Fogg & Anor, R (on the application of) v Secretary of State for Defence [2006] EWCA Civ 1270

Case No C1/2006/0124[2006] EWCA Civ 1270
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon Mr Justice Newman
CO/132/2005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 05 October 2006
Before
SIR ANTHONY CLARKE MRLORD JUSTICE RIXLORD JUSTICE LONGMORE
Between
THE QUEEN ON THE APPLICATION OFClaimants/(1) ROSEMARY FOGGRespondents(2) VALERIE LEDGARDRespondentTHE SECRETARY OF STATE FOR DEFENCEDefendant/
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Michael Pooles QC and Luke Wygas (instructed by Richard Buxton) for ClaimantsNigel Teare QC and David Goldstone (instructed by the Treasury Solicitor) for Defendant
JudgmentSir Anthony Clarke MR:This is the judgment of the court.Introduction
[1]This is an appeal by the Secretary of State for Defence against an order of Newman J dated 13 December 2005 quashing a decision of the Secretary of State made on 12 October 2004 that the steamship STORAA is not capable of designation under the Military Remains Act 1986 (“the Act”). The judge granted permission to appeal but on terms that the Secretary of State pay the respondents’ costs of the appeal regardless of the outcome.

The question

[2]On 3 November 1943 the ship STORAA was sunk by enemy action some eight to ten miles off Hastings. She was torpedoed when the convoy in which she was proceeding was attacked by German E boats. The convoy was headed by HMS WHITSHED and comprised 19 merchant ships including the STORAA. A total of three merchant ships were sunk. The respondents are the daughters of Petty Officer James Varndell RN, who was serving as a gunner on board the STORAA and lost his life when she was sunk. The respondents are and were concerned that diving was being carried out on the wreck, which is in only 37 metres of water, and, being naturally anxious that the wreck be respected as a war grave, sought to protect their father’s remains by asking the Secretary of State to designate the STORAA under the Act. The Secretary of State refused to do so. The judge held that that refusal was unlawful. The question is whether he was correct so to hold.

The Act

[3]The long title to the Act is in these terms:
“An Act to secure the protection from unauthorised interference of the remains of military aircraft and vessels that have crashed, sunk or been stranded and of associated human remains; and for connected purposes.”
As the judge observed, this was the long title to the Bill which remained unamended despite amendments made to the Bill during its passage through Parliament.[4]The Act provides, so far as is relevant, as follows:
“1(2) Subject to the following provisions of this section, the Secretary of State may by order made by statutory instrument – (a) designate as a vessel to which this Act applies any vessel which appears to him to have sunk or been stranded (whether before or after the passing of this Act) while in military service; (b) designate as a controlled site any area (whether in the United Kingdom, in United Kingdom waters or in international waters) which appears to him to contain a place comprising the remains of, or of a substantial part of, an aircraft to which this Act applies or a vessel which has so sunk or been stranded; and the power of the Secretary of State to designate a vessel as a vessel to which this Act applies shall be exercisable irrespective of whether the situation of the remains of the vessel is known. (3) The Secretary of State shall not designate a vessel as a vessel to which this Act applies unless it appears to him – (a) that the vessel sank or was stranded on or after 4th August 1914; and (b) in the case of a vessel which sank or was stranded while in service with, or while being used for the purposes of, any of the armed forces of a country or territory outside the United Kingdom, that remains of the vessel are in United Kingdom waters. …. 9(1) In this Act, except in so far as the context otherwise requires … "controlled site" means any area which is designated as such a site under section 1 above; … "military service" shall be construed in accordance with subsection (2) below; …. (2) For the purposes of this Act an aircraft or vessel shall be regarded as having been in military service at a particular time if at that time it was – (a) in service with, or being used for the purposes of, any of the armed forces of the United Kingdom or any other country or territory; or (b) in the case of an aircraft, being taken from one place to another for delivery into service with any of the armed forces of the United Kingdom. (3) Where a place comprising the remains of, or of a substantial part of, an aircraft or vessel which has crashed, sunk or been stranded while in military service is situated only partly in United Kingdom waters, that place shall be treated for the purposes of this Act as if the part which is situated in United Kingdom waters and the part which is situated in the United Kingdom or in international waters were separate places each of which comprised the remains of a substantial part of the aircraft or vessel.”
