In a collision in fog between the steamship Clan Stuart and the steamship Orlock Head, whilst both were travelling in convoy in the English Channel, the Clan Stuart was lost. It was said that the Orlock Head was engaged on a warlike operation and that the collision arose as a consequence of that warlike operation. The Orlock Head was carrying steel bars for munitions to France and was following a course set by the Admiralty.
Held: The court considered the significance which can flow from merchant vessels having travelled in convoy.
Atkinson J: ‘The conclusion at which I have arrived from a careful examination of the authorities to which I have referred is this, that a warlike operation is one which forms part of an actual or intended belligerent act or series of acts by combatant forces; that part may be performed preparatory to the actual act or acts of belligerency, or it may be performed after the actual acts or acts of belligerency, but there must be a connection sufficiently close between the act in question and the belligerent act or acts to enable a tribunal to say, with at least some modicum of Lord Dunedin’s common sense, that it formed part of acts of belligerency. If military equipment is being taken in a ship to a place behind the fighting front from which the forces engaged, or about to be engaged on that front, may be supplied, that ship may beyond question be said to be taking part in a warlike operation. If a ship is bringing home such equipment after it has been employed on a fighting front, or has been lying available for and at the service of a fighting front, again beyond question in view of the decisions she is taking part in military operation; but to hold that to carry steel rounds on behalf of the French Armament Mission from Manchester to a port mainly used for commercial purposes, albeit also used at times for receiving supplies of munitions of war, for the purpose of carriage to some factory or factories doubtless to be chosen because of their distance from the fighting front, is a warlike operation would be to hold something which, in my judgment, would be completely out of harmony with the substance of everything said since Britain Steamship Company, Ltd. v. The King, sup. The cargo of the Orlock Head was not yet military equipment. I do not say that that is in itself conclusive. It is unnecessary so to decide. Army workshops may, for all I know, have to handle much material not yet in its final usable form, but this cargo was not destined for a force in the field, but only for a factory; it was not being carried to a place where it would be available for an army in the field; that is, an army engaged in or about to engage in acts of belligerency; it was not connected with any belligerent act or acts of an army in being; and, in my judgment, it is outside everything indicated in the cases to which I have referred. It is quite true that odd sentences here and there may be found in the judgments and opinions given in the cases which, taken by themselves, may seem to go beyond the view which I think the cases present; for example, a passage much stressed by Mr. Hodgson: ‘The real point to my mind …. is whether the ship in question was engaged on a war errand, so that she was engaged in a warlike operation at the moment when the collision occurred,’ language used by Lord Wrenbury in Liverpool and London War Risks Insurance Association, Ltd v Marine Underwriters of s.s. Richard de Larrinaga, but if the context is examined it will be seen that he was speaking, not of a commercial ship, but of a warship where different considerations apply. If there is to be a further development in the application of the words ‘warlike operation’ it must come from a higher tribunal than a judge of first instance. In my judgment, therefore, the collision was not a consequence of hostilities or of a warlike operation, and the claim fails’.
 73 Ll L Rep 165
England and Wales
Applied – Britain Steamship Company Limited v The King and Others (‘The Matiana’) HL 1921
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 . .
Cited – Fogg and Ledgard v The Secretary of State for Defence, Short Admn 13-Dec-2005
The applicants sought judicial review of a decision of the respondent not to name the wreck of the merchant ship SS STORAA as a protected site under the 1986 Act. It had been a merchant ship forming part of a convoy, and was sunk by enemy action in . .
These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.237693