Rosemary Fogg & Anor, R (on the application of) v The Secretary Of State For Defence & Anor [2005] EWHC 2888 (Admin)

[2005] EWHC 2888 (Admin)Case No CO/132/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 th December 2005
Before
MR JUSTICE NEWMAN
Between
The Queen on the application ofClaimants(1) ROSEMARY FOGGClaimant(2) VALERIE LEDGARDClaimantTHE SECRETARY OF STATE FOR DEFENCEDefendantJOHN SHORTInterested Party
ELEANOR SHARPSTON QC, PETER GIBBS and ANGELA PATRICK(instructed by Richard Buxton) for ClaimantsDAVID GOLDSTONE and MARIE DEMETRIOU(instructed by The Treasury Solicitor) for DefendantThe Interested Party appeared in person for in personHearing Hearing dates: 26 th and 27 th October 2005
Judgment
[1]The Protection of Military Remains Act, 1986 (“the Act”) is, according to its title, “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; …” The title can be taken as a clear guide to the general objectives of the enactment (see Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 647D). Despite amendments made in the passage of the Bill (see later), it was not amended.[2]The claimants in this application for judicial review are the daughters of Petty Officer James Varndell RN, deceased. He died on war service on 3rd November 1943 when the vessel in which he was serving was sunk by enemy action some 8-10 miles off the coast from Hastings, Sussex. The vessel, the SS STORAA (“the STORAA”), was torpedoed when it, along with the convoy in which it was travelling, was attacked by German E-boats. The convoy, headed by HMS Whitshead, comprised (including the STORAA) some nineteen other merchant ships. A total of three merchant ships were sunk.[3]The STORAA was armed. Petty Officer James Varndell was serving as a gunner. There were four Royal Naval gunners and three Army gunners on board, manning one 12 pounder gun, four Oerlikons, one Strip Lewis gun and two P.A.C. rockets. The remainder of the crew comprised officers and men of the Merchant Navy and the pilot, who had been picked up at Dover. Out of a total complement of thirty six, twenty two (including the pilot) died. Among the survivors was the Third Officer Hendrik Bodker Knudsen (aged 22). The Master, Jens Peder Pedersen, aged 51, was among the dead, as was the Chief Officer, First Mate, Kjell Arne Brandt. The official scroll commemorating his death reads:
“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.”
[4]All of the merchant officers and seamen were “serving King and Country”. 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. The claimants seek to protect their father’s remains and have requested the Secretary of State for Defence to designate and protect the wreck of the STORAA, but he has refused to do so on the ground that the vessel does not qualify for designation. He has asserted that it does not appear to him that it sunk “while in military service” (section 1(2)(a)). The Act contains an interpretative provision. By section 9(2):
“…. 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….” but he has concluded, after consideration of the meaning which should be attributed to section 9(2)(a), that it does not appear to him that the STORAA was “in military service”
. For convenience I shall, from time to time, refer to the expression “in service with”, as the first part of the definition and “being used for the purposes of the armed forces …” as the second part of the definition.[5]The case raises a number of important and sensitive issues having consequences which are not limited to the interests of the claimants. The remains of the deceased merchant seamen are, if the Secretary of State is right, not eligible for protection. The Merchant Navy, including many individuals who saw active service in convoys, feel strongly that the role played by the service in the midst of armed conflict in the second world war has never been properly recognised. The facts of this case demonstrate that uncertainty exists as to whether the remains of those who died, going down with their vessel, when participating in armed conflict with the enemy in time of war will qualify for protection. It is submitted by the claimants that such a conclusion could only be reached by applying an erroneously and unduly narrow interpretation to the Act.[6]The court has little difficulty in understanding these viewpoints and recognises the depths of feeling to which these events give rise, but its task is to ascertain the meaning of the Act and to decide whether the meaning given by the Secretary of State to the Act is in accordance with the law. It is apparent that the Act was passed because of growing public concern that advances in diving technology and its popularity as a pursuit put at risk the sanctity of the human remains of those who had died defending their country in war. The Act provides that vessels and human remains can be respected, by establishing a designation process which will result in the last resting place of the deceased being regarded as though it was a war grave.[7]A year before the Act was passed, the wreck of the STORAA was sold to Mr John Short, the interested party in this action. He purchased it for salvage purposes at a consideration of £150. He now claims his property rights could be unlawfully interfered with if the vessel is designated. At the material time he ran two small salvage companies, but shortly after the purchase they ceased to operate. According to the claimants, there has nevertheless been diving activity in the vicinity of the vessel, which lies at a relatively shallow depth of thirty metres. Understandably these events have aggravated the claimants’ conviction that a lack of respect has been shown for their father’s remains which, in the absence of protection being accorded, will continue.

