treated the matter as trespass rather than breach of contract.

 

 

Edited by Allan(nb Albert)
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