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A somewhat emotive over-reaction Arthur, however resonant with general opinion and informed by laudable concern for the future of our waterways?

 

My own criticisms generally, are based on CaRT’s failure to apply timely and appropriate sanctions when necessary. That failure, whether as a matter of policy, negligence, or indifference, sometimes leads to a point where patience is exhausted and retaliatory measures are disproportionately applied – as much, it sometimes seems, from frustration and vindictiveness, as “pour l’encouragement les autres”.

 

It may surprise some, but I am actually in visceral agreement with CaRT’s actions in this respect; my atavistic self reacts in precisely the same way. I regard myself as the epitome of casual, laid-back generosity and tolerance, but if I get a whiff of the proverbial two-fingered salute, I can instantly get very savage indeed.

 

The problem is, that in societies that allow for the physical expression of such emotions, communal living can be somewhat uncomfortable. In this country we enjoy the benefits of many centuries of developed societal disciplines, that in most become so subliminal a component of our thinking that we can forget they are just that – inculcated precepts, that look beyond immediate feral reactions, to the better oiled machinery of civilised society. These are enshrined within legislation for the avoidance of all doubt as to appropriate conduct where contention arises.

 

We are all [or most of us] human, but for practical reasons as much as anything else, we need to be vigilant over keeping things – whether personal or business – on a calm rational law-abiding basis. It is bad enough when that breaks down in individuals, when it breaks down in national institutions it is so much worse.

 

There are things CaRT can charge for, and things they cannot; there are conditions they can impose, and others they cannot; there are penalties they can have imposed - and jolly well ought to - and penalties they are prohibited from applying.

 

As to obligations under statute – they are in the ‘happy’ [?!] situation of having all such obligations effectively neutered; they need spend nothing on maintenance and provision of services that they feel is better spent elsewhere.

 

As to the money they receive from their direct clientele as distinct from public volunteering and involuntary taxes – I remain the "one person" I know of [there must of course be others?] who has voluntarily paid the boat licence fees of boats I did not even own, for years on end – even though knowing full well that we did not need to do so - while knowing also, moreover, that those thousands per year were helping to fund the authority’s level best efforts to throw me and those boats off ‘their’ waterways.

 

That tempers my sympathies for the poor beleaguered authority somewhat.

 

Even so, I like to believe that I have retained a measured and balanced over-view of the waterways administration and what it needs. I would maintain that my criticisms are as valid as my support [where applicable].

 

CaRT will gain greater support from individuals and society in general, the more it demonstrates that their practical administration of the waterways is firm but fair, and above all as law-abiding as they wish their clientele to be.

 

If I could give you a bucketful of greenies, I would. Probably the best post I've ever read on this forum and totally nails the issue. Your position and thought-process reflects mine.

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Very.

 

My head is saying in that case maybe it is time to issue paper to CRT. I am sure CRT will ignore everything until paper lands on the doorstep.

Edited by Geo
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My head is saying in that case maybe it is time to issue paper to CRT. I am sure CRT will ignore everything until paper lands on the doorstep.

 

No, it is time to present them with the relevant information and argument, inviting them to treat with the boat owner armed with the knowledge of what would be argued in court. They must then be given time to reflect and hopefully agree to some means of settlement of the dispute outwith litigation.

 

It is known as the "pre-action protocols", which must be complied with prior to issue of any "paper". I am confident that these are being complied with; there is no immediate need to rush into court, unless CaRT propose to continue disregarding the Torts Act requirements.

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No, it is time to present them with the relevant information and argument, inviting them to treat with the boat owner armed with the knowledge of what would be argued in court. They must then be given time to reflect and hopefully agree to some means of settlement of the dispute outwith litigation.

 

It is known as the "pre-action protocols", which must be complied with prior to issue of any "paper". I am confident that these are being complied with; there is no immediate need to rush into court, unless CaRT propose to continue disregarding the Torts Act requirements.

 

That is my concern that they put the boat up for sale and sell it.

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There can be no doubt that any Court will uphold this position, and nor is this something brought about by or since this 1999 House of Lords Judgment.

 

The exact words used escape me now, it was around some 30 years ago, but I was assured most emphatically by a County Court Judge to the effect that no individual or organisation can impose conditions or terms which ultimately will prevail over statute.

 

The problem is that you choose to say that anything that an individual might do that grants rights to another to do anything is statute barred.