The Bill and the Act

[8]I shall commence my review with a brief reference to HANSARD because both sides have referred to the parliamentary debates.[9]The Bill was introduced as a private member’s Bill on 31st January 1986 by Mr Michael Mates, the member for Hampshire, East. The scheme for designation, as it appears in the Act, emerged by amendment in the House of Lords. Lord Trefgarne (the Minister of State for Defence Support) informed the House, on the 3rd June 1986: “The Bill as originally drafted makes it an offence to interfere with all aircraft and vessels that crashed, sank or were stranded while in the service of the armed forces unless they have been removed from the protection of the Bill by a licence … Since their location [being military aircraft lost without trace] and, in the case of foreign military aircraft, their identity is not known, they cannot be individually designated for protection. There are similar arguments for having blanket protection for military vessels ….. The difficulty is that during the two world wars many merchant ships and fishing vessels were used for military purposes. Whether a particular merchant vessel could be covered by the Clause 1 definition of “in service as [a] vessel of the naval, military or air forces”, is a matter of legal interpretation and would depend upon the terms on which that vessel had been placed at the disposal of those forces. The information is not for the most part readily available. In some cases it may no longer exist. My department would find it extremely difficult, and often impossible, to advise divers – amateur or professional – exactly which wrecks were protected by the Act. I am sure that noble Lords would agree that it would be regrettable if the enjoyment of thousands of amateur divers was spoiled by the burden of this uncertainty. Since we wish to remove any uncertainty about the identity of vessels covered by the Bill, we feel that the Bill should apply only to those vessels which have been designated by name or other description in an order made by statutory instrument”.[10]Section 1 of the Bill was therefore amended to its present statutory form and subsequently an amendment to introduce what is now section 9 was introduced without debate (see Hansard, 3rd June 1986, page 786).[11]In the course of responding to points about the effectiveness of the proposed licence system (Hansard, page 775), Lord Trefgarne observed:
“The purpose of the Bill is to protect the sanctity of war graves. It is therefore in our interests to ensure that British firms conduct this work under the protection of a licence …”
[12]The second reading of the Bill was introduced in the House of Lords by Lord Sandford on 3rd February 1986. Lord Parry, who declared an interest in a company called Seasalv Marine Limited, observed (Hansard, page 814):
“… I have met no one who does not agree with the basic principle of this Bill which was originally to provide the sanctity about which the noble Lord, Lord Sandford, spoke for the remains of those who sacrificed themselves in the service of the country or who had been killed at sea. There has never been an attempt on anyone’s part to question the basis of the Bill”
. He then went on to point out that “… this simple wish … was threatening very real and special interests”.[13]Lord Trefgarne (page 823) referred to discussions with Lord Parry: “The noble Lord, Lord Parry, asked a number of questions. He asked, first, whether the protection under the Bill would be limited to White Ensign vessels, to British vessels. The answer to that is, no. The main purpose of the Bill is to protect the last resting place of servicemen who went down with their aircraft and vessels; and they of course include support vessels such as Royal Fleet Auxiliaries and merchant vessels taken over for military purposes”.[14]I am unable to derive any assistance from this material in interpreting sections 1 and 9 of the Act because the detail of the argument which has been advanced goes beyond the considerations addressed in the debates. Indeed I doubt that a sufficient ambiguity exists to justify resort to the material. That said, the debates do demonstrate that:(1) the scheme of designation can be seen to have been driven by an acknowledgement that blanket protection could give rise to practical difficulties and administrative cost and, as such;(2) have unfair consequences upon the activities of salvage and diving operations.[15]The Act applies to any aircraft which has crashed “while in military service” (section 1(1)) and any vessel which “appears” to the Secretary of State to have “sunk or been stranded … while in military service” (section 2(a)). Section 9(1) (the interpretation section) provides that “military service shall be construed in accordance with subsection 2 below”.[16]Section 9(2) provides:
“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….”
Two points can be noted. First it is clear from the use of the word “shall” in section 9(1) and the use of the word “shall” in section 9(2) that it was intended that any other meaning was to be excluded. There is no call, therefore, to attribute an ordinary meaning to the words in section 1, namely “in military service”. Secondly, it is to the service or use of the vessel at the particular time of its sinking or stranding to which attention has to be paid in determining whether a vessel was “in military service”.[17]The Act does not expressly contemplate a system whereby interested parties can apply for designation. It applies according to its terms to any qualifying vessel from the date when the Act came into force. Nevertheless section 1(2) confers a discretion upon the Secretary of State to act “… by order made by statutory instrument … to designate as a vessel … any vessel which appears to him to have sunk or been stranded …”. He has so acted (see S.I. 2002 No. 1761). He has designated six vessels, five of Her Majesty’s ships, which sank between 1939-41, and the RFA Sir Galahad which sank in the Falklands campaign on or about 8th June 1982. The Sir Galahad was in service as a Royal Fleet Auxiliary (RFA) vessel; it was not a commissioned vessel and those who died comprised a mixed crew of merchant and Royal Naval men. The basis upon which it appeared to qualify for designation has not been stated. The other five vessels obviously qualified for designation. As the Parliamentary debates show, the difficulties surrounding designation of Her Majesty’s vessels will arise, if at all, in ascertaining their location.

