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 the Second World War.
Held: The review was granted. It was clear that some merchant ships were not to be protected in this way, but in this case the merchant officers were subject to naval discipline. The description by the respondent of the gunners serving on the vessal as passengers was bizarre. The cargo included armoured tanks, and anti-aircraft devices. ‘a vessel, not being one of Her Majesty’s vessels, nor belonging to Her Majesty, but being a red ensign vessel (Merchant Shipping Act 1894, section 73(4)) belonging to a British subject, in convoy under one of Her Majesty’s ships, is whilst travelling in convoy: (1) obliged to obey the Commanding Officer of Her Majesty’s vessel in relation to matters relating to the navigation or security of the convoy;
(2) obliged to take such precautions for avoiding the enemy as may be directed by such Commanding Officer; and
(3) is subject to compulsion to obey by force or arms without liability for loss of life or property which may result from forceful compulsion.’ the STORAA was not, when it sank, simply carrying cargo. It was voyaging under compulsion in dangerous waters, laden with cargo, in a convoy under the protection of a naval vessel, and was armed so as to be able to engage in conflict with the enemy. It was also carrying Royal Naval personnel, namely members of the armed forces having the duty to protect the vessel and the convoy. The context of the Act requires attention to be paid to the fact that a merchant vessel was armed, so as to engage the enemy, and was required by law to obey all directions given by a Commanding Officer of the armed forces, not simply to protect itself but in matters ‘relating . . to the security of the Convoy’. A merchant vessel in convoy cannot act as it sees fit to protect itself and its cargo. By joining the convoy each vessel is bound to act in the interest of the other vessels and, to that extent, is required to act jointly.
Judges:
Mr Justice Newman
Citations:
[2005] EWHC 2888 (Admin), Times 13-Jan-2006, [2006] 1 LLR 579, [2006] 3 WLR 53, [2006] 1 Lloyd’s Rep 579
Links:
Statutes:
Protection of Military Remails Act 1986, Naval Discipline Act 1957 132(1), Ministers of the Crown (Emergency Appointments) Act 1939 1(1), Naval Discipline Act 1866 30
Jurisdiction:
England and Wales
Citing:
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Brutus v Cozens HL 19-Jul-1972
The House was asked whether the conduct of the defendant at a tennis match at Wimbledon amounted to using ‘insulting words or behaviour’ whereby a breach of the peace was likely to be occasioned contrary to section 5. He went onto court 2, blew a . .
Cited – Moyna v Secretary of State for Work and Pensions HL 31-Jul-2003
The appellant had applied for and been refused disability living allowance on the basis of being able to carry out certain cooking tasks.
Held: The purpose of the ‘cooking test’ is not to ascertain whether the applicant can survive, or enjoy a . .
Cited – 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 – Clan Lines Steamers Ltd v Liverpool and London War Risks Insurance Association Ltd 1942
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 . .
Cited – Yorkshire Dale Steamship Co Ltd v Minister of War Transport HL 1942
Treatment of Merchant as War Vessel
The House considered when a merchant vessel may be treated on the same footing as a war vessel and be deemed to be engaged on a warlike operation.
Held: This depended on the nature of the cargo and the voyage: ‘She was then in the act of . .
Cited – Britain Steamship Company Limited v The King and Others (‘The Matiana’) CA 1919
(Year?) The steamship was insured under a time policy against perils of the sea and stranding, and under further insurance against risks excluded under the first, particularly risks of hostile action. It was in a convoy of four ships zig zagging in . .
Cited – Britain Steamship Company Limited v The King and Others (‘The Matiana’) CA 1919
The court was asked wheter a merchant vessel was acting a a military ship when in convoy.
Held: The appeal succeeded. Warrington LJ said: ‘Of course the sailing with convoy may easily assume the character of a warlike operation; if the convoy . .
Cited by:
Appeal from – Fogg and Another, Regina (on the Application of) v Secretary of State for Defence CA 5-Oct-2006
The Secretary of State appealed an order declaring the wreck of a merchant ship lost through enemy action in 1943 when part of a convoy. He said it was wrong in law to make the declaration, having not been in military service as such when sunk even . .
Lists of cited by and citing cases may be incomplete.
Armed Forces
Updated: 13 October 2022; Ref: scu.237445