 

It just isn't the case!

 

Statute law contains various things that one cannot do without permission. Gaining permission, even where you make that permission a pre-condition of entering into a contract isn't having conditions that prevail over statute.

 

It is actually recognising that the statute exists and only entering into a business arrangement with people who are prepared to deal on terms that you are happy with.

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The problem is that you choose to say that anything that an individual might do that grants rights to another to do anything is statute barred.

 

It just isn't the case!

 

Statute law contains various things that one cannot do without permission. Gaining permission, even where you make that permission a pre-condition of entering into a contract isn't having conditions that prevail over statute.

 

It is actually recognising that the statute exists and only entering into a business arrangement with people who are prepared to deal on terms that you are happy with.

 

Without taking anything from your carefully worded post [thought you weren’t interested in politics either?] the crucial point is not whether some applicable statute is limiting action unless consent is obtained, but whether the relevant statute/s involved in this case is for the benefit and protection of the public, in circumstances that make consent itself impermissible.

 

Judiciaries in all countries following the English system of jurisprudence, recognise [when it suits them] that certain legislature has the objective of saving members of the public from themselves. In such cases Parliament may choose to specifically deny their ability to sign away their rights in specific circumstances [as in the car clamping and certain Consumer Rights Acts], or it may legislate general principles for the benefit of all the public, in which case it ought to go without saying that no member of the public can opt out of that protection, or allow a responsible party to contract to act beyond the limits imposed by statute.

 

This present case has to do with the actions permitted to a party holding goods on their premises, in relation to which significant sums are owed, and which they no longer wish to retain in their possession with all the obligations attendant upon that. Even though a wrong is being perpetrated against them, their remedies are very strictly constrained under various statutes both old and young, passed in the public interest.

 

The Statute of Marlborough, for example, does not say that aggrieved parties have no remedy – they do; what the clauses therein sought to establish was a curb on the excesses, and on the unilateral decision making by the landed gentry, as to what remedies were appropriate, in the sort of society that the English peoples would wish to live in.

 

The principle at stake here, basically boils down to ensuring that stronger parties are not to be able to persuade weaker parties to opt out from under such statutory protections. If a contract could accomplish this, the effective protection intended by Parliament would be circumvented.

 

Hence, where statute expressly forbids excesses of punishment; demands that issues of wrong &/or debt must be determined by independent tribunals rather than by the aggrieved/creditor; prohibits security for debts being removed out of the County; prohibits taking possession of goods as security by any other than court officials acting upon Court authority, and otherwise prohibits disposal of goods without following legislated procedures, then these are all a matter of public policy for the national benefit.

 

The weaker parties, regardless of any demonstrable wrong-doing, must not be able to give up those protections. The aggrieved/ creditors will be empowered to take appropriate action to recover their damages/debts with costs, but only through adherence to court protocols with court authority, or otherwise in conformity with all applicable public interest statutes.

 

The 1977 Act provides protections for all members of the public against abuse by those with whom they enter into contractual agreements for service and/or storage of their goods. It remains my opinion that the Act is not something, therefore, that either party to that contract can legitimately agree to dispense with.

 

Mr Roberts contracted with CaRT to pay them sums annually in advance in order to berth his vessel on their premises. He defaulted on the terms of that agreement, and thus rendered himself liable to the actions legitimised by the Torts Act. At the same time, the extent of that liability was also constrained by the same Act - and the fact that he signed an agrement not to rely upon that Act, and to allow the other party to deal with his property however they wished if he defaulted, is impermissible on my understanding of the law.

 

The fact that CaRT are, regardless, still denying the application of the relevant statute because of the agreement, is a very clear signal that they are fully aware of the enormity of what they have done and are doing.

 

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I have now had the opportunity to find a number of mooring/berthing agreements via Google, all of which contain broadly the same term as this sample:

 

If you, the Boating Member, fail to remove the boat from the Mooring on termination of this Agreement we, the zzz Motor Boat Club, shall be entitled to: Damages equivalent to the Mooring fee which would have been payable by you if the Agreement had not been terminated: or we will remove the boat from the Mooring at your risk (except for loss or damage caused by our negligence during such removal) and keep it elsewhere and charge you with all costs arising out of such removal including alternative Mooring fees.