The broad position of the parties

[18]I must analyse the Secretary of State’s reasons for his decision in connection with the STORAA in detail but, unsurprisingly, they and the submissions of counsel on his behalf would appear to have been strongly influenced by the general law in connection with the armed forces and, in particular, the Navy. By way of example, there is a similarity between the Secretary of State’s reasoning and the definition of Her Majesty’s ships in section 132(1) of the Naval Discipline Act 1957. I do not doubt that the definition provides a clear starting point for identifying vessels which will qualify for designation under the Act, but the issue I have to decide is more complex. On the assumption that section 9 of the Act contemplates vessels outside the definition, the issue is, where does the Act draw the line? Section 132(1) of the Naval Discipline Act 1957 provides: “In this Act “Her Majesty’s ships” means commissioned ships flying the white ensign, and “Her Majesty’s vessels” means ships and vessels, other than Her Majesty’s ships, engaged in the naval service of Her Majesty, whether belonging to Her Majesty or not; but “Her Majesty’s ships” and “Her Majesty’s vessels” do not include ships or vessels of a Commonwealth country or maintained by a colony, other than ships or vessels placed at the disposal of [the Defence Council] or placed at the disposal of Her Majesty for general service in the Royal Navy”.[19]This case has demonstrated that the question whether a “vessel” was “in military service” within the meaning of the Act is capable of giving rise to a detailed inquiry, involving significant expense and time. It has not been suggested that requests for designation cannot be made and thus give rise to resource implications, but it has been suggested that the claimants’ case, if correct in law, will give rise to administrative burdens.[20]For the claimants, it is said the Secretary of State must consider all the relevant facts when he decides whether the factual situation prevailing at the time a vessel sank is within or without the meaning of “in military service”. This necessarily requires him to correctly interpret the meaning of the expression and then to consider all the relevant facts available to him. It is the claimants’ primary case that the Secretary of State has interpreted section 9(2)(a) too narrowly and/or been irrational in his assessment of the relevant facts available to him.[21]Counsel for the Secretary of State has emphasised that the ordinary meaning of an English word is not a question of law (see Lord Reid in Cozens v Brutus [1973] AC 854.861) and that the words in section 9(2)(a) are not used other than in their ordinary meaning. He submits, therefore, that the Act requires the Secretary of State to find facts and then to decide upon which side of the conceptual line the facts fall. This, it is submitted, is a question of fact, not of law and is not reviewable unless it falls outside the bounds of reasonable judgment (see Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929).

