NABO joined with DBA (The Barge Association) and RBOA (The Residential Boat Owners Association) in the following submission to EA in response to the request for comment on the proposed signage to appear at EA’s Thames short term mooring sites.
“Thank you for a last minute opportunity to comment on the intended signage and the conditions attached to the contract that you have let to District Enforcement. We, the undersigned, represent three National Boating organisations whose members use the Thames and are represented on the Thames Navigation Users Forum.
We are disappointed by the aggressive and unwelcoming approach indicated by this signage. Users had been given to understand that the intent was to achieve effective management of short term moorings and not a modified car parking scheme designed to deter anyone from mooring.
It would seem that the advice you have been given by District Enforcement may have misled you. We have taken legal advice with the assistance of the Royal Yachting Association and their lawyer's comments follow below.
Section 136 of the Thames Conservancy Act 1932 as amended by section 23 of the Thames Conservancy Act 1972 reads:
“The Conservators may from time to time demand and receive in respect of vessels using any of the moorings in the Thames belonging to the Conservators the charges appointed by the Conservators from time to time save that no charge shall be made for vessels tied up or moored at night or for a reasonable time when not at work unless the traffic of the Thames is thereby impeded”.
In recent years, by custom and practice, a reasonable time has been taken to be 24 hours. There is no requirement to report arrival or departure.
It would seem from the example signage that your new arrangement exceeds these powers significantly. While the 24 hour free mooring continues there is now a requirement to register on your agent's website or by telephone. Registration attempts to bring with it a contract between the boat owner and District Enforcement to pay fees, including punitive fees for any errors, apparently set and demanded by them, and tries to give them a lien on the vessel should we default. This is beyond any powers that EA currently has under the TCAs or IWO 2010 for moorings as explained in more detail below
There is no clear appeal procedure and no reference to Waterways Thames who are the Navigation Authority and successors to the Thames Conservators. This contract should be suspended and not introduced without further consultation with users and legal advisers on its legality, unfair terms, and intent.
We look forward to your proposals for taking this issue forward.”
Signed by three National boating organisations represented at TNUF
Mike Rodd Chair - National Association of Boat Owners
Charles Foster Chair - Residential Boat Owners Association.
Andy Soper Vice-Chair - DBA - The Barge Association
RYA legal advisor’s comments on District Enforcement example signage
1. The Agency has no power to require a person who moors his or her boat alongside a public facility provided by the Agency to enter into a contract, licence or other arrangement with District Enforcement Ltd (“DEL”). That person’s relationship should be directly with the Agency. Consequently, DEL cannot unilaterally impose any terms and conditions on the use of the mooring facilities provided by the Agency.
2. The relationship between the Agency and the owner of a moored boat is not that of licensor and licensee. The owner of a boat does not need a licence to moor his or her boat temporarily at a public facility on the river – he or she has a right to moor the boat (for a reasonable period of time) subject to the Agency’s power to levy a charge. DEL cannot, therefore, legitimately assert that the mooring of a boat is subject to the licence conditions set out in the proposed signage.
3. Any mooring charge levied by the Agency under article 23 of the 2010 Order is recoverable only as a civil debt – a person who does not pay a mooring charge in respect of a boat does not commit an offence under article 18 of the 2010 Order. There is consequently scope for that person to dispute the amount of that charge and/or that the charge is due at all. It is incumbent on the Agency to demonstrate that the charge is due and the amount of the charge (i.e. when the boat arrived and when it left). A boat-owner’s failure to register a boat on arrival cannot, of itself, be used by the Agency (or DEL) as the basis for imposing a higher charge.
4. An unpaid mooring charge levied by the Agency does not amount to a debt owed to DEL.
5. Neither the Agency nor DEL may exert a “general lien” over a boat for unpaid mooring charges. The exercise of a “general lien” over property is conditional on the person exercising it being in possession of the property – a “general lien” cannot, for example, be exercised over property in the owner’s possession or in a public place. A boat moored alongside a public facility provided by the Agency would not thereby be in the Agency’s or DEL’s possession.
6. Given that litigation is a reserved legal activity under the Legal Services Act 2007, it is unclear as to by what authority DEL could conduct debt-recovery litigation on behalf of the Agency.
7. DEL may be in some difficulty under the Data Protection Act 2018 if it were to install cameras on a public facility on the strength of the proposed signage alone.
8. DEL cannot use the proposed signage unilaterally to impose an indemnity obligation on the master of a boat moored at a public facility provided by the Agency.
In short, a boat moored alongside a public facility provided by the Agency is in a fundamentally different position from that of a car parked on someone else’s private land. Nevertheless, DEL appears to be under the misapprehension that it may approach mooring charge enforcement on behalf of the Agency in the same way that it approaches car parking enforcement on behalf of private land-owners.