A boater has recently drawn our attention to Halsbury’s Rules of English Law Volume 44. These are the rules judges and courts refer to when guidance is needed. Few lawyers know or use these rules when representing boaters.
Boaters need to know that the 1971, 1983 and 1995 British Waterways Acts are Local or Private Acts of Parliament. This is to be distinguished from a private member’s Bill/Act which is something entirely different.
Regarding the interpretation of Private Acts, Paragraph 1497 states:
“Where there is any real doubt as to its meaning, a Private Act must be construed strictly against the promoters. It follows that, as between the promoters and members of the public, a Private Act shall be construed liberally in favour of the public, so that 1) Clauses to preserve general rights will be widely interpreted…”
This means that, where there is a dispute between the promoter (BW) and the individual, the court should interpret the legislation liberally in favour of the public, ie the defendant. In other words, when BW terminate a boat licence because the boater is not cruising according to BW’s interpretation of Section 17 (3) c ii (the Mooring Guidance for Continuous Cruisers), the court should rule that BW cannot enforce its own interpretation of the law. If you know anyone who is in this situation, make sure they know about this rule and use it in court!
The boater has recently written to BW asking whether BW takes full account of this when interpreting the 1995 Act against boaters, and if not, why not. He hasn’t had a reply yet…
Tags: 14 day rule, bona fide navigation, continuous cruising, Section 17, Waterways Act 1995
This is not a ‘carte blanche’ ruling to say BW is always wrong. The word of imortance here is ‘real’.
“Where there is any ‘real’ doubt as to its meaning,. . . . That doesn’t mean that if a group of boaters get together and challenges the rules that the court has to find in their favour. There has to be real doubt from the judge that BW were interpreting the law incorrectly. Not some barrack room lawyer picking over every tiny little nuance of the law.
Of course the genuine CCer could put forward his thoughts totally in favour of the BW interpretation outnumbering those that seek to bend the law to meet their own agenda.
At the end of the day if you sign the CC agreement and do not understand the CC Mooring Guidance (which is very straight forward) then maybe boating isn’t for you.