By section 2 it is a criminal offence to interfere with a designated vessel or a designated place. (a) designate as a vessel to which this Act applies any vessel which appears to him to have sunk or been stranded (whether before or after the passing of this Act) while in military service; (b) designate as a controlled site any area (whether in the United Kingdom, in United Kingdom waters or in international waters) which appears to him to contain a place comprising the remains of, or of a substantial part of, an aircraft to which this Act applies or a vessel which has so sunk or been stranded; (a) that the vessel sank or was stranded on or after 4th August 1914; and (b) in the case of a vessel which sank or was stranded while in service with, or while being used for the purposes of, any of the armed forces of a country or territory outside the United Kingdom, that remains of the vessel are in United Kingdom waters. … "controlled site" means any area which is designated as such a site under section 1 above; … "military service" shall be construed in accordance with subsection (2) below; …. (a) in service with, or being used for the purposes of, any of the armed forces of the United Kingdom or any other country or territory; or (b) in the case of an aircraft, being taken from one place to another for delivery into service with any of the armed forces of the United Kingdom.

The facts

[5]The parties helpfully agreed a summary of the evidence referred to and the facts found by the judge. We take this account principally from that summary. The STORAA was bound from Southend to Cardiff. She was in convoy CW 221, which was the 221st westbound convoy. The convoy was formed of two columns, STORAA being the fifth ship in the starboard column. As already stated, there were 19 merchant ships, including the STORAA, in the convoy, which was led by HMS WHITSHED.[6]The STORAA was armed. She had a total complement of 36 men (including a pilot) of which four were RN gunners (including Petty Officer Varndell) and three were Army gunners. Between them the gunners manned one twelve pounder gun, four Oerlikons, one Strip Lewis gun and two PAC rockets. Of the 36 men on board, 22 (including the pilot) died. All of the merchant officers and seamen were, as the judge found “serving King and Country”. The judge took that expression from the official scroll commemorating the death of the chief officer, Kjell Arne Brandt. It read:
“K.A. Brandt, Chief Officer Merchant Navy held in honour as one who served King and Country in the world war of 1939-1945 and gave his life to save mankind from tyranny. May his sacrifice help to bring the peace and freedom for which he died.”
[7]On the night of 2/3 November 1943 several German E boats approached the convoy. “Action stations” was sounded and the STORAA opened fire on the E boats. She engaged the E Boats for approximately ten minutes. The E boats drew away but, shortly afterwards, the STORAA was struck on the starboard side amidships by a torpedo launched by one of the E boats causing the vessel to sink bow first some 8-10 miles off the coast of Sussex. 22 members of her crew died, including, not only Petty Officer Varndell and Chief Officer Brandt, but also the master, Jens Peder Pederson.[8]There was conflicting evidence as to the STORAA’s cargo. There was evidence from bills of lading that her cargo was pig iron, steel slabs and steel billets. However, in a statement dated 24 November 1943, the third officer described the cargo as consisting of “parts of tank bodies” and there was also evidence based upon a recent dive that the cargo included vehicle parts including caterpillar tracks.[9]A naval officer, called the Senior Officer of the Escort (or SOE), was responsible for the safety of the convoy from enemy action but, subject to his orders relating to the defence of the convoy, a Commodore was in overall command of the vessels in the convoy. He was invariably a retired naval officer. The master of STORAA was subject to the 1866 Naval Discipline Act, section 31 of which obliges the master to obey “the Commanding Officer of the convoy” in all matters relating to the navigation or security of the convoy and to take such precautions for avoiding the Enemy as may be directed by the Commanding Officer.[10]The STORAA was owned by the Ministry of War Transport (MOWT). MOWT had all the functions of the Ministry of Transport and the Ministry of Shipping and had power to requisition ships, to regulate and control the movement of ships, to regulate the trade in which ships were employed and to act as the owning authority for ships under Government control. An officer within MOWT, called the Director of Sea Transport, had power to allocate ships to civilian ministries or to the armed services. In allocating ships to the armed services his functions included conversion of ships for service as troopships or hospital ships, cooperation with the armed services on the requirements for the movement of troops and cargo, co-operation with the Admiralty on convoy escorts and naval control and dealing with the planning of cargo movements and port handling facilities for ammunition, aircraft and tanks. The Admiralty Trade Division decided whether ships travelled in convoy and the Defensively Equipped Merchant Ships Section had responsibility for arming merchant ships. Although the judge referred to both the Admiralty Trade Division and the Defensively Equipped Merchant Ships Section as being “of the MOWT”, this does not appear to be correct. They were as we understand it divisions of the Admiralty.

