Southampton Port Health Authority v. Seahawk Marine Foods Ltd.

The appellant (Seahawk) tried to import a cargo of frozen cooked shrimps intended for human consumption from Vietnam into the United Kingdom and into the territory of European Union (EU). The defendant (the Health Authority) rejected the cargo from landing at Southampton and subsequently prohibited its entry into the areas of EU, claiming that the consignment did not comply with certain relevant health conditions set forth in various EU Council Directives and EU Commission Decisions. In particular, the levels of “aerobic colony counts” were too high, indicating that that the manufacturer had not complied with the EU’s processing requirements.

Seahawk appealed to the Administrative Court who quashed the Health Authority’s decision, noting that a necessary condition of any action against a particular good is that such good be shown to constitute an actual risk to public health. The Health Authority, in turn, appealed the Administrative Court decision.

The Court held that the Health Authority’s rejection of the shipment was not ultra vires; it allowed the appeal and restored the decision of the Health Authority.

The Court first reiterated that, under national regulations, the Health Authority did have the power to reject the shipment where such shipment either (a) did not comply with public health conditions or (b) posed a risk to human health. The Court further noted that considering the difficulties of evidencing risk to human health, it was customary to prohibit those foods that were manufactured under conditions which could produce such risk.

Domestic legislation aside, the Court determined that the question at issue was whether the EU provisions which the Health Authority had relied on to reject the shipment did, in fact, authorize such rejection. Seahawk claimed that the criteria (related to the acceptable levels of “aerobic colony counts”) on which the Health Authority had based its rejection were set forth by the relevant EU Directive merely as a guideline to help manufacturers determine if they need to review their procedures and thus could not be grounds for rejection of imports.

The Court disagreed. It held that, contrary to the Administrative Court’s reasoning, demonstration of actual risk to the public was not a necessary condition of any action against a particular good. The Court further determined the Health Authority had the duty under the relevant EU Directive to require a broad range of checks on imports to verify compliance with the Community conditions and that such checks could be carried out for purposes other than merely determining whether the foods were fit for human consumption. In this case, the checks used by the Health Authority evidenced the possibility of the breach of certain requirements set out by the relevant EU Directive. Thus, the Health Authority clearly had the vires to perform such checks and take action on the results.

The Court also noted that that between the fundamental EU interests of free trade and the protection of consumer health and safety, the latter should be the priority.

In response to Seahawk’s argument that, even if the Health Authority did have the power to take action, the outright rejection of the shipment was a disproportionate action, the Court determined that such a decision on proportionality required further evidence regarding the feasibility of the Health Authority taking additional testing steps. Considering that the only expert evidence currently before the Court indicated that no further testing was necessary, the Court refused to make a finding of lack of proportionality.

Finally, the Court rejected Seahawk’s additional arguments relating to (a) the fitness certificates provided in the Vietnamese port evidencing fitness to Community standards; (b) the inconsistency of rejecting only those consignments which failed the aerobic bacteria test (and not all shipments emanating from the same manufacturer); (c) the uncertainty that arose from allowing a manufacturer to market goods that might be banned by the Health Authority; and (d) certain discrepancies in the form of the notice.

“The overall objective is the protecting of public health, but because of difficulties of proof, and the teaching of experience, it is customary to prohibit the sale or consumption not only of foods that can be positively shown to be a risk to human health; but also foods that have been manufactured or handled in conditions which experience indicates to have a tendency to produce foods that pose such a risk. Hence, in any food-related regulations there will be found elaborate codes of hygienic practice, breach of which in relation to any goods will lead to the condemnation of those goods whether or not, in the given case, the potential risk to health can be shown to have eventuated”.  Paragraph 8

“23. I am not able to agree with the judge that a necessary condition of any action against particular goods is that they must be shown to constitute an actual risk to public health…

24. … But the argument is irrelevant to the point that attracted the judge, because he held, not that the health authority could not rely on an independent assessment of actual danger to public health; but that the authority could only act when such a danger was demonstrated.

25. I am therefore not able to agree with the judge's reasons for quashing the Notice.” Paragraphs 23-25

“29. The expert evidence in this case (see paragraph 19 above) indicates how the checks used by the Health Authority in this case illuminate the possibility of breaches of the requirements set out in Directive 91/493. That was the reason why the Health Authority undertook the checks, and in my view it plainly had vires to do so. Indeed, if Seahawk are right, a Health Authority could never reject a consignment on the basis of its aerobic bacteria count, however gross were the breaches of Community regulations that the count indicated.” Paragraph 29.