 

I have not checked back in this long thread but my memory says that a similar term applied in this case. (Note that the agreements generally specify circumstances under which one party can terminate the contract, including on persistent non-payment of fees or the lack of any necessary licence and or insurance.

 

Clearly there are lot of mooring owners that are relying on being able to do what CaRT did in this case - nothing that hqs bee posted suggests that they acted other than consistent with this clause.

 

However, I did also find the following from the RYA

 

http://www.rya.org.uk/SiteCollectionDocuments/legal/Web%20Documents/Legal%20Leaflets/Clubs/Premises/ABANDONED%20BOATS%20AND%20TRAILERS.pdf

 

which sets out guidance in detail on how to ensure that action under such clauses achieves the obvious intention and does not fall foul of the 1977 Torts Act. I leave it to others to judge whether the actions in this case are consistent with such advice (which I would be surprised if it is very different from that available to CaRT from Shoosmiths)

 

The matters of lien and action under the above sample clause seem to be to be independent - that is, the mooring owner has the right to move the boat 'elsewhere' (note no limitation to the location of 'elsewhere') regardless of where the matter is in regard to the settlement of debts and any possible lien.

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That is my concern that they put the boat up for sale and sell it.

 

That is Mr Roberts’ natural concern as well. Thus far, CaRT and Shoosmiths are following the same formula they adopted with Leigh – decline to offer any reassurance on that score until the last possible minute [if even then].

 

But unless they disposed of it by private treaty rather than making the sale open to offers from the public as they ought, there will be time enough.

 

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But everything above (Nigel's post, won't quote it) relies on their taking Planet "excessively" far away. The simple facts are, there wasn't a massive amount of choice. They clearly couldn't dock it elsewhere eg Birkenhead docks because that's someone else's area, and relevant authority would be stupid to let a boat with no agreement, against the owner's wishes, into there. The vast majority of CRT's network is too small to accommodate Planet so Gloucester it was. The only other alternatives were a couple of hundred yards away in the same Canning Dock - effectively the same, since the owner and his customers weren't bothered about the trespass etc, it could/would have continued; or a sea anchor, which with winter approaching, and probably no working engine on the boat, would have been deemed much more risky (failing in their duty of care) plus presented much greater practical issues to the owner than Gloucester.

 

I don't think the "out of the County" clause in The Statute of Marlborough can be relied upon quite so strongly as you want it to be.

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The matters of lien and action under the above sample clause seem to be to be independent - that is, the mooring owner has the right to move the boat 'elsewhere' (note no limitation to the location of 'elsewhere') regardless of where the matter is in regard to the settlement of debts and any possible lien.

 

Quite right – what they cannot do once they have removed the boat from their premises, is to deny the right of the owner to take it from where they have left it.

 

If they do, they are still exercising a lien and cannot charge for the impoundment [talking off the top of my head, but I seem to recall that as being the case].

 

The RYA give good advice to their members: either ensure that their agreements are consistent with the Torts Act, or follow the procedures set out in the Torts Act.

 

Shoosmiths are NOT so advising CaRT. They advise that the terms of the agreement remove the situation from any applicability of the Torts Act. In short, that Mr Roberts contracted out of the statute that would otherwise have protected him from summary disposal of his boat.

 

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But everything above (Nigel's post, won't quote it) relies on their taking Planet "excessively" far away.

 

. . .

 

I don't think the "out of the County" clause in The Statute of Marlborough can be relied upon quite so strongly as you want it to be.

 

Not "everything", not by a long shot, but -

 

The Torts Act gives clear rights to CaRT in this situation – it is not a one-sided affair protecting the defaulting vessel owner only. There was no necessity AT ALL to move the vessel IF they chose to go the route of selling it; they could have auctioned it on the spot after due notice. They have chosen to go the route of selling it, but without giving that due notice of a time period within which to reclaim it - they are in fact refusing to now allow him to take it away.

 

The situation is messy precisely because they are seeking to do several incompatible things simultaneously.

 

You may doubt the value of any reliance on Marlborough, but the circumstances of this case are a perfect illustration of the excesses that the original statute sought to protect people from. The wholly unnecessary act [supposing they meant to sell] of removing the vessel elsewhere so far away, has raised the ante from an initial debt of just over £5 &1/2 grand to something around £45 thousand and rising.