Discussion

[11]The Secretary of State said that it did not appear to him that the STORAA sank “while in military service” within the meaning of section 9(2) of the Act. The first refusal letter was dated 25 May 2000, the second was dated 9 March 2004 and the third was dated 12 October 2004. They are extensively quoted by the judge in paragraphs 23, 26 and 29 of the judgment. It is not necessary for us to quote them in order to resolve the issues in this appeal.[12]So far as is relevant in the present case, the following is common ground: i) by section 1(2)(a) the Secretary of State only has power to designate as a vessel to which the Act applies a vessel which appears to him to have sunk while in military service; ii) by section 1(2)(b) he only has power to designate as a controlled site an area in which such a vessel has sunk; iii) by section 9(1), unless the context otherwise requires, “military service” must be construed in accordance with section 9(2); iv) the context does not otherwise require; and v) by section 9(2), in order to be “in military service” at a particular time, the vessel must at that time either be “in service with … any of the armed forces of the United Kingdom” or be “being used … for the purposes of any of the armed forces of the United Kingdom”.[13]It is important to note that in each case the relevant question, namely whether the vessel was in service with, or being used for the purposes of, the armed forces of the United Kingdom, must be answered by reference to a particular time. It is not in dispute that in this case the particular time was the time the STORAA was sunk. I take each question in turn. Was the STORAA in service with the armed forces of the United Kingdom when she was sunk?[14]This was the question for the Secretary of State because section 1(2) conferred a power of designation on the Secretary of State if it appeared to him that the STORAA was “in military service” at the time she was sunk. It is not therefore the question for the court. However, it is common ground that the Secretary of State must act lawfully and that he must not misdirect himself in law or take account of irrelevant considerations or fail to take account of relevant considerations. There is an issue of law between the parties as to the true construction of the Act.[15]In the Secretary of State’s skeleton argument lodged for this appeal it is said that the central question which arises in the appeal is whether merchant vessels which were lost during World War II while proceeding in convoy qualify as military vessels and are thus eligible for designation under the Act. It is said that the judge held that such vessels are eligible for designation and thus quashed the Secretary of State’s decision to the contrary. The Secretary of State further says that this question is of general importance because, if all vessels sunk while in convoy are eligible, the scope of the Act is much widened. While the decision in this appeal is likely to be of some importance, we accept the submission made on behalf of the respondents that the decision of the judge does not go so far as to hold that all vessels lost while in a convoy were in military service (as defined in the Act) at the time they were lost. That is because of the point already made, namely that the question must be answered at the particular time of the sinking.[16]The essential point in issue between the parties as identified by Mr Teare on behalf of the Secretary of State is whether the words “in service with … any of the armed forces” denote vessels which are at the disposition of the armed forces in the sense that they can be directed to perform such services as the armed forces require, as the Secretary of State contends, or whether the words are to be construed as applying to all vessels that at the time of their loss were serving “with” the armed forces in the sense of engaging in an activity or performing a function jointly with the armed forces. Emphasis is placed on the word “service”. As Mr Teare puts it, the Secretary of State has treated the words “in service … with the armed forces” as directing attention to the status of the relevant vessel at the time of the loss. He gives as an example a serving military vessel or a vessel which, by reason of having been requisitioned or taken on charter, was at the disposition of the armed forces.[17]There is, in our view, no doubt that such a vessel would be included. The question is whether the definition is wider. The judge held that it is. He held that attention should be paid to the function or activity of the vessel at the relevant time. Thus he said in paragraphs 85 and 87 of his judgment:
“85. …. The word “with” in section 9(2) contemplates a vessel, not being a naval vessel, or serving as a naval vessel being engaged in an activity with a naval vessel. That this is the case is also supported by the category of military service contemplated by the expression, “being used for the purposes of the armed services” which is the alternative basis capable of giving rise to designation. The concept of the “use” to which a vessel is being put at a particular time does not require a change of status to occur nor does joint service in an operation or activity with the armed services necessarily involve a change of status. The expression “in service with” the armed forces, as opposed to requiring concentration to be placed on the use and whether its use is for the purposes of the armed forces, invites attention to be paid to the activity of the vessel at the material time and the extent to which the activity is being undertaken “with the armed forces”. … 87. Whether or not a vessel was “in service with the armed forces” at the time it sank will depend upon what it was doing (its function or activity) at the relevant time and whether, on the facts, it was engaging in that activity or performing that function jointly with any of the armed forces. If one commences with the characterisation of the activities of the vessel then, if the coincidence of function and proximity of the activity of the naval vessel and the merchant vessel are so close as to appear to be actions taken in unity, the merchant vessel will be “in service with” the naval vessel. Whether the respective naval and merchant vessels were acting together to perform a function or to engage in an activity will not necessarily depend upon each being required to do the same thing, because vessels acting under directions, for example, from separate organs of government, could be engaged together under one command in an activity, but each have different individual functions to perform to further that activity. As a member of a convoy, the STORAA and her cargo required armed protection. HMS Whitshead was obliged by law to give armed protection to the STORAA and its cargo. The STORAA was obliged by law to protect itself, its cargo and the convoy by use of armaments. Each provided armed protection for the cargo and the convoy.”
[18]We recognise that the expression “in service with” could be given the narrower meaning suggested on behalf of the Secretary of State. The question is whether it should be given that meaning when construed in the context of the Act. We have reached the conclusion that, when construed in its context and having regard to the purpose of the statute, the wider construction adopted by the judge is to be preferred. The statutory definition focuses on the particular time of the relevant event, which in this case was when the STORAA was sunk. Moreover, the definition does not say that in order to be in military service a vessel has to have been taken over by the Navy or be in service as a military vessel. It seems to us that the correct approach is to identify the circumstances which existed at the time and ask the broad question whether at that time the STORAA was in service with any of the armed forces.[19]Mr Teare submits that the view of “in service with” adopted by the judge would require an investigation of whether a white ensign vessel was performing its activities with any of the armed forces. We do not, however, think that that is so. It appears to us that, save perhaps in very exceptional circumstances, a naval vessel would be in service with the armed forces, whatever she was doing at the time. The status of the vessel is plainly of considerable importance but it is only part of the picture.[20]Applying the approach identified above in the present case and asking the broad question whether when she was sunk by the German E boat the STORAA was in service with any of the armed forces, it appears to us that the answer is that she was at least capable of being regarded as in service with the armed forces. We put the point in that way because, as stated above, we recognise that ultimately the question is one for the Secretary of State, the question being whether it appears to him that the STORAA was in service with the armed forces when she was sunk. In answering the question we do not think that we should focus only on the relationship of the role of the STORAA with that of HMS WHITSHED. As the judge in our opinion correctly appreciated, the relevant circumstances encompass a broader picture.[21]We recognise that in order to be in service with any of the armed forces, the vessel would have to be at least in some respects under their control. However, as the short account of the facts set out above shows, the STORAA was to a significant extent under the control of the Admiralty or of the Royal Navy.[22]Section 31 of the Naval Discipline Act 1866, to which we have already referred, and which was in force in 1943 and governed the STORAA’s participation in the convoy, provides:
“31. Every Master or other Officer in Command of any Merchant or other Vessel under the Convoy of any Ship of Her Majesty shall obey the Commanding Officer thereof in all Matters relating to the Navigation or Security of the Convoy, and shall take such Precautions for avoiding the Enemy as may be directed by such Commanding Officer; and if he shall fail to obey shall Directions, such Commanding Officer may compel Obedience by Force of Arms, without being liable for any Loss of Life or of Property that may result from his using such Force.”
