Andrew Tettenborn wrote:
Those who like the English property torts, and particularly arguments about how you can at times blithely interfere with property without committing any of them, will like this, decided today:
Club Cruise Entertainment and Travelling Services Europe BV v The Department for Transport [2008] EWHC 2794 (Comm).
A cruise ship came in to Harwich with a history of mild disease on board. An over-zealous official (Jack-Tar-in-office?) promptly served a notice detaining her on the grounds that she was dangerously unsafe under s.95 of the Merchant Shipping Act 1995, causing loss to her owners.
Flaux J held that the official acted ultra vires. The ship, while possibly unsafe, wasn't dangerously unsafe: and no, the Dept of Transport couldn't rely on another power they would have had to repress contagion which they never mentioned and certainly didn't have in mind at the time.
But if the official had acted ultra vires, was he guilty of a tort? The only one that came to mind was conversion (since it was pretty clear there wasn't a trespass or anything similar). But here there wasn't a taking of possession, nor yet an exclusion of the owners: they were welcome to their ship, they just couldn't sail her anywhere or do anything with her. So no way of recovering the loss (apart from a statutory procedure meant to deal with intra vires, not ultra vires, actions).
Seems correct to me, even if unfortunate.
