Date: Tue, 18 Nov 2008 15:36

From: Andrew Botterell

Subject: Interference with property

It's a nice case. But I can imagine my students objecting as follows: suppose through your negligence your football lands in my back yard. And suppose I refuse to allow you to take it back (perhaps I think it poses a hazard to children playing nearby). I do allow you to play with it on my land, however, under my supervision, and while I allow you to do whatever you want to it – paint it, deflate it, what have you – I won't allow you to take it home with you. Aren't my actions inconsistent with your rights to the football? True, you are welcome to your football, in the sense that you can play with it (albeit under my supervision), but of course you can't go anywhere with it. But surely that is one mark of ownership. So it seems to me that I have done something that is inconsistent with your title to the football. And I'm not sure how this case differs from Club Cruise Entertainment.

Maybe it will be said that in my football case there was a taking of possession, so that I'm guilty of a trespass to chattels. But surely I didn't take it in any ordinary sense: I didn't actively take it from you, and since it found its way onto my land as a result of your negligence I'm not at fault for its being there either.  

Any thoughts?

Andrew

On 18-Nov-08, at 10:02 AM, 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.

_________________________________
Andrew Botterell
Assistant Professor
Dept. of Philosophy and Faculty of Law
University of Western Ontario
http://publish.uwo.ca/~abottere

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