[23]The judge said in paragraph 58 that it must follow that 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: i) obliged to obey the Commanding Officer of Her Majesty’s vessel in relation to matters relating to the navigation or security of the convoy; ii) obliged to take such precautions for avoiding the enemy as may be directed by such Commanding Officer; and iii) is subject to compulsion to obey by force or arms without liability for loss of life or property which may result from forceful compulsion. We agree.[24]The judge also referred to section 30 of the 1866 Act, which imposed an express duty on “the Officers of all Ships of Her Majesty appointed for the Convoy and Protection of any Ships or Vessels” to “defend the Ships and Goods under his Convoy”. Thus the role of HMS WHITSHED was to defend and protect the convoy including the STORAA and it was the duty of the master of the STORAA to obey her commanding officer “in all Matters relating to the Navigation or Security of the Convoy”. Moreover, there can be no doubt that the sole reason for both the guns themselves and the naval and army gunners being on the STORAA was to protect both the STORAA herself and the other vessels in the convoy from enemy action. The gunners remained service personnel and, although under the command of the master, remained subject to naval discipline under the 1866 Act. They were not to be employed in the ordinary duties of the ship except in an emergency. As already stated, the master was subject to section 31 of that Act.[25]Although the master was of course responsible for the safety of his vessel, the SOE, who (as stated above) was a naval officer, was responsible for the safety of the convoy from enemy action and the Commodore, who (as also stated above) was normally a retired naval officer and a member of the RNR, was in overall command of the vessels in the convoy. As the judge observed in paragraph 72, the Commodore’s responsibilities included the safe navigation of the convoy, the internal organisation and cruising order of the convoy, the readiness for action and fighting efficiency of the vessels and, in consultation with the SOE, arranging firing practice.[26]The judge asked himself the question why was the STORAA in the position she was when she was attacked and sunk. He answered it thus in paragraph 62: “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. It was following a route which had been determined by the armed forces (the Admiralty) and “in all matters relating to the navigation or security of the convoy” the Master of the STORAA was obliged to obey all directions given by the Admiralty. It can be noted that the directions which had to be obeyed were not limited to the protection of the STORAA but extended to “all matters relating to the navigation or security of the convoy”.[27]In these circumstances the judge correctly rejected the assertion in the decision letter of 9 March 2004 that the master of the STORAA was not subject to military jurisdiction and correctly held that at the relevant time the “use and disposition” of the vessel was controlled by the Admiralty, at least to the extent that the Admiralty Trade Division decided whether vessels like the STORAA travelled in convoy. Further, the responsibility for arming her lay with the Defensively Equipped Merchant Ships Section of the Admiralty. That responsibility normally involved the fixing of armaments, paravane equipment, darkening ship arrangements, degaussing and other defensive equipment. The training and supply of service personnel and the provision of special training courses for Merchant Navy personnel were also the responsibility of this Section.[28]In answering the question whether the STORAA was in service with any of the armed forces, it also seems to us to be relevant to take account of the events before she was sunk. The judge set out the statement of the third officer, which was dated 24 November 1943, in full. It is worth quoting the passage from it in which Mr Knudsen described the events just before the STORAA was struck. He noted that degaussing was on and described the convoy, which left Southend on 2 November. He added:
“2. … The convoy proceeded without incident until 0010 on the 3rd, when the Escort commenced firing snowflakes, and shortly afterwards I observed several E-Boats, about half a mile away, approaching the convoy from the port quarter. "Action stations” was sounded, and we opened fire on the E-Boats with the Oerlikon guns. At approximately 0020 the E-Boats departed and the firing ceased. I then left the Bridge and went to my cabin. 3. A quarter of an hour later, at 0035 on the 3rd November, in position 7' E. from Beachy Head, steering a W’ly course at 6 knots, we were struck by one torpedo underneath the bridge, amidships, on the starboard side. The weather was fine, dark with good visibility; there was a slight sea and S.W. wind, force 2/3. 4. There was a dull explosion and the vessel shook violently. No-one reported seeing a flash or a column of water being thrown up, and no-one saw the E-Boat that fired this torpedo. I put on my lifebelt, and hastened forward to the boat deck, but owing to the debris blocking the door of the alleyway, I was unable to get out. I then started to run aft, and had just reached the door at the other end of the alleyway, when the vessel sank, bow first.”