 

That is precisely the despicable inflation of punitive costs that Clause IV was designed to prevent. An out-of-touch Law Commission reported that such a clause was redundant and meaningless in today’s society of fast, cheap travel. This is exactly the sort of example of abuse that they ought to be made aware of, to show why the clause needs to remain live and kicking.

 

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This only becomes a real issue if/when they put it up for sale? So far, the moving of the boat hasn't broken any laws (but may come across harsh, due to the distance)?

 

Moving the boat out from their premises was entirely within their rights. No wrong there at all.

 

Moving it the distance they did, at the cost of that, to yet another of their premises? what was the point? If it did not accomplish the aim of simply removing it as goods for which they were responsible – and they had given, in my estimation, sufficient notice that they wished the owner to remove it himself – then the nature of the act becomes highly questionable, at the very least.

 

Spending over £40k just to be rid of it [and STILL not get rid of it] is frankly insane and unjustifiable by any standards, even those of common business sense.

 

I think that it IS breaking the law, because it is interfering with goods - in this case a ship without consent of the master - in circumstances that cannot be covered by the Torts Act – and which they deny relying upon anyway.

 

The “agreement” states that they may dispose of the boat without any reference or notice to the owner. That is clear contravention of the Torts Act.

 

As I have said – they were perfectly entitled under the initial circumstances to put the boat up for sale, provided they followed the correct procedure. Whether they are now, having incurred these ludicrous surplus charges in the execution [as they claim] of a legitimate lien, entitled to reclaim those costs from the proceeds of the sale, is dubious I think.

 

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removing the vessel elsewhere so far away, has raised the ante from an initial debt of just over £5 &1/2 grand to something around £45 thousand and rising.

 

 

 

 

But what was the alternative? You've offered the suggestion that CRT could have sold it in-situ. I say that could have been ineffective because 1) the sale may take some considerable time 2) the sale price (eg by auction) may have fallen well below its perceived market value 3) during and subsequent to the sale, the owner and his customers/staff could and would have continued to use the vessel. Sounds like a half-hearted solution which doesn't really address the issues concerned.

 

Here's an analogy: if you change a timing belt on a car, it costs ~£100 parts. If you ignore it and let it snap, it costs ~£600 parts to replace the valves/head/belt. In the grand scheme of things, a £40k cost is not excessive based on the value of the boat, or the money owed. You think it is, I think it isn't. It will need a court to decide, ultimately; and there is a risk that CRT will win that day in court.

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The fact that CaRT are, regardless, still denying the application of the relevant statute because of the agreement, is a very clear signal that they are fully aware of the enormity of what they have done and are doing.

 

 

 

Shoosmiths are NOT so advising CaRT. They advise that the terms of the agreement remove the situation from any applicability of the Torts Act. In short, that Mr Roberts contracted out of the statute that would otherwise have protected him from summary disposal of his boat.

 

 

I'm fairly sure that it's been noted earlier in this thread, but for the sake of a clear understanding of just how events in Liverpool concerning "Planet" began and evolved into the epoch-making bog-up that it's now become, I'll mention it again.

 

Unlike the routine Section 8 boat acquisitions that are handled entirely by C&RT's 'Enforcement Team' and Shoosmiths, for some reason best known to themselves the seizure and removal of "Planet" from Liverpool was handled entirely by C&RT's North West Waterways Manager and their Liverpool Harbour Master acting on the advice of the local Enforcement Supervisor, and C&RT's own 'Legal Team' who normally seem to do little else other than polish the chair seats in the Milton Keynes office.

 

Shoosmiths involvement only began early on the morning of Tuesday 27 September, with the ship already berthed in Sharpness Dock.

Edited by Tony Dunkley
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From the RYA document my bold - In the case of an abandoned or unauthorised boat and/or trailer (as defined below) the Committee may:- (a) move the boat and/or trailer to any part of the club premises without being liable for any loss or damage to the boat and/or trailer howsoever caused;

 

There is nothing there that allows for the removal of the goods to another place or area. The only interpretation that I can come to by the words "club premises" piece of land/water that are part of the immediate premises where the goods were kept by agreement with the club. Nothing allows for the goods to be removed to a place outside of the premises for which agreement existed in the past to legitimately keep the goods.

 

Thus as I see it if the club were part of a group of clubs with one in Liverpool and one at Sharpness and the goods were normally in Liverpool, there is nothing in the RYA document that even suggests the goods could be removed to Sharpness.

