toyboy
Well-Known Member
The common law right to navigate tidal waters is puzzling. There is a PRN on the Orwell so surely anything built under the high water mark is an obstruction to the PRN. So how is MDL allowed to build pontoons into the river?
Public Right to Navigate question?
- Thread starter toyboy
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Lucky Duck
Well-Known Member
Or for that matter Felxstowe docks? 
Bru
Well-Known Member
It's quite simple. The default right of navigation through tidal waters can be amended, abrogated in full or in part or otherwise modified by statute or instrument
Felixstowe z and the Orwell are statutory harbours within the boundaries of which the relevant harbour authority has the power to, amongst other things, restrict navigation
This is the basic misunderstanding of common law, it is subject to amendment by statute law and the latter always supercedes (until new common law is created in the courts taking into account the statutes involved)
Felixstowe z and the Orwell are statutory harbours within the boundaries of which the relevant harbour authority has the power to, amongst other things, restrict navigation
This is the basic misunderstanding of common law, it is subject to amendment by statute law and the latter always supercedes (until new common law is created in the courts taking into account the statutes involved)
toyboy
Well-Known Member
This is what puzzles me. I always understood common law is basically that you can do anything if there is not a law against it. Obviously new statutes over ride old common law and just supposing an act has been passed to allow MDL to build out into the river I can moor up and refuse to pay anything?
toyboy
Well-Known Member
Or for that matter Felxstowe docks?
Yes that is annoying but the Felixstowe Dock Acts are law. However I cannot see how they can stop anyone from mooring where the big boats go????
Bru
Well-Known Member
You misunderstand what common law is (or you've been misled by the rubbish plastered all over the Internet about it)
Common law is simply law created by the decisions of the courts as opposed to statute law which is created by parliament (and which includes orders and instruments made under statute law)
There is nothing magical about common law, it confers no special rights or powers, it is simply law like any other law differing only in the way it was created
Like I said, a Common law, like statute law, can be restricted, repealed, amended and modified by subsequent statute or common law
I would assume, logically, that the statute law underlying the creation of statutory harbours deals with the common law right to navigate through tidal waters (otherwise the actions and function of a harbour authority would be impossible to carry out)
Common law is simply law created by the decisions of the courts as opposed to statute law which is created by parliament (and which includes orders and instruments made under statute law)
There is nothing magical about common law, it confers no special rights or powers, it is simply law like any other law differing only in the way it was created
Like I said, a Common law, like statute law, can be restricted, repealed, amended and modified by subsequent statute or common law
I would assume, logically, that the statute law underlying the creation of statutory harbours deals with the common law right to navigate through tidal waters (otherwise the actions and function of a harbour authority would be impossible to carry out)
toyboy
Well-Known Member
I am easily confused these days but I am sure the courts have decided one can navigate and anchor in any navigable tidal waterway. If that is decided then building a pontoon out into a navigable tidal waterway must be an obstruction of the RTN? I am afraid I am not a lawyer so I may not be understanding this correctly. I understood port authorities could make rules about speed and navigation buoys but the Ipswich Dock Acts do not mention anything about leisure craft really and there is certainly no provision to forbid entrance to the dock or exit from same as it was once the river????
Koeketiene
Well-Known Member
Years ago, I moored alongside a visiting warship in Ipswich (Cliff Reach - Vopak terminal) for a couple of drinks in the wardroom.
About an hour later, someone from Ipswich Port Authority showed up to tell us that we were not allowed to moor up there. Ship's CO didn't mind though.
Two hours later, another chappie showed up to tell us the same thing. However, by that time I was no longer in a fit state to take the boat anywhere.
So, chappie left. I slept aboard and we left the next morning.
PeterWright
Well-Known Member
I'm no legal expert, but I have always believed that the statutes creating harbour authorities give the authority the power to create by laws for navigation within their limits. Without such powers it's hard to imagine how a port could operate. I would look to these by-laws, not the act, to see how the harbour authority prevents lunatic yotties bringing up alongside Felixstowe container terminal.
(While the image of some crazed hotties brought up off Felixstowe does have a certain appeal, that was not the intention of my post, just the aberration of Android OS.)
