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Britain Steamship Company Limited v The King and Others (‘The Matiana’): HL 1921

References: [1921] 1 AC 99
Coram: Lord Atkinson, Lord Wright, Viscount Cave, Lord Shaw
The House considered the relationship between a merchant vessel in convoy and a convoying naval vessel.
Held: The appeal succeeded. Lord Atkinson: ‘With all respect, I am quite unable to concur in the learned judge’s view that the merchant ships convoyed, whose task was simply to sail peacefully on the course they might be directed to follow, and to keep their proper places in the convoy, became so identified with the ships of war directing and protecting them, as to be treated as members of a joint flotilla on a common enterprise. I concur with Atkin LJ in thinking that the learned judge treats as he said the sheep and the shepherd as both engaged in the operation of shepherding. The duties and proper tasks of convoying warships and the ships they convoy are respectively indicated in ss 30 and 31 of the Naval Discipline Act of 1866 . . The naval officers are to diligently perform the duties of convoying and protecting the ships they are appointed to convoy according to instructions, to defend these ships and the goods they carry without deviation, to fight in their defence if they are assailed and not to abandon them or expose them to hazard. Every master or other officer in command of any merchant or other vessel convoyed is bound to obey the commanding officer of the ships of war in all matters relating to the navigation or security of the convoy, and is also bound to take such precautions for avoiding the enemy as may be directed by this commanding officer. It does not appear, however, that this latter officer has any power to require the master, officers or crew of any merchant ship which is being convoyed to take combative action against a vessel of any kind, or to join in such action if taken by all or any of the ships of war. The roles of the two classes of ships are entirely different in nature and character. That of the ships of war is protective and if need be combative; that of the merchantmen is not at all combative in nature and character as would be their enterprise in time of peace’ Viscount Cave: ‘But in the present case the orders were a part of the convoying operation which included the choice of the route, the setting of the course, and the precautions taken on the voyage; and I do not think that the transaction can be split up and treated as in part an operation and in part something other than an operation . . .’
Lord Shaw: ‘ . . I think that the putting of a vessel under convoy, with all that that involves, is an actual and accomplished change of circumstances and an operation which is conducted in the course of hostilities or war . . .’ and ‘To all intents and purposes it is the same as if he had placed on the convoyed ship a naval officer in command as subordinate to himself. In short, so far as the direction of the course of the vessel was concerned, the merchant captain and officers were no longer in control. The naval officers were. Not only so, but the orders of the commander of the convoy were clothed with the instant sanction of force . . . I myself see great force in the view which Bailhache J. so clearly expresses to the effect that all the vessels – those acting as convoy and those under convoy – must be treated as a unity. . . . I am humbly of opinion that, so far as ships under convoy are concerned, all these ships are, along with the ships acting as convoy, under a unified command, and that command issuing from the commander of the convoy is, as part of the direction of the convoy, a military operation.’
Statutes: Naval Discipline Act 1866 30
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Last Update: 16-Dec-15 Ref: 237694

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