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Given the number of complaints I've come home to this evening about this thread, I'm going to close it for a short while, while I do some reading and pruning.

 

When it is re-opened, I expect you to refrain from mounting personal attacks on each other. Severe action will be taken against those who continue to do so.

 

Wrigglefingers

 

Edited to add ...

 

I've read through what is an important thread. Please make sure you keep it open by staying on topic, do not speculate on people's personal circumstances or make personal attacks either on members here or others. There is a considerable body of well-thought out argument and debate and it would be a great shame to have to close and hide the thread because some have acted inappropriately.

Edited by wrigglefingers
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But everything above (Nigel's post, won't quote it) relies on their taking Planet "excessively" far away. The simple facts are, there wasn't a massive amount of choice. They clearly couldn't dock it elsewhere eg Birkenhead docks because that's someone else's area, and relevant authority would be stupid to let a boat with no agreement, against the owner's wishes, into there. The vast majority of CRT's network is too small to accommodate Planet so Gloucester it was. The only other alternatives were a couple of hundred yards away in the same Canning Dock - effectively the same, since the owner and his customers weren't bothered about the trespass etc, it could/would have continued; or a sea anchor, which with winter approaching, and probably no working engine on the boat, would have been deemed much more risky (failing in their duty of care) plus presented much greater practical issues to the owner than Gloucester.

 

I don't think the "out of the County" clause in The Statute of Marlborough can be relied upon quite so strongly as you want it to be.

To be honest I don't really see any major issue with leaving the boat on a sea anchorage, it is a lightship and that is precisely what they were designed and built for. It isn't as though we are talking about abandoning someone's narrow boat at sea. When it was operational they didn't bring all the lightships into port whenever bad weather was forecastunsure.png . The only issue I could see with that approach is that some means of correctly lighting it an night would have to be found, but as a problem that was hardly insurmountable. I would have said that to tow it to Mersey Bar where it was stationed for a number of years, properly anchor it and tell Mr Roberts where it is (if feeling generous even offer him a lift out to itrolleyes.gif ). The problem of dealing with it then becomes Mr Robert's problem. I would agree that what they have done means that it still remains CRT's problem.

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I would agree that what they have done means that it still remains CRT's problem.

 

This is the crux of this whole problem – from CaRT’s viewpoint - is it not? - that they not only still have the problem, but that they have multiplied the problem at huge cost to themselves – even if they do eventually recover that money.

 

To start with, they were owed a year and 9 months mooring fees, totalling no more than around £9,000, which they were in the process of getting a CCJ over. Now, they have actually spent around £40,000 and more on top of what they had been owed, simply to have the identical but expanded problem in a different location.

 

Originally, they said they preferred to keep the lightship at Liverpool for its heritage and tourist value. Auctioning the boat in situ had the potential to get a new owner sensitive to the need for prompt payment and good business management, while retaining something that was – on their own admission – enhancing the value of their own property.

 

All legal argument aside, it is very obvious that Mr Roberts is not alone in having serious business management problems.

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From the RYA document my bold - In the case of an abandoned or unauthorised boat and/or trailer (as defined below) the Committee may:- (a) move the boat and/or trailer to any part of the club premises without being liable for any loss or damage to the boat and/or trailer howsoever caused;

 

There is nothing there that allows for the removal of the goods to another place or area. The only interpretation that I can come to by the words "club premises" piece of land/water that are part of the immediate premises where the goods were kept by agreement with the club. Nothing allows for the goods to be removed to a place outside of the premises for which agreement existed in the past to legitimately keep the goods.

 

Thus as I see it if the club were part of a group of clubs with one in Liverpool and one at Sharpness and the goods were normally in Liverpool, there is nothing in the RYA document that even suggests the goods could be removed to Sharpness.

 

To begin with, Geo, the RYA is an advice document only, for all that it is generally very sound advice.

 

The point you have picked up on is an interesting one though. It would seem that playing safest entails selling on site if the owner cannot be contacted &/or cannot/does not take his property away.

 

The Torts Act itself says nothing either, as regards simply moving the property off your premises, and provides for sale as the only option in the event of non-compliance with a part I Notice accompanied by a part II.

