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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  















Armed Forces - From: 1930 To: 1959

This page lists 8 cases, and was prepared on 03 April 2018.

 
China Navigation Co Ltd v Attorney General [1932] 2 KB 197; [1932] All ER 626
1932
CA
Lawrence LJ
Constitutional, Armed Forces
The Plaintiffs, an English shipping company, carrying on business in Hong Kong, traded in both local and Chinese waters. Its trade consisted both of carrying cargo and passengers. The Chinese and neighbouring waters were infested by pirates who frequently attacked ships trading in those waters, both from within and without the ships, the attacks from within being by evil-disposed persons who came on board - whether at the port of Hong Kong or Chinese ports - ostensibly as ordinary and peaceable passengers but who, on opportunity overpowered the officers and crew and took possession of the ship and all valuables therein. For some time the Government of Hong Kong was prevailed upon by various ship owners, including the Plaintiffs, to provide and place naval and military guards on board. Subsequently, however, Government notffied ship owners that as from a specified date ship owners would be required to pay in full for all guards supplied. The Plaintiff instituted proceedings in England against the Attorney General of England as representative of the Crown, seeking declarations that the Crown had no authority to demand money for providing protection against piracy, the ship owners, as subjects of His Majesty, being entitled to require the Crown to provide the necessary protection without payment. Rowlatt, J, before whom the action first came, dismissed it as misconceived. Held: The Court of Appeal affirmed that decision. The Crown is under no legal duty to afford military protection to British subjects abroad. If, in the exercise of its discretion, the Crown decides to afford such protection, it may lawfully stipulate that it will do so only on the condition that the cost should be borne by those requiring such extraordinary protection.
The legal history relating to the relationship between servicemen and women and the Crown can be traced back over many centuries, and at least since the reign of Charles II, the government and command of military forces had been vested in the Crown by prerogative right at common law and by statute.
1 Citers


 
Shaw Savill and Albion Company Ltd v The Commonwealth (1940) 66 CLR 344; [1940] HCA 40
1940

Dixon J
Armed Forces, Torts - Other, Commonwealth, Armed Forces
(High Court of Australia) The plaintiff owned a ship "The Coptic" which was in a collision with His Majesties Australian Ship "Adelaide". The plaintiff alleged that the collision resulted from the negligence of the defendant's officers, saying the Adelaide was sailing too fast, that it failed to keep a proper lookout for the Coptic and that it was not navigated in a proper and seaman like manner. The defence was that, at the relevant time; the Adelaide was part of the naval forces of Australia and was engaged in active naval operations against the enemy. The Court accepted that in principle such a defence was open to the state:"It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King's ship of war was under a common-law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations. It cannot be enough to say that the conflict or pursuit is a circumstance affecting the reasonableness of the officer's conduct as a discharge of the duty of care, though the duty itself persists. To adopt such a view would mean that whether the combat be by sea, land or air our men go into action accompanied by the law of civil negligence, warning them to be mindful of the person and property of civilians. It would mean that the Courts could be called upon to day whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. No one can imagine a court undertaking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy. It must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. But the real distinction does exist between active operations against the enemy and other activities of the combatant services in time of war."
1 Citers


 
Shaw Savill and Albion Company Ltd v The Commonwealth (1940) 66 CLR 344; [1940] HCA 40
1940

Dixon J
Armed Forces, Torts - Other, Commonwealth, Armed Forces
(High Court of Australia) The plaintiff owned a ship "The Coptic" which was in a collision with His Majesties Australian Ship "Adelaide". The plaintiff alleged that the collision resulted from the negligence of the defendant's officers, saying the Adelaide was sailing too fast, that it failed to keep a proper lookout for the Coptic and that it was not navigated in a proper and seaman like manner. The defence was that, at the relevant time; the Adelaide was part of the naval forces of Australia and was engaged in active naval operations against the enemy. The Court accepted that in principle such a defence was open to the state:"It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King's ship of war was under a common-law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations. It cannot be enough to say that the conflict or pursuit is a circumstance affecting the reasonableness of the officer's conduct as a discharge of the duty of care, though the duty itself persists. To adopt such a view would mean that whether the combat be by sea, land or air our men go into action accompanied by the law of civil negligence, warning them to be mindful of the person and property of civilians. It would mean that the Courts could be called upon to day whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. No one can imagine a court undertaking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy. It must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. But the real distinction does exist between active operations against the enemy and other activities of the combatant services in time of war."
1 Citers



 
 Clan Lines Steamers Ltd v Liverpool and London War Risks Insurance Association Ltd; 1942 - [1942] 73 Ll L Rep 165
 
Reading v Attorney General [1951] AC 507; [1951] 1 All ER 617; [1951] 1 TLR 480; 95 Sol Jo 155; [1951] UKHL 1
1 Mar 1951
HL
Viscount Jowitt LC, Lord Porter, Lord Normand, Lord Oaksey
Agency, Armed Forces, Trusts
The applicant had been a sergeant in the army. He had misused army property and his uniform to assist in smuggling operations. After serving his sentence he now sought repayment of the money he had earned. Held: His claim failed. The money had been earned by his msuse of his official position, and therefore his employer was entitled to keep the money even though it had been earned unlawfully. The soldier owed a fiduciary duty to the Crown, which was an additional ground on which he lost his claim.
1 Citers

[ Bailii ]

 
 Regina v Page; CMAC 1954 - [1954] 1 QB 170

 
 Adams v War Office; QBD 1955 - [1955] 3 All ER 245; [1955] 1 WLR 1116

 
 Nyali Ltd v Attorney-General; CA 1956 - [1956] 1 QB 1
 
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