The Tide is Turning Against Trespassing and Derelict Vessels

The expression “a man may not use the highway to stable his horse” reflects the rule of law that the public right of navigation, that we all enjoy, does not include a right of an individual to anchor or moor beyond what is reasonably necessary for the active navigation of their vessel.  This is frequently misunderstood.

Many vessel owners, particularly those that cannot locate or afford regular moorage, argue the right of navigation also includes a right to anchor or moor wherever, and for however long, they please.  Historical confusion about local, provincial and the federal governments’ rights and responsibilities regarding vessels has stalled efforts to remove hundreds of vessels across the provinces that fall just short of being true navigational hazards, but are otherwise environmental threats and public irritants.   Fortunately, several recent court decisions have provided clarity in this area of marine law.

Before describing these cases, however, it is useful to note several definitions.  The word “derelict” has become commonly used by the media to describe any vessel left where it is not wanted.  In fact, the judicial definition of “derelict” is property, whether vessel or cargo, abandoned by those in charge of it without hope on their part of recovering or intention of returning to it.  Likewise, the judicial definition of “abandoned” is the voluntary relinquishment by its owner with the intention of terminating ownership, possession and control without vesting ownership in another party.  Given these definitions, many vessels that are left anchored, moored or beached for long periods of time are not necessarily true derelict vessels, or in fact abandoned, because their owners may either intend on returning to them or otherwise do not intend on terminating their ownership.

While obvious to most readers, the definitions of anchoring and mooring are sometimes confused by non-mariners. Anchoring, of course, is the temporary manner of securing a vessel using tackle that is intended to be hauled aboard the vessel, while mooring is a more permanent method of securing a vessel using ground tackle which is not intended to be, and cannot conveniently be, brought aboard the vessel (i.e. it is left behind) (Harris, D. – Law of Mooring, 2005).  The reason these definitions become important is that anchoring is often referred to as mooring, and vice versa, but unlike anchoring, the owner of a vessel who leaves their mooring behind (such as a concrete block and float) may be trespassing even though their vessel is nowhere to be seen.

In the August 2010 issue of Legal Net, we reviewed the B.C. Provincial Court case of Regina v. Lewis (2009) in which Mr. Lewis was charged with an offence under the federal Boating Restriction Regulations which prohibited the mooring of vessels in False Creek without a permit.  Mr. Lewis challenged the constitutional validity of the regulation, saying it regulated a matter of property (his vessel and use of the seabed), which was within provincial jurisdiction.  The court held the regulation was constitutional, and had the following to say about the right to anchor:

There is a common law right to navigation which includes the incidental right to anchor. This is not a right to anchor or moor permanently but it must be exercised reasonably as determined by the circumstances at the time of anchoring such as the weather, loading or unloading of the vessel, or the need for repairs to the vessel. The right to anchor therefore contemplates the right to do so for a reasonable time, for a reasonable purpose. Both the right to navigation and the right to anchor must not be exercised so as to interfere with the equal rights of others….The rights apply in navigable waters that have been defined as any body of water capable, in its natural state, of being navigated by floating vessels of any description.

Along with anchoring to wait out weather, to load or unload, and to service the vessel, anchoring to allow the crew to rest is undoubtedly part of the reasonable and safe navigation of the vessel, although no particular case appears to state this obvious point despite it being one of the most common reasons to anchor.

In West Kelowna v. Newcombe (2013), the B.C. Supreme Court considered whether the City of Kelowna could regulate anchoring and moorage on portions of Okanagan Lake.  Although the decision related to a lake, it is applicable to all navigable waters.  The City of Kelowna, which had been granted a licence of occupation by the Province to parts of the lakebed, enacted a zoning bylaw that limited anchoring and mooring of vessels to temporary use accessory to the use of immediate upland property (i.e. you could only anchor if you anchored temporarily in front of land you owned).  Mr. Newcombe had moored his houseboat within a restricted area for approximately 22 months, except when he was making seasonal recreational use of it around the lake. The City of Kelowna applied for an injunction restraining Mr. Newcombe from mooring (and anchoring) any vessel within the restricted area.

Among other arguments, Mr. Newcombe challenged the constitutionality of the City’s zoning bylaw.  He argued the Federal Government has exclusive jurisdiction over navigation and shipping, and a local government bylaw could not restrict mooring of vessels because it was a matter of navigation that was purely for the Federal Government to regulate.  The City argued it had constitutional authority to regulate land use, including land covered by water, and that by prohibiting anchoring and mooring it was simply regulating its land – the fact that this affected vessels was incidental.  The Court noted the bylaw did not single out any particular type of vessel or characteristics of vessels.  The Court found the bylaw was valid (within the City’s right to regulate), but to the extent it interfered with the common law right to navigate, it was not applicable.  The court stated the following about the limits to the right to moor (including anchor):

It is clear… that some anchorage and/or moorage is core to navigation and shipping. For recreational navigation, such as the type engaged in by the defendant in July and August 2011, overnight moorage, emergency anchoring or mooring, anchoring or mooring for repairs, or anchoring or mooring for the purpose of provisioning his houseboat, may well be vital to his rights of navigation. On the other hand, long-term moorage of the type the defendant utilizes at times when he is not actually on board his houseboat… which in my view amounts to him “using the highway to stable his horse”, is not a core of the public right of navigation.

On its face, the [zoning bylaw] makes impermissible any kind of moorage unless it is accessory to the immediately abutting upland parcel. The Bylaw goes much further than prohibiting non-temporary, long-term or permanent moorage. By prohibiting, on its face… even temporary moorage incidental to the actual use of a recreational boat, the District has trenched on the federal power over matters of navigation and shipping…

What these and other recent cases demonstrate is that the right to anchor or moor has limits, and it is not the Federal Government alone that can take action to limit how and when vessels anchor and moor.  Based on how the law is evolving, it is my prediction local and provincial governments will become more active enforcing where and for how long vessels may be anchored and moored.

Darren Williams is a marine lawyer with League and Williams in Victoria and can be reached for question or comment at dwilliams@leaguelaw.com or by phone at 250-888-0002.