The Secretary of State’s Reasons

[22]In order that the true character and full range of the arguments can be understood, I need to record, at this stage, the Secretary of State’s reasons.[23]The first request for designation of the STORAA was made in April 2000. Dr Peter Marsden, a director of Shipwreck Heritage Centre (a registered charity), sent a reasoned letter, with enclosed documents, laying out a series of facts and requested designation. By letter dated 25th May 2000 from the Naval Staff Directorate of the Ministry of Defence, designation was refused for the following reasons:
“I am advised that for the Protection of Military Remains Act 1986 to apply the vessel must have sunk while in military service (s1(2)(a)). Military service is defined under s9(2)(a) for a vessel as: “In service with, or being used for the purpose of, any of the armed forces of the United Kingdom or any other country or territory”
. At the time of her loss, the Ministry of War Transport (MOWT) owned the SS STORAA. I believe you are in receipt of correspondence supporting this from DETR (the government department with responsibility for former MWT war wreck matters). The STORAA had not been taken up by the Admiralty nor was she in the service with the armed forces or used for purposes of those forces. The SS STORAA may have been carrying supplies necessary for war work, but this would not have meant that she was in military service under the above definition. The crew and her purpose were mercantile. At the time of her loss SS STORAA was a merchant vessel. As such the wreck of the SS STORAA does not meet the criteria, mentioned above, for designation under the Protection of Military Remains Act 1986.”[24]In a letter to Dr Marsden from the Naval Historical Branch, Ministry of Defence, earlier in 2000, when he was in the process of gathering information to support the request, the following was stated:
“As she was owned by the MOWT she is not regarded as a Royal Navy ship but a Merchant one. The department is primarily concerned with Royal Navy ships and has only a passing interest in Merchant Ships”
. Then, having referred to the earlier history of the STORAA between launch (1918) and 1943, the letter continued: “She was on her way from London and Southend for Bristol as part of a Channel Convoy CW221, which was attacked on 2nd November 1943 by German E-boats of the 5th MTB Flotilla under Cdr Klug and sank after being torpedoed by the S138 … At the time of her loss she was carrying a cargo of military tanks and had a crew of 28 of whom 17 were lost, and 8 passengers of whom 4 were lost. Those eight “passengers” were, in fact, 7 gunners and 1 Channel Pilot. Three of the gunners and the pilot were lost. The MCA [The Maritime & Coastguard Agency] may be able to tell you about the ship and the Merchant Seamen who died. Unfortunately, it may not be easy to discover the names of any RN seamen, i.e. presumably the gunners, should they be desired”.[25]I am bound to say that to describe the gunners as “passengers” seems bizarre, but the Secretary of State has not advanced this categorisation as being appropriate. The claimants’ case was presented in a letter dated 3rd November 2003, from Richard Buxton & Co., the solicitors acting for the claimants. It is an impressive and clearly reasoned letter but, for present purposes, I shall confine citation and reference to the following:(1) “On the night of 2/3 November 1943, SS Storaa was bound from Southend to Bristol and Cardiff loaded with parts of tank bodies weighing 2,500 tons. These were sent to Cardiff by sea, because the railways were in use for the transport of other war material. The ship was armed with one 12 pounder gun, four oerlikons, one strip Lewis and two PAC rockets. The crew included four Naval and three Army gunners: British military personnel, whose purpose and duty on board was to defend the vessel in the event of enemy attack. She was part of a Channel convoy (CW221) which was attacked by German E boats of the 5th MTB Flotilla during that night. SS Storaa was struck by a single torpedo. Being so heavily laden, she sank very quickly, which partly explains the heavy loss of life.”(2) Reference was made to evidence which was said to be:
“… clear evidence that there are still human remains on the wreck”. (3) Reference was made to objects which have been brought to the surface including “… live shell cases, packed with primer and cordite, marked with the Government broad arrow, which further strengthen the argument that she was indeed in military service”. (4) Reference was made to a number of matters said to militate in favour of designation including: “i. The activity in which the SS STORAA was engaged when she was sunk by enemy action was clearly part of the Allied war effort. ii. There was a high loss of life, which occurred as a direct consequence of enemy action …”
. SS Storaa was struck by a single torpedo. Being so heavily laden, she sank very quickly, which partly explains the heavy loss of life.” “i. The activity in which the SS STORAA was engaged when she was sunk by enemy action was clearly part of the Allied war effort. ii. There was a high loss of life, which occurred as a direct consequence of enemy action …”.[26]Having taken counsel’s advice, Mr Peter MacDonald responded from the Second Sea Lord Policy Secretariat: Parliamentary and Heritage Ministry of Defence in a letter dated 9th March 2004. The following salient points were made:(1) The Act “expressly makes the determination as to whether a vessel was in military service one for the opinion of the Secretary of State. Based on the evidence that is and has been made available to him, the Secretary of State is of the opinion that the SS STORAA was not in military service and for which reason she is not a vessel capable of being designated for protection under the” Act.(2) “There is no evidence among the papers available to the MoD, which have been thoroughly considered, that the SS STORAA was in service with any of the armed forces of the United Kingdom or any other country or territory, or that she was being used for the purposes of any of the armed forces of the United Kingdom or any other country or territory. If a person is “in service with any of the armed forces” we are of the view that this means that that person is subject to a degree of control by the armed forces. This would also be true of a vessel “in service with etc…”. If she were in service with any of the armed forces we would have expected there to have been a degree of control exercised by any of the armed forces over the use and disposition of the vessel. However, the SS STORAA was commanded by a civilian and there is no suggestion that the master of the vessel was subject to military jurisdiction. Further, the mere fact of there being military personnel on board the SS STORAA for the purpose of protecting her does not mean that she was “in service with any of the armed forces”. As to whether the SS STORAA was being used for the purposes of any of the armed forces of the United Kingdom etc. records and evidence obtained by the MoD do not give any satisfactory indication as to the nature of her cargo. In the absence of any firm evidence that she was carrying tanks or other supplies for delivery to the armed forces, the Secretary of State is not satisfied that the vessel was being used for the purposes of the armed forces. Accordingly, on the materials currently available, the Secretary of State is not satisfied that the SS STORAA was in military service within the meaning of the PMRA. As such, she is not capable of designation under that Act.”[27]The claimants’ solicitors responded by a letter dated 21st April 2004. They joined issue with the conclusion that the vessel was not “in service with” the armed forces, but more particularly submitted further evidence in response to the suggestion that it was unclear what cargo was on board. “The information we have is directly contrary to what you say. As for contemporaneous evidence, we would rely upon:(a) The enclosed report of an interview with the 3rd officer, Mr H.B. Knudsen, conducted on 24th November 1943, in which he described the cargo as “parts of tank bodies”;(b) The relevant entry in Lloyd’s War Loses, Second World War, Volume 1 (facsimile reprint published in 1989), also enclosed, which confirms the vessel’s cargo as “parts of tank bodies”. Mr Knudsen subsequently wrote a book (“Krigs Sejler”) in which he amplified this, describing the cargo as “tank parts and aircraft”. We enclose a copy of the relevant passage of his book, which is to this effect. Materially (see the sidelined portion) we are advised it reads:
“When we had unloaded the pulp, we then began to load caterpillar tracks for the so-called “belt vehicles”, which was very heavy material almost solid iron. That was put in the bottom of the ship, and then we filled up the rest with aeroplanes in large boxes. We even had some as deck cargo. We were to take them over to Cardiff. It is not very far when one look at it on a land map, but because of the pressure on the rail network, we had to go the long way round.”
We understand that divers have indeed reported seeing aircraft wheels in the vicinity of the wreck. We understand that the primary cargo was the tank bodies, and broken down boxed aircraft were carried secondarily once there was spare room after the tanks had been loaded. We add that the SS Storaa was owned at the time by the Ministry of War Transport, that she was clearly sailing as part of a wartime convoy and that the purpose of her voyage was equally clearly to get her military cargo to Cardiff so that new/repaired fully operational tanks could shortly thereafter be delivered to the armed forces.”[28]The statement made by the Third Officer, Mr Knudsen, merits full citation:
“We were bound from Southend to Cardiff, loaded with parts of tank bodies weighing 2,500 tons. The ship was armed with 1-12 pdr., 4 Oerlikons, 1 Strip Lewis and 2 P.A.C. Rockets. The crew, including 4 Naval and 3 Army Gunners, numbered 35, and we carried one passenger (a pilot); of this total of 36, 22 are missing (Master, lst and 2nd Officers, 2nd and 3rd Engineers, Steward, Cook, 1 Naval and 2 Army Gunners, (names unknown), and 12 crew). All Confidential Books, with the Wireless Codes, went down with the ship. Degaussing was on. 2. We left Southend at 1000 on the 2nd November in convoy C.W.221, which was formed in two columns, our position being No.25, the fifth ship in the starboard column. 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. 5. It seemed as if I went right to the bottom with the ship before I managed to struggle out of the door and float to the surface. I swam around for a few minutes, and then luckily I came across a buoyant float, which I grabbed. I lighted the light on my lifejacket which was eventually sighted by a Coaster in the convoy, and after being about half an hour in the water I was picked up by this vessel. With the exception of another man, who was hanging on to a buoyant float near me, I did not see anyone else in the water. Altogether seven survivors from the STORAA were picked up by this English coaster, the rest being rescued by an M.L. 6. Shortly after being rescued, the Coaster, which was well astern of the rest of the convoy was attacked by an E-Boat, but fortunately the torpedo fired by the E-Boat passed right underneath the vessel. There followed a short exchange of gunfire between the E-Boat and the Coaster, after which the E-Boat departed without causing any further damage. All survivors were taken to Newhaven, where we landed at 0700 the same day.”
[29]This material led to the case “being put to Ministers for consideration”, but by August research was not complete. Finally, when sufficient time to make a recommendation to the Minister had passed, a decision was communicated by a letter dated 12th October 2004:
“Your letter of 3rd November 2003, ours of 9th March 2004, yours of 21st April 2004 and ours of 13th May 2004 all refer. The Secretary of State has now considered your clients’ request that he designate the remains of the SS STORAA under the Protection of Military Remains Act 1986. This has involved further extensive research into the nature of the STORAA’s cargo. In summary, and while in no way impugning his good faith, we have been unable to find any evidence to corroborate the recollections of Mr H B Knudsen, the surviving third officer of the STORAA whom you refer to in your letter of 21st April, that the vessel’s cargo consisted of tank parts and crated aircraft. The statement in Lloyds War Loses, Second World War, Volume 1, to which you also refer appears to follow on from Mr Knudsen’s original testimony at the time of the STORAA’s loss. In fact, examination of copies of the original bills of lading for the vessel which we have obtained reveal that her cargo consisted of some 608 tons of pig iron, 376 tons of steel slabs and 250 tons of steel billets. Copies of the bills of lading are attached. These raw materials were for delivery to E. Morton Peel at Cardiff though it appears that their ultimate destination was the iron and steel works of Guest Keen and Nettlefolds Ltd, also at Cardiff. The total weight of this consignment was some 1234 tons; it is doubtful that a ship of the STORAA’s size and gross tonnage could have carried much more cargo than this, and certainly not the 2000-2500 tons of armoured fighting vehicle components that have been variously quoted. As raw materials, the iron and steel were not in a form immediately usable by the armed forces; indeed, there is no guarantee that they were destined for the manufacture of equipment to be used by the armed forces. I have to tell you therefore that the original conclusion reached in this matter, as recorded in the Ministry of Defence’s letter of 9th March 2004, remains unchanged. The Secretary of State’s conclusion is that the available evidence does not establish, on the balance of probabilities, that the STORAA was 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. Accordingly, it does not appear to the Secretary of State that the STORAA was sunk while in military service and it is therefore not possible to make a designation under section 1(2)(a) or section 1(2)(b) of the 1986 Act.”
[30]The application for judicial review was lodged on 12th January 2005.

