CRT has responded to NABO’s comments of the proposed changes to Terms and Conditions of Private Boater’s Licences .
General Reply of CRT:
It is noted that NABO considers the terms and conditions “aggressive in tone” and that they object to what they refer to as “lawyer speak”. The terms are not meant to be aggressive and, as far as possible, we have tried to use “plain English”. However, as the use of the waterways is necessarily about rights and obligations, there is a need to spell out as clearly as possible those obligations and the consequences of failing to comply.
Also, the terms and conditions are a legal document and so there will inevitably be some formality in style.
In addition, in order to try to address any concerns or misunderstanding about why we had made certain changes, an explanatory table was provided along with the amended terms to highlight the changes and to explain them..
In addition to our general comment above, our responses to the specific points NABO have raised, are set out below.
NABO Comments and CRT Responses
These proposals seem to adopt an unnecessarily aggressive tone; not the way in which you might expect an organisation to welcome new and retain existing customers. CRT is seemingly trying to bolster the ‘contract’ – not as it states ‘to make it clear to boaters’, most of whom will never read it. It smacks of ‘I have a lawyer and you do not, so I (CRT) will take advantage in this contract because you have no choice’. A new customer should not have to get legal advice before applying for a licence. It greatly saddens us.
If we take it on face value that CRT says it needs these changes to manage current boaters’ misbehaviour, then it is a sad reflection on our waterways. It just goes to show how the misbehaviour of a few has resulted in significant change in regulations for everyone.
CRT should have a note at the end of the T&Cs confirming that agreement to these terms and
conditions does not absolve either party from complying with any relevant law or Act of Parliament governing the canals and rivers administered by the Trust.
Specifically we would comment as follows:
CRT proposes at 1.3: ‘Home Mooring’ is a mooring or other place which will be available throughout the period of the licence where we are satisfied that the boat can reasonably be kept and may lawfully be left when not being used for cruising.
Also this wording in Schedule 2.
95 Act 17 3 1 says ‘(i) the Board is satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere’.
The proposed wording is not exact, but obviously links to this. We suggest it does not say ‘used for cruising’, but says ‘when elsewhere’.
CRT Response to comment on Clause 1.3.
The phrase “when not being used for cruising” is in the current version of the terms and conditions so this is not a change.
We do not consider that there is any inconsistency between the wording “when not used for cruising” and the reference to “when elsewhere” in section 17 (3)(c)(i) of the BWA 1995. The clause provides clarity on what is required when a boat is away from the home mooring on the Trust’s Waterways.
2.1. We dislike the use of the word ‘merely’ in the dialogue. It is unnecessary lawyer-speak for a one sided opinion.
CRT proposes at 3.1: You must cruise on the waterways whilst you are away from the home mooring (save for any period when you leave the waterways or when the boat is lawfully moored at another mooring site).
There is no definition of ‘cruising’ and this could be contentious (although we think it has been used in previous versions). There is no specific requirement to move in the Acts. BW invented the 14-day rule for those with a home mooring, and cites the 62 Act’s powers (as they think fit). This is widely accepted as reasonable, but there is no specific legal requirement to do more. If CRT now wants boaters to ‘cruise’, it must say what it means and how this complies with the Acts. If it means you cannot stop in one location more than 14 days, and then you must move to another location, then CRT should say so.
CRT Reply to Comment on Clause 3.1:
In accordance with Condition 3.1 and 3.2 of the revised terms and conditions, if you have a home mooring, you must cruise on the waterway whilst you are away from your home mooring, stopping only for short periods (defined as 14 days or less if a local restriction applies). This requirement to cruise is the same as it's always been – it is not an amendment to the terms and conditions.
What it means to “cruise” on the waterway when away from a home mooring was explained by our General Counsel, Jackie Lewis, in an e-mail to Mike Rodd dated 23rd February 2015. The following is what she said: “What it means to “cruise” on the waterway depends upon the period of time your boat is away from its home mooring. The longer it spends away from its home mooring, the greater the range of movement expected. As an extreme, if you never returned to your home mooring for the entire period of your licence, we would expect you to cruise continuously and therefore your pattern of movement should be the same as that of a boat without a home mooring. In contrast, however, if your boat spends the majority of the time on its home mooring and only leaves to cruise for short periods of time, then the range of movement expected for each cruise will be much more limited.
To explain further, every time you return to your home mooring (provided that this is not merely for a nominal period in an attempt to circumvent the rules), your cruise ends and “the clock” is effectively re-set. The next time you leave, you start on a new cruise, the extent of which will depend upon the time spent away from the home mooring. If you are away for just a weekend, that cruise will be quite short in terms of distance. On the other hand, if you are away from your home mooring for several months, we would expect to see a much greater range of movement.
By way of example, it would be perfectly acceptable to leave your home mooring for weekend, cruise a short distance and moor for 48 hours (at a legitimate mooring site) and then return to your home mooring, and this pattern of movement could be repeated on several weekends throughout the year. However, shuffling between two locations close together, neither of which is your home mooring, for an extended period is not permitted as that shuffling is not "cruising".”
CRT proposes 3.3: The licence does not give a right to moor that is sufficient to meet the requirement in the British Waterways Act 1995 for the boat to have a home mooring.
This is lawyer’s gobbledegook. We think it means that you cannot adopt a bit of towpath and call it a home mooring. This needs greater clarity.
CRT reply to comment on Clause 3.3:
This wording is in the current terms and conditions. There has been no change and we see no reason to change it.
CRT proposes at 6.5: We may recover from you any costs, charges and/or expenses that we may incur as a result of your failure to comply with the conditions. Examples of what we may seek to recover from you include, but are not limited to: (i) legal costs (ii) daily charges which may be applied for etc.