(While the image of some crazed hotties brought up off Felixstowe does have a certain appeal, that was not the intention of my post, just the aberration of Android OS.)
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Bru
Well-Known Member
Ferzackerly
And the right is a right to navigate, to pass through tidal waters including anchoring in the course of navigation (because legal precedent established that anchoring to see out the tide or bad weather is a normal part of navigation - we're talking law established in the days of sailing ships here)
There is no legal right to come alongside at any dock, jetty or other structure nor to lay a permanent mooring
And it would probably take a High Court or above judgement to decide whether the legal right to navigate means you can plough your own furrow through the seas regardless of structures and installations. I rather think that you're expected to avoid bashing into things like piers, jetties and wind turbines etc.!
Bear in mind that common law is also the law of common sense (because it is established by legal precedent in the courts). Despite the high profile "W.T.F.?" judgements from the occasional buffoon, judges are generally very wise in the ways of men with long experience as barristers before being called to the bench.
"The man on the Clapham Omnibus" is the acid test for such judgements. It means that the courts, in the absence of any specific legislation or previous precedent, judge matters on the basis of what a normal, reasonably intelligent, ordinary commuter from Clapham would consider reasonable
(For info, I learnt far more about this sort of stuff than I ever really wanted to know whilst dealing with public rights of way as an officer of the Green Lane Association many years ago. When you've gone head to head with the Ramblers Association you have a pretty good understanding of the meaning of words such as "intransigent", "pig headed" and "selfish"!)
toyboy
Well-Known Member
The Port have authority all the way from Ipswich Stoke Bridge right to Fagbury since an argreement in 1936. The Dock Acts give the harbour master the right to govern where boats moor and to move those not agreeing with his ruling. However I can see nothing that says anything about anchoring and certainly nothing about leisure craft. It would be pretty stupid to anchor in the channel and I cannot see why anyone should want to. However there is nothing in the Acts that allow for building out into the river and the likes of Woolverstone is of little consequence unless used as a precident. I believe one could even go into SYH and anchor without charge. The whole issue is interesting and could be important if we wish to continue sailing on the Orwell.
toyboy
Well-Known Member
That is also a problem for me. I have no legal knowledge at all but my reading of the Ipswich Dock Acts does indeed give the Harbour Authority significant powers. Felixstowe is not part of the port now. I am interested in attempts to build a barrier across the New Cut and of course how access to Ipswich dock is governed. Many Public Rights have already been lost so I am anxious about the future.
toyboy
Well-Known Member
Ferzackerly
And the right is a right to navigate, to pass through tidal waters including anchoring in the course of navigation (because legal precedent established that anchoring to see out the tide or bad weather is a normal part of navigation - we're talking law established in the days of sailing ships here)
There is no legal right to come alongside at any dock, jetty or other structure nor to lay a permanent mooring
And it would probably take a High Court or above judgement to decide whether the legal right to navigate means you can plough your own furrow through the seas regardless of structures and installations. I rather think that you're expected to avoid bashing into things like piers, jetties and wind turbines etc.!
Bear in mind that common law is also the law of common sense (because it is established by legal precedent in the courts). Despite the high profile "W.T.F.?" judgements from the occasional buffoon, judges are generally very wise in the ways of men with long experience as barristers before being called to the bench.
"The man on the Clapham Omnibus" is the acid test for such judgements. It means that the courts, in the absence of any specific legislation or previous precedent, judge matters on the basis of what a normal, reasonably intelligent, ordinary commuter from Clapham would consider reasonable
(For info, I learnt far more about this sort of stuff than I ever really wanted to know whilst dealing with public rights of way as an officer of the Green Lane Association many years ago. When you've gone head to head with the Ramblers Association you have a pretty good understanding of the meaning of words such as "intransigent", "pig headed" and "selfish"!)