[29]We take the reference to the “Escort” to be a reference to HMS WHITSHED. That extract shows that both HMS WHITSHED and the STORAA took part in the attempts to fight off the E boats. It also demonstrates that firing on the E boats and the subsequent firing of the torpedo which sank the STORAA were part of the same military operation, in which both the naval vessel and the STORAA (and perhaps other vessels in the convoy) were engaged. It seems a reasonable inference that the attempts to fight off the E boats were made, not just on behalf of the STORAA, but on behalf of the other vessels in the convoy and indeed of HMS WHITSHED. These facts seem to us to permit the conclusion that the STORAA was in service with the Royal Navy, if that expression is given the wider meaning adopted by the judge, which we prefer to the narrower construction advanced on behalf of the Secretary of State.[30]In reaching this conclusion, we have not overlooked the fact that it was not the Admiralty or the armed forces which directed the vessel to undertake the voyage from Southend to Cardiff. As we understand it that was MOWT. Further, although there is doubt about it, we have assumed for the purposes of this judgment, as we think the judge did, that the vessel was not carrying tanks or tank parts for the military. These are of course factors to take into account but, for the reasons set out above, there is in our judgment, ample evidence to support the conclusion that the vessel was in service with the armed forces. They had control over many aspects of the voyage because of the importance to the war effort of defending, not just the STORAA, but also the convoy; hence the role of the SOE, the Commodore, HMS WHITSHED, the arms on board the STORAA and the naval and army gunners engaged to use them. Moreover, at the time the vessel was sunk she was, or had just been, engaged in using her guns against the E boats, one of which sank her.[31]We do not think that this is too broad an approach to the concept of being “in service with the armed forces”. Mr Teare contrasts the expressions “in service with” and “being used for the purposes of” any of the armed services in section 9(2) of the Act and submits that the contrast points to the conclusion that “in service with” is referring to the status of the vessel in the narrow sense referred to above. We do not agree. We see no reason why it should not be given a wider meaning, so that whether a vessel was “in service with” any of the armed forces will depend upon all the circumstances of the case, including in particular the degree of control which the armed forces had over her at the particular time.[32]Like the judge, we were referred to a number of cases. However, none of them was on the construction of the Act and none of them seems to us to be of any real assistance in identifying the meaning of section 9(2). They were in the main concerned with the division of liability between hull underwriters and war risk underwriters. A typical provision provided for war risk underwriters (but not hull underwriters) to be liable for “all consequences of hostilities or warlike operations by or against the King’s enemies”. The cases involved a consideration of what was meant by “warlike operations” and in what circumstances the loss was proximately caused by warlike operations.[33]There is support for the proposition that the mere taking part in a convoy as a merchant vessel carrying a commercial cargo did not amount to a warlike operation: see eg Britain Steamship Co v The King [1921] 1 AC 99, per Lord Atkinson at page 118. In the Court of Appeal Atkin LJ likened the escorting vessel in a convoy to the shepherd and the merchant vessels in the convoy to the sheep. This can be seen from this passage in the speech of Lord Atkinson at pages 118 to 119:
“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; and as far as circumstances permit is as peaceful in nature as would be their enterprises in the time of peace.”