This is a new departure and it is abrasive in nature. It is typical of BW/CRT behaviour in court when they ask for all sorts of costs and then don’t get them. Perhaps this is the best place for this, because a judge will at least have a view on whether the costs are reasonable. CRT should not be able to invent costs and then take debtors action to avoid the County Court. On a point of detail, the Act 83 s8(5) talks about when CRT can claim costs for moving a boat. This law still applies, notwithstanding CRT’s new words! Of course, this is all meaningless because most of the issues surround those who do not have the means to pay and CRT has never used 83 s8(5) to claim costs!
CRT reply to comment on Clause 6.5
This clause ensures that boaters are clear that on the possible consequences of their failure to comply with the terms and conditions. The right to recover charges, costs and expenses is about restitution, it is not a penalty. In line with our responsibilities as a charity, we do have to protect our resources and recover costs wherever appropriate.
CRT proposes at 7.7: You agree that: (i) we can board the boat and/or enter any land you may own or occupy which is adjacent to the boat, in order to affix or place on the boat, correspondence, contractual or statutory notices or court papers; and (ii) we can come on board the boat to inspect it where we need to check you meet these conditions, and we can cross the boat for the purpose of accessing any adjacent boat that cannot otherwise reasonably be accessed from the bank.. etc.
It must be clear that CRT can only do this at its own risk, with CRT staff having satisfied themselves that it is safe to do so. If the boat is currently licensed the licence-holder shall have the right to refuse CRT permission to board his or her boat by notifying CRT in person or in writing.
CRT reply to comments on Clause 7.7
NABO is referred to the comment we have previously provided in the FAQs a copy of which is provided separately with this document).to issues that have been raised about clause 7.7.
CRT would exercise its rights under clause 7.7 in accordance with the law.
The link to the FAQs is:
Under 7.9 and 7.10 CRT proposes: 7.9 You agree that we may confirm to third party(s) whether or not the boat is appropriately licensed and/or whether you are complying with these conditions and, if not whether we have commenced enforcement proceedings or are proposing to do so
7.10 You agree that where we believe you are failing to comply with the conditions, we may exchange information relating to you and/or the boat with third parties if we consider such action appropriate or necessary… etc.
We would like to see confirmation from the Information Commissioners Office that these clauses comply with the Data Protection Act 1998.
CRT reply to comments on Clause 7.9 and 7.10.
We are satisfied that the provisions we have included in these clauses are compliant with the Data Protection Act. By obtaining a licence subject to the terms and conditions, the licence holder is giving their consent for CRT to deal with their personal data in this way. This is in accordance with data protection principles and is entirely proportionate to the Trust’s need to effectively manage the use of its Waterways.
Under 8.3b CRT proposes: No refund will be payable for any period of suspension or for what would have been the remaining period of your licence if it had not been terminated in accordance with this Condition 8.3.
This is corporate theft and could be seen as a fine and therefore exceeding CRT’s powers. CRT should refund in accordance with the payment terms for anyone who cancels a licence.
CRT reply to comments on Clause 8.3:
The terms and conditions do allow for refunds where the licence is terminated before it expires. Such a right is reasonably not available if the boater is in serious breach of the terms and conditions and their licence is suspended.
Under 8.4 CRT proposes: If your licence is terminated in accordance with this Condition 8, you agree that for the remainder of what would have been the licence period, you will not apply for a new licence and you will remove the boat from our waterways. Should you apply for a new licence during this period, we will not consider the application.
This is unnecessary and bullying. CRT has the powers to refuse a licence and it does not need licence applier’s ‘agreement’ for this. There is no need for such wording and this should be removed.
CRT Reply to comment on Clause 8.4
CRT does have statutory powers to refuse to licence in certain circumstances. This clause prevents those who have had their licence terminated from reapplying for a licence within a limited period of time resulting in valuable CRT resources being wasted by having to process and consider unreasonable and unmeritorious applications.
Under 10 CRT proposes: Variation 10.1. We may from time to time review and revise the conditions. You will be given at least one month’s prior written notice of any substantive changes and we will tell you the reasons for the change. At the end of the notice period referred to above, the changes will be effective and you will be issued with the new revised conditions that replace the previous conditions. You will be deemed to have accepted the changes by keeping the boat on the waterways.
Again this is aggressive and unreasonable. The terms and conditions apply when a licence is purchased and the applicant signs up for this for the licence period. This is then the ‘contract’ which CRT is wishing to use to enforce and enhance its powers. But it holds in such contempt by seeking agreement to vary it ‘on the fly’. Is CRT really so uncertain about the T&Cs that it cannot plan a year ahead!
CRT may have the powers for this, but this is not the way to treat customers. CRT cannot possibly need to have an instant change for everybody at once. It will catch up with everybody within a year, maximum.
Our view is that if CRT wants to change the terms within the duration of a licence, then it must write to the licence-holder and get written agreement. Putting it on the website is not enough. This is typically lazy and bad management practice.
Under 11 CRT proposes: all kinds of legal clauses.
All lawyer-speak, which has its place and merits in courts, but not here; it is unnecessary and confusing. The whole thing strikes us as aggressive and without merit for either party.
"The court can hold a rule to be invalid even though it is contained in a contract" . Lord Denning. " Nagle v Feilden (1966) 2 QB 633"
CRT reply to comments on Clauses 10 and 11.
We are satisfied the clauses are reasonable and entirely appropriate. They are standard boiler plate clauses of the type often included in contracts. It is good practice to include them for clarity.
10th February 2015