Post Permission Material

[31]It is not unusual for a defendant in judicial review proceedings to lodge extensive evidence in relation to the issues raised, including a statement by or on behalf of the decision-maker which amplifies and sheds light on the content of the decision and the process which was taken to reach it.[32]In this instance the court has received a volume of material, broadly speaking falling into the above category as well as a certain amount of material which does not. A paginated bundle, called the Post Permission Bundle, has been put in evidence without objection from the claimants. The bundle also contains Additional Grounds for Resisting the Claim which have been relied upon, again without objection.[33]The Secretary of State’s decision letter dated 12th October 2004 was communicated by Miss Adhimar from Naval Home Command. It is expressed to be a decision “on the available evidence”. The Post Permission Bundle contains evidence which was not available to the Secretary of State in October 2004, but there is no witness statement explaining what his response to that evidence has been. The fresh evidence has been addressed in the Additional Grounds for Resisting the Claim and the case has proceeded as though those grounds reflect the defendant’s approach to the evidence. With that in mind, I must summarise the salient features of the additional evidence.

Statement of John Cox, Head of the Air Historical Branch, MoD

[34]This statement is concerned with the evidence, available from Mr Knudsen’s book, that the cargo included “tank parts and aircraft”.[35]Mr Cox provides background information “as to the transport of military aircraft within the United Kingdom during the Second World War”. Based upon his knowledge as an historian, his opinion is that:(1) domestic manufactured aircraft for delivery in the United Kingdom were normally delivered fully assembled, lacking only military equipment.(2) domestic manufactured aircraft for delivery overseas may have been crated, “notably” in Shropshire and the west country. In his opinion it is difficult to see “why aircraft … would be sailed from London/Southend to Cardiff/Bristol” when they are likely to have been packed in the west of England.(3) Imported aircraft would be expected to arrive on the west coast.

Tom Adams, 4th July 2005, amateur naval historian

[36]His statement exhibits a copy of a paper he presented to the 50th Anniversary Naval Conference on the Battle of the Atlantic, held in 1993. It is a highly informative paper containing relevant information. I shall need to return to it later in this judgment (see paragraph 64 onwards below).

Peter MacDonald, 30th June 2005, head of Parliamentary and Heritage Branch, Ministry of Defence

[37]This statement records the facts behind the designations which have been made under the Act, as well as setting out the criteria used for designation. He records that thirty candidate wrecks, “all considered to be on military service” have been put on a list for ministerial approval.