The law is updated when those in authority want to curtail public rights such as at the New Cut and Eagle Wharf. These laws have been brought in to cancel Common Law rights of navigation. Normally I expect there is no right to moor alongside except in Ipswich where there is a legal right in the Ipswich Dock Acts which declares Ipswich to be an open port to everyone subject to health regulations. It is quite plain one can drop or pick up passengers as nobody was interested where no cargo fees were involved. I can see no right to lay a mooring and indeed in 2001 the Ipswich Moorings case was extremely interesting and IBC lost our money. There is no legal right for Fox's to exist yet alone have flood defences built around it by EA using our money. The river bed belongs to IBC and not to the port authority which makes it different to most other rivers. I actually left the Ramblers because they gave in too easily
alant
Well-Known Member
Ferzackerly
And the right is a right to navigate, to pass through tidal waters including anchoring in the course of navigation (because legal precedent established that anchoring to see out the tide or bad weather is a normal part of navigation - we're talking law established in the days of sailing ships here)
There is no legal right to come alongside at any dock, jetty or other structure nor to lay a permanent mooring
And it would probably take a High Court or above judgement to decide whether the legal right to navigate means you can plough your own furrow through the seas regardless of structures and installations. I rather think that you're expected to avoid bashing into things like piers, jetties and wind turbines etc.!
Bear in mind that common law is also the law of common sense (because it is established by legal precedent in the courts). Despite the high profile "W.T.F.?" judgements from the occasional buffoon, judges are generally very wise in the ways of men with long experience as barristers before being called to the bench.
"The man on the Clapham Omnibus" is the acid test for such judgements. It means that the courts, in the absence of any specific legislation or previous precedent, judge matters on the basis of what a normal, reasonably intelligent, ordinary commuter from Clapham would consider reasonable
(For info, I learnt far more about this sort of stuff than I ever really wanted to know whilst dealing with public rights of way as an officer of the Green Lane Association many years ago. When you've gone head to head with the Ramblers Association you have a pretty good understanding of the meaning of words such as "intransigent", "pig headed" and "selfish"!)
I think its called " the right of innocent passage".
Mariner69
Well-Known Member
That's the right afforded to warships under the various conventions which require, amongst other things, that submarines transit territorial waters on the surface.
alant
Well-Known Member
& anything wearing a red ensign, including yotties.
Marmalade
Well-Known Member
...mmm I agree - navigating on the surface is always my preferred option.
Gargleblaster
Well-Known Member
However this right would allow any official from the territorial waters transited to board and search your vessel. I have been stopped but not boarded but interrogated by the Douanes off Guadeloupe. I have been stopped and searched by Border Protection [or whatever they are called now] while coming up the English Channel. A German acquaintance [German flagged boat] was stopped by US Customs, boarded and searched approximately 50 miles outside US waters as he was approaching Cuban Territorial Waters.
I suppose that the officials concerned first have to prove to themselves that you are innocent before your right to proceed is granted.
alant
Well-Known Member
By "any official", I presume you mean a boatload of military types, equipped with all sorts of hardware, who also outnumber you!
Not much F'ing choice then!
Gargleblaster
Well-Known Member
And they are in a RIB equipped with two lots of horsepower outboards that can probably outrun my 6 knot cruising speed. When I was stopped in the Channel by Border Protection they were also backed up by a big grey gunboat. But very courteous with lots of 'please' and 'sir' interspersed with their 'requests' for me to stop and allow them to board and search.
I have not yet been stopped and searched myself by the Americans but I find them an emotional contradiction when I meet their Customs/Immigration when entering the US in my own boat. I like the way that they call me Captain both on the radio and in person, but I do not like the fact that they carry sidearms. One of the great things about living in Britain is the fact that the police are not armed, at least the ones I see and meet with the exception of the airports.
All that said I believe that the Border Protection do an important job and if in doing that job occasionally it means I am stopped and searched, that I suppose is the price of freedom.
The last time I was searched was just short of Dungeness and I was surprised how excited they got when flicking through my Australian passport and interrogating me on where I had been they realised that I was in fact returning from such exotic places as Brazil and Namibia. And therefore I must be carrying refugees and if not at least arms. The fact that if I had been I could have offloaded them at my first port of call in the UK, Newlyn, doesn't seem to occur to them. At one stage when I had told them that I had had to go into Brazil as the water in my main tank was foul, I thought they were going to rip up my floor to get a better look at my main water tank. Fortunately they were happy when I was able to pump water out of the tank at the galley sink.