[34]Those expressions of opinion are not in our view directly applicable to the facts of this case. Given the fact that the STORAA was armed and that her guns were manned by military personnel, it is not apt to describe the STORAA as simply a sheep or to describe her role as “not at all combative”. As the circumstances of the day in question showed, she was combative and, as we read section 31 of the 1866 Act, it was her master’s duty to obey the commanding officer of HMS WHITSHED in all matters relating to the security of the convoy, not just the STORAA. As we see it, that would involve deploying the guns on board her against the enemy in order to protect the vessels in the convoy. We note that Lord Atkinson himself said at page 114: Of course if a merchantman chose to take combative action, such as attempting to ram an enemy submarine, that action would, so long as it lasted, be a “warlike operation”.[35]The judge expressed the view in paragraph 82, in our judgment correctly, that the loss of the STORAA would have been held to be a loss consequent upon a “warlike operation”. By way of example he quoted this sentence from the judgment of Warrington LJ in the Court of Appeal in the Britain Steamship case:
“Of course the sailing with convoy may easily assume the character of a warlike operation; if the convoy were actually attacked or if an attack were impending or immediately apprehended then from that moment the operations might well become warlike operations”
. We agree.[36]The approach which we prefer seems to us to be consistent with the underlying policy of the Act and to avoid too many anomalies. For example, Mr Pooles submits on behalf of the respondents that, if the Secretary of State’s approach were correct, the protection of the remains of serving Royal Navy sailors, such as Petty Officer Varndell, would depend upon whether he was manning a gun on board a merchant vessel like the STORAA or whether he was doing so on board a destroyer when the relevant vessel was sunk. As the judge put it in paragraph 4 of his judgment, each of the Royal Naval and Army gunners was on war service, a member of the armed services and thus on military service, but, unless the STORAA was in “military service”, protection for their remains will not be available in accordance with the Act. We agree with Mr Pooles that that would be a curious and, perhaps, capricious result which Parliament is not likely to have intended.[37]These are very similar considerations to those identified by the judge in paragraphs 88 to 91 of his judgment. In paragraph 88 he identified the underlying purpose of the legislation, which was to provide for the sanctity of war graves, that is of the remains of those who died as a result of the sinking of their vessel by enemy action. He recognised that not every such war grave is included but stressed the importance of avoiding anomalies. Thus he said in paragraphs 89 to 91:
“89. The scope for the perceived uneven and haphazard operation of the Act, if the Secretary of State is correct in his interpretation, can be exemplified by assuming certain alterations to the events under scrutiny. Had the torpedo which sank the STORAA and killed Petty Officer Varndell struck HMS Whitshead, its sinking and consequent loss of life would have given rise to a paradigm circumstance of a vessel qualifying for designation under the Act. The event, had it occurred, would have taken place in the course of the very same convoy operation in which the STORAA sank, but would have led to a different legal consequence. Further, and only by way of example, had the same coaster which picked up survivors from the STORAA picked up survivors from the Whitshead and proceeded to Newhaven, but been successfully torpedoed, with the loss of life of the Royal Naval “survivors” from Whitshead, their remains would have qualified for protection had they died with the Whitshead, but their death on board the coaster would not qualify for protection. 90. Given these considerations, I have no doubt that 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 (section 31 Naval Discipline Act 1866) 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. 91. If, as a consequence of being in convoy, a vessel sinks with loss of life, it will be necessary to consider whether it is possible to detach the activity of the vessel from the activity of the protecting naval vessel to any degree that could mean the vessels were not in service with each other. Where the merchant vessel has engaged in belligerent action against the enemy and is subsequently sunk under belligerent action from the enemy this will be a factor to be considered.” We agree.[38]The judge referred to a number of passages in Hansard upon which reliance was placed before him by both sides. It is, we think, doubtful (to put it no higher) whether such reference is permissible and we have reached our conclusions without reference to it and by applying ordinary canons of construction. We note in this regard that in paragraph 14 the judge expressed a doubt whether a sufficient ambiguity exists to justify reference to the Parliamentary material as an aid to interpretation of the Act. It thus appears that, although he referred to the material, his construction of the Act did not depend upon it. Nor does ours.