Gavin Rudgley, 11th July 2005, head of Surface Ship Division, Ministry of Defence

[38]His statement addresses the evidence from the claimants that the STORAA was carrying 2000-2500 tons of tank parts. He takes the appropriate figure for the STORAA’s maximum deadweight as 3000 tons. He concludes “… the STORAA’s maximum permissible net cargo would have been about 2000 to 2500 tons. Had she been laden with a greater quantity of cargo, this would have taken her below her marks and therefore would have exposed her to a risk of shipping green seas in heavy weather and would have compromised her ability to survive damage”. Further, he states:
“The bill of lading stated that the SS STORAA was carrying 1234 tons of pig iron and steel. It therefore follows that the vessel could not have been carrying an additional 2000 to 2500 tons of tank parts without being loaded below her permissible marks”
.

Captain Christopher Page RN, 2nd July 2005, head of the MoD Naval Historical Branch

[39]His statement is given to assist the court in relation to arming and defence of coastal convoys during World War Two. He provides valuable information derived from historical research on the policy of equipping merchant ships for their own defence and the training of Merchant Navy personnel in the use of weapons. Further, he records that the “Master was in full control of the Service personnel and defensive and other equipment in the ship. All classes of Service personnel embarked for duty were to obey the orders of the master or his authorised representative [but] Service personnel remained subject to Service discipline”.[40]As to the convoy command structure, a naval officer, the Senior Officer of the Escort (SOE), was responsible for the safety of the convoy:
“However, subject to his orders on matters relating to the defence of the convoy, a Commodore … was in overall command”
. Commodores were invariably members of the Royal Naval Reserve.[41]As to coastal convoy operations, the initials “CW” referred to Channel Westwards. STORAA being CW221 indicates it was the 221st westwards convoy.

Evidence served by the interested party, Mr John Short

[42]Mr Short has supplied a considerable volume of material in support of his opinion that the claimants have identified the wrong vessel. Post Permission Material from the Claimants Second statement of Peter Marsden

Post Permission Material from the Claimants

[43]His statement joins issue with the suggestion that:(1) the claimants have identified the wrong vessel;(2) there are no human remains in the STORAA;(3) there are no tank parts, namely the tracks of tanks.[44]Referring to evidence obtained by recent dives by Dr Douglas McElvogue, he states that:(1) an independent expert, having seen stills taken, confirms that the wheels “look[s] to be of a standard American pattern … The tank track is definitely T41 or T51 pattern as used on the Sherman Tank and its derivatives”;(2) photographs have been seen and identified by a Doctor as showing human remains.(3) there can be no reasonable doubt, for the detailed reasons which he provides, that the vessel is the STORAA.

Statement from Dr Douglas McElvogue, 21st October 2005

[45]His statement provides the facts for Dr Marsden’s evidence. In particular, he states:
“The cargo in the forward hold consists of vehicle parts including caterpillar tracks, tyres with heavy treads and vehicle chassis”
.

Statement of Mr Donald Hunter, a radio officer on convoys in World War Two

[46]This statement was prepared by Mr Hunter after he had heard argument at the hearing. In the light of the discussion in connection with the command structure for convoys, he has provided the court with his first-hand recollection of serving in merchant vessels in various operations in World War Two.[47]In 1943 he served on the SS Empire Pickwick as radio officer. It was refitted as a landing ship infantry (“LSI”) and then became Mechanised Transport (“MT”) for the Normandy invasion. He served at D-Day taking troops to France in a combined Royal Navy and Merchant Navy operation. The Empire Pickwick was entirely crewed by merchant seamen including the provision of assistance in manning the guns.[48]Later he served on the MV Gard (a Norwegian vessel under the direct control of MOWT) carrying high-octane fuel for the Allied forces on a regular run between the USA, North Africa and the coast of Italy.[49]As to convoys, he confirms that, as radio officer, in his experience “all instructions to merchant ships both in convoy and when sailing alone came directly from the Admiralty through Rugby Radio (call sign GBR). The signals were in Naval Code. Only the radio officer had the code books”.[50]As to sailing, his recollection is that all ships sailed under “Admiralty orders”. Further, he was a trained gunner and he worked closely with the Royal Navy escorts on the convoys. Having served in convoys, he suggests it is wrong to “compartmentalise” the merchant ships from the navy ships. As he sees it, they were fighting together. He expresses his disappointment at the suggestion that fine lines can be drawn according to the cargo being carried.[51]As to overloading, he records: “vessels were often grossly overloaded (i.e. loaded over the Plimsoll line)”.[52]He exhibits his certificate of Proficiency, dated 17th February 1944, issued by the DEMS Training Centre, confirming his qualification for firing, cleaning and oiling of “Machine Guns & A/A Devices”. THE INTERPRETATION ISSUES “In service with the armed forces”

