From Canalworld.net
The original post
Minos describes his post “…this is only an attempt at an objective analysis by an interested amateur”.
It is reproduced here without comment, suffice that we think it important to examine all possible implications of this judgement.
From the judgement:
“in general terms section17 of the Act required all vessels used on the waterways either to have a permanent mooring site or to be used bona fide for navigation throughout the period of the licence. This was achieved by making the issue of licences conditional on the Board being satisfied either that the vessel would have a permanent mooring site or that it would be used bona fide for navigation throughout the period of the licence.”
From the text of the Act, subsection (3) (c) (ii)
“the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.”
I’d not looked closely at this before, but in legal terms it is explicit: the British Waterways Board are empowered by the Act to judge for themselves what constitutes ‘bona fide’ navigation and what doesn’t. Not only that, but by using the legal term ‘bona fide’ in the Act, the intention of the person is more important than their actions. This is explained in para. 13 of the judgement. In effect, it means that BW are entitled to refuse a licence because they don’t like the look of your application – and it is up to you to prove that they are being unreasonable.
On the detail:
From Bouvier, with referencing removed:
Quote
The law requires all persons in their transactions to act with good faith and a contract where the parties have not acted bona fide is void at the pleasure of the innocent party. If a contract be made with good faith, subsequent fraudulent acts will not vitiate it; although such acts may raise a presumption of antecedent fraud, and thus become a means of proving the want of good faith in making the contract. In the civil law these actions are called (actiones) bonae fidei, in which the judge has a. more unrestrained power (liberior potestas) of estimating how much one person ought to give to or do, for another; whereas, those actions are said to be stricti juris, in which the power of the judge is confined to the agreement of the parties.
(And before anyone complains that Bouvier is an American source, the US and the UK share a lot of common law, and this is one principle shared by both.)
This definition of ‘bona fide’ is the basis of the defence claim that ‘The defendant’s deliberate compliance with the law could not deprive his actions of good faith.’ It is also the justification for BW’s actions.
Anyway, back to the point. What this means is that the BW authority is legally entitled to judge for themselves whether they think that an applicant is acting “in good faith.” Given his misconduct described in para. 6 of the judgement, he clearly gave them every reason to believe he wasn’t – not least because of his navigational, professional and social ties to such a small geographical area. They also concluded that he did not act ‘in good faith’ in para. 10 of the judgement.
BW chose to concentrate on the definition of the word ‘navigation’ – and they are empowered Parliament to use that emphasis if they so choose.
The bit that I am really interested in is this part of para. 15 of the judgement:
“It is possible to envisage use of a vessel which fell short of the Board’s concept of continuous cruising but which still qualified the vessel for a licence under section 17(3)(c)(ii).” In effect, the Judge acknowledges that genuine continuous-cruisers may very easily fail to adhere to the letter of BW’s guidelines but still adhere to its spirit in good faith – bona fide.
Put it all together and it seems to me that the implication is that while the movement of your boat on the water matters, what you do on land seems to matter more.