[39]In all the circumstances we agree with the judge that the Secretary of State applied too narrow a construction of the Act when refusing the respondents’ request. As a result he did not approach the matter in the broad way suggested above and thus did not take into account all the relevant circumstances. For example he paid no regard to section 31 of the 1866 Act. It follows that, in our judgment, the judge was correct to quash the order of the Secretary of State and to remit the matter to him for further consideration. Was the STORAA being used for the purposes of any of the armed forces when she was sunk?[40]Again this was the question for the Secretary of State and is not the question for the court. As we read his judgment, the judge concluded that the Secretary of State had not taken all relevant circumstances into account under this head. It appears to us that, as in relation to the first question, the second question should be answered by reference to all the circumstances of the case. They include a consideration of the part played by the armed forces with regard to the convoy and to the events which occurred.[41]The judge correctly held that more requires to be shown than that the use of the vessel furthered the war effort generally. The nature of the cargo is potentially relevant to the correct answer to this question but, for the reasons given above, the present evidence is insufficiently clear to assist the respondents in saying that the vessel was being used by the armed forces because she was carrying, say, tanks. However, the essential basis of the judge’s conclusion was that the Secretary of State did not take account of the role played by the Admiralty in connection with the convoy and did not take sufficient account of the fact that the STORAA was armed and manned by military gunners (as discussed in detail above), not just for her own safety but for the safety of the convoy, for which the Royal Navy was responsible. In short, the Secretary of State did not consider the question as broadly as he should have done.[42]The judge made the first of those points in paragraph 99 and then expressed his conclusions thus in paragraphs 100 and 101: “100. …. The STORAA was obliged to travel into one of the most dangerous sea passages off the coast of England and to face the known risk of being attacked by the enemy in an established seat of wartime operations. If threatened with attack, by reason of being armed, it was required to engage in combat with the enemy for its own protection and for the benefit of the convoy. These characteristics and features of the voyage cannot be ignored, with consideration being confined to the ownership of the vessel and the destination of the cargo. They gave rise to the question whether there was a purpose being served by the use of the STORAA which was in common with a purpose being served by HMS Whitshed and the needs and purposes of the Admiralty. 101. To these significant features which arise on the facts, the response of the Secretary of State has been that:(1) voyages in convoy were common to many merchant vessels and arming them was a general feature of coastal convoys;(2) if the Act is interpreted so as to include merchant vessels, sunk whilst travelling in convoy, there will be an administrative burden upon the Secretary of State which Parliament intended to avoid. 102. I am unimpressed by these points. If merchant vessels sank with loss of life in “military service” then the vessels and the remains of those who died are capable of being protected by designation. There is nothing in the Act which supports the class of vessels which qualify being interpreted narrowly so as not to cause an administrative burden to the State. Indeed, having regard to the aim and object of the Act and the importance of its purpose, namely according respect to the dead and protecting the sanctity of human remains, being considerations at the forefront of the values of a civilised society, such a qualification, unless clearly expressed, can have no place.” (1) voyages in convoy were common to many merchant vessels and arming them was a general feature of coastal convoys; (2) if the Act is interpreted so as to include merchant vessels, sunk whilst travelling in convoy, there will be an administrative burden upon the Secretary of State which Parliament intended to avoid.[43]We have reached the conclusion that the judge was justified in reaching these conclusions. As we see it, the Secretary of State did not consider the question as broadly as he should have done. The whole of the role of the Admiralty and the Royal Navy, as discussed above, is relevant to the question whether the STORAA was being used for the purposes of any of the armed forces when she was sunk. In these circumstances we dismiss the appeal under this head too.[44]We add by way of postscript, as indeed the judge did in paragraphs 104 to 106, that Mr Short, who bought the wreck of the STORAA about a year before the Act was passed, addressed the court shortly. He again made the point to us, as he had to the judge, that the respondents have identified the wrong vessel. It is no doubt open to him to make whatever representations are appropriate to the Secretary of State when he reconsiders the whole matter.