THE INTERPRETATION ISSUES

[53]Counsel for the Secretary of State submitted that the phrase is unproblematic and scarcely capable of much elaboration. He took, as an analogy, a reference to “service personnel” which plainly could not include civilians. A civilian working closely with the armed forces could not be said to be “in service with the armed forces”. He submitted that the words referred to serving military vessels. All merchant vessels, when travelling in convoy with a naval vessel, worked closely with a vessel of the armed forces, but he submitted were not “in service with the armed forces”. Such proximity as the facts might establish could not change its status from a civilian vessel into a serving military vessel, although a formal requisitioning by or charter to the armed forces might give rise to different considerations and a different result.[54]I must confess I do not find the issue “unproblematic”. Section 132 of the Naval Discipline Act 1957 draws a distinction between “commissioned ships flying the white ensign” (being Her Majesty’s ships) and “Her Majesty’s vessels” being other than commissioned and white ensign ships, but vessels whether belonging to Her Majesty or not, “engaged in the naval service of Her Majesty”. From that it can be seen another expression is employed, namely being “engaged in the naval service of Her Majesty”, for which, so far as Commonwealth or colonial vessels are concerned, those “placed at the disposal of Her Majesty for general service in the Royal Navy” are included.[55]The defendant contended (see letter dated 9th March 2004) that for a vessel to be “in service with any of the armed forces” it must be “… subject to a degree of control by the armed forces”. The argument, so formulated, has not been controversial. It has been acknowledged that some “degree of control” is likely to exist when a vessel is “in service with any of the armed forces”. The Secretary of State has argued, in my judgment correctly and without contest from the claimants, that, in addition to vessels flying the white ensign, vessels which are:(1) operated and controlled by any of the armed forces;(2) requisitioned or under charter to the military, are likely to be “in service with the armed forces”. Both categories assume a high degree of, if not total, control being held over a vessel by the relevant branch of the armed forces and a formal or legal arrangement permitting the state of affairs over a period of time and which may give rise to exclusive possession. The categories mirror section 132(1) of the Naval Discipline Act 1957, namely: (i) commissioned ships carrying the white ensign, (ii) vessels, not being commissioned ships owned by Her Majesty, “engaged in the naval service”, and (iii) Commonwealth or colonial vessels “.. at the disposal of Her Majesty for general service in the Royal Navy”.[56]The Act does not refer to a vessel being “engaged in the naval service” or in “general service in the Royal Navy” but to being “in service with the armed forces” at the time it sank. As to the term or length of the service with the armed forces which the Act contemplates, section 9(2) of the Act provides “… an aircraft or vessel shall be regarded as having been in military service at a particular time if at that time it was …”. In my judgment it is not necessary, in order for a vessel to be regarded as “in service with the armed forces”, that it is “in general service” with the armed service, or that it is “in service” pursuant to a legal arrangement creating a right to exclusive possession for a term or period of time. That said, the question remains: what degree of control must the armed services have over the activity of a vessel for the vessel to be “in service with the armed forces”?[57]Ms Sharpston QC, counsel for the claimants, drew attention to section 31 Naval Discipline Act, 1866, being the Act in force in 1943, governing the STORAA’s participation in the convoy on 2nd November 1943. It provided:
“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.”
[58]In my judgment, 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:(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.[59]After the conclusion of the hearing the claimants’ solicitors helpfully provided a copy of the successor provision in the Naval Discipline Act 1957 which, with immaterial changes in language, is in substantially the same terms. In determining the status of a vessel under convoy in 1943, the 1866 Act would appear to me to be directly relevant. In that regard, reference can be made to section 30 of the 1866 Act:
“30. The Officers of all Ships of Her Majesty appointed for the Convoy and Protection of any Ships or Vessels shall diligently perform their Duty without Delay according to their Instructions in that Behalf; and every Officer who shall fail in his Duty in this respect, and shall not defend the Ships and Goods under his Convoy, without Deviation to any other Objects, or shall refuse to fight in their Defence if they are assailed, or shall cowardly abandon and expose the Ships in his Convoy to Hazard, or shall demand or exact any Money or other Reward from any Merchant or Master for convoying any Ships or Vessels intrusted to his Care, or shall misuse the Masters or Mariners thereof, shall make such Reparation in Damages to the Merchants, Owners, and others as the Court of Admiralty may adjudge, and also shall be punished criminally according to the Nature of his Offence, by Death or such other Punishment as is herein-after mentioned.”
[60]Since section 30 of the 1866 Act distinguishes between “… ships of Her Majesty appointed for the Convoy”, and the ships in the convoy it might be said that Her Majesty’s ships when protecting ships in convoy are in service for that purpose, and the ships, so far as they are in service (in any sense), are proceeding under protection against hazard to the ships and their cargoes. Where such distinct purposes can be identified, can the protected vessels be proceeding so as to be “in service with” the protecting vessel?[61]Ms Sharpston accepted that for a vessel to qualify for designation under the Act it must have a specific military connection at the time of its sinking. But she drew attention to the terms of the Protection of Military Remains Bill which referred to vessels “in service as a vessel of the naval, military or air forces” or “in the service of the Ministry of Defence”. As a result of the amendments made to the Bill, the Act, as passed, does not state that such vessels must be “in the service” of the armed forces, or in “service as” a vessel of the armed forces. Further, and by way of answer to the submissions for the Secretary of State, she submitted, nor does the Act state that they must “be controlled by the Armed Forces” or that they must “have been taken over by” the armed forces. In my judgment these submissions have force and they do point to the Secretary of State having adopted an unduly restrictive interpretation of the expression “in service with”.[62]In my judgment the distinction which she has drawn is helpful and sheds light on the true meaning of the expression. It appears to me that the first question which can be asked is a broad one: why was the vessel situated where it was when it sank? In the instant case, 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. 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”.[63]It follows that the assertion in the decision letter dated 9th March 2004 that the master of the STORAA was not “subject to military jurisdiction” is plainly wrong (see section 31 of the 1866 Act) and at the relevant time “the use and disposition” of the vessel was controlled by the Admiralty. On analysis, the suggestion in the letter that there was no or no sufficient “degree of control exercised by any of the armed forces over the use and disposition of the vessel” appears to concentrate on the “use and disposition” of the STORAA judged only by reference to its owners and it being laden with cargo, rather than by reference to the particular activity in which it was engaged at the “particular time” (section 9(2)) it sank. For completeness, and by way of elaboration on the reasoning in this approach, reference must be made to the first decision letter dated 25th May 2000 where the Secretary of State drew attention to:(1) ownership by the Ministry of War Transport;(2) that it had not “been taken up by the Admiralty”;(3) that, while it may have been carrying supplies necessary for “war work”, this did not mean it was “in military service” within the meaning of the Act; and(4) that the crew and her purpose was mercantile. MOWT and Convoys MOWT[64]The court is indebted to Mr Tom Adams for the learning and research contained in exhibit “TA1”. The following appear to be the salient points for present purposes.[65]By an Order in Council dated 9th May 1941 (SI No. 654) made under the Ministers of the Crown (Emergency Appointments) Act 1939 all the functions of the Ministry of Transport and the Ministry of Shipping were transferred to the Minister of War Transport. Section 1(1) of the 1939 Act provided: “His Majesty may by Order in Council direct that this Act shall apply to any Minister of the Crown appointed for the purpose of exercising functions connected with the prosecution of any war in which His Majesty may be engaged”.[66]The MOWT had the power to control merchant ships by(1) requisitioning ships;(2) regulating and controlling the movement of ships;(3) regulating the trade in which ships were employed and the type and amount of cargo carried; and(4) acting as the owning authority for all ships under Government control.[67]National demands for merchant shipping came from civil ministries as well as from the requirements of the armed forces. An officer within MOWT, the Director of Sea Transport, exercised central control over these demands. He allocated merchant ships to the armed services and, in so doing, his functions included:(1) conversion of ships for service as troopships, hospital ships, carriers and for special duties;(2) co-operation with the armed services on their requirements for the movement of troops and cargo and co-operation with the Admiralty on convoy escorts and naval control;(3) dealing with the planning of cargo movements and port handling facilities for fighting stores, for example, ammunition, aircraft and tanks.[68]Mr Adams devotes a section of his work to “Admiralty Trade Division – Naval Control of Shipping” (post permission bundle page 327-328). In the section he observes that the Admiralty “… had mandatory control over the movement of all merchant shipping. It is in this area that the difference between control and protection becomes difficult to separate”. Not all merchant vessels travelled in convoys, but routing instructions could be issued to ships not in convoy. The Admiralty Trade Division of the MOWT appears, as a general rule, to have decided whether a ship travelled in convoy and issued sailing instructions to ships which were to travel in convoy. Further, the responsibility for arming merchant ships lay with the Defensively Equipped Merchant Ships Section of the MOWT.[69]Such provision normally involved the fixing of armaments, paravene 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 was also the responsibility of this section of the MOWT.