 

I would still say that moving the goods off your property was a viable option under common law, with a Part I Notice providing adequate indemnity provided they were left somewhere safe, secure, and yet freely available to the owner to collect from. The police advice re moving cars, that I referred to earlier, would be a good guide in this respect.

 

Undoubtedly though, selling on site is best to avoid potential repercussions, with application to the Court for confirmation that you are entitled to do this [as per s.13 of the 1977 Act] being safest of all.

 

All of this, of course, is scoffed at by CaRT and Shoosmiths as irrelevant, claiming that they are acting as permitted by the berthing agreement only.

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But what was the alternative? You've offered the suggestion that CRT could have sold it in-situ. I say that could have been ineffective because 1) the sale may take some considerable time 2) the sale price (eg by auction) may have fallen well below its perceived market value 3) during and subsequent to the sale, the owner and his customers/staff could and would have continued to use the vessel. Sounds like a half-hearted solution which doesn't really address the issues concerned.

 

Honestly Paul, that all seems wide of the mark, given that the stated intention is to sell the boat anyway. In response to your questions -

  1. Why would the sale take any shorter time having been relocated?
  2. Why would the potential sale price be any higher in the different location? If anything, removing it from the location where it had been proving a popular attraction, to a place where no mooring agreement is in place, would detract from the value rather than otherwise; and
  3. What difference would it have made, if the owner and staff continued to use the vessel in the interim, given that this would have meant a greater likelihood of the owner coming up with the owed sums?

So how does relocating the boat “address the issues concerned” any better than my suggestion of selling in-situ, which is indisputably within the parameters allowed in law?

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Honestly Paul, that all seems wide of the mark, given that the stated intention is to sell the boat anyway. In response to your questions -

  1. Why would the sale take any shorter time having been relocated?
  2. Why would the potential sale price be any higher in the different location? If anything, removing it from the location where it had been proving a popular attraction, to a place where no mooring agreement is in place, would detract from the value rather than otherwise; and
  3. What difference would it have made, if the owner and staff continued to use the vessel in the interim, given that this would have meant a greater likelihood of the owner coming up with the owed sums?

So how does relocating the boat “address the issues concerned” any better than my suggestion of selling in-situ, which is indisputably within the parameters allowed in law?

 

Are you saying the current owner already had the boat up for sale previously to its move? For how long?

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To begin with, Geo, the RYA is an advice document only, for all that it is generally very sound advice.

 

 

smile.png My post was a sort of rebuttal to an earlier post that to me seemed to be saying that the RYA advise gave CRT the go ahead to remove the boat off of the Liverpool premises. The recommend RYA mooring/parking trailer advice unfortunately I know well, having been in a position to have to use it. All I can say is that one of our commercial/property lawyer members was horrified when the suggestion was to move some trailers and boats off the club premises to a secure yard a member had room in which we could rent for a peppercorn. So for some months we had problems on site with crowding even thought we moved the stuff into one part of the site and packed it in. We eventually sold it all but one boat which was destroyed.

Edited by Geo
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Are you saying the current owner already had the boat up for sale previously to its move? For how long?

 

? No, where did that idea come from? I am saying that CaRT’s intention has been to sell the boat from the very beginning in the event of non-compliance over the owner’s payment of dues and/or removal. That was in their letter of 15 April 2016, as evidenced in #207.

 

They have since confirmed that they are going ahead with arrangements for sale of the boat.

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? No, where did that idea come from? I am saying that CaRTs intention has been to sell the boat from the very beginning in the event of non-compliance over the owners payment of dues and/or removal. That was in their letter of 15 April 2016, as evidenced in #207.

 

They have since confirmed that they are going ahead with arrangements for sale of the boat.

I can't see the prospect of selling it from under the owner's nose in Liverpool going any way but disasterously.

 

However I agree with your analysis that it should have remained in Liverpool and that now its moved, CRT can't sell it.

 

May I ask......what's the owner's actual future plan for the boat? I don't mean his legal fight, I mean the actual physical boat and the business of running a bar etc. As well you know, a mooring provider isn't obliged to allow any boat to moor in its marina/facility, and they've indicated they will no longer accept Planet in Canning Dock. So his ideal case scenario of CRT towing the boat back to Canning Dock isn't going to happen. Is the owner seeking another, different mooring? If not why not? Basically what's his way forward now? Why not sell up and let someone else manage Planet?

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