Convoys

[70]Captain Page helpfully provides more detail in connection with the defensive arming of merchant shipping (post permission bundle page 361 onwards). He identifies “the most dangerous of all the sea passages” as the Dover Strait and Wold Channel (known as Hell’s Corner and E-boat alley). Degaussing gave some protection against magnetic mines. Coasters (like the STORAA) had to be provided with protection against bombers. Lewis guns served this purpose, manned by naval personnel who were transferred from ship to ship. Between 1940 and 1943 the extent and variety of armaments with which merchant vessels were equipped increased. An Oerlikon was a close-range 20 mm anti-aircraft gun which, by 1942, was being installed on many vessels. The need for gun crews exceeded availability from the armed forces and thus Merchant Navy seamen were trained as gunners (viz Mr Donald Hunter). At about VE Day the appropriate number involved in merchant ships defence was: DEMS ratings, including army personnel 38,000 Merchant seamen: trained gunners 11,500 Merchant seamen: trained machine gunners 7,600

The Command Structure

[71]The Master of a merchant ship was in full control of the “service personnel” and the defensive and other equipment in the ship. Save in an emergency, DEMS personnel were not to be employed in the ordinary duties of the ship. Service personnel remained subject to naval discipline (the Naval Discipline Act 1866) and the Master was subject to section 31 of the 1866 Act.[72]The Senior Officer of the Escort (SOE) (a naval officer) was responsible for the safety of the convoy from enemy action. Subject to the SOE on matters of defence, a Commodore (normally a retired naval officer and a member of the Royal Naval Reserve) was in overall command of the vessels in the convoy. The Commodore’s responsibilities included:(1) the safe navigation of the convoy;(2) the internal organisation and cruising order of the convoy;(3) the readiness for action and fighting efficiency of the vessels;(4) in consultation with the SOE, arranging firing practice. The Secretary of State’s Approach to the Post Permission material in connection with the

MOWT and Convoys

[73]As I have already observed, the Secretary of State’s position has to be taken from the Additional Grounds for Resisting the claim.[74]As to the MOWT, it is submitted that since the STORAA was owned by the MOWT, which Ministry was responsible for all British and British controlled merchant shipping, it being a civilian ministry, the STORAA was “thus under both civilian ownership and control” (paragraph 2). This contention takes no account of the wartime relationship of the MOWT and the armed forces and the functions of the former performed for the benefit of the latter. It takes no account of section 31 of the Naval Discipline Act 1866.[75]As to the armaments and naval manning of the STORAA, it is observed that the level of armaments and manning were typical for a coaster of the STORAA’s size. Reliance is placed upon Captain Page’s evidence for the contention (see para 3):
“The fact that the STORAA was armed and had military personnel on board does not therefore assist the Claimants in establishing that she was in military service or being used for military purposes; as in this respect she was no different from any other coaster of her size”
. The reason advanced for the making of the assertion does not support it. The reason appears to start with a supposition that all merchant vessels in convoys are outside the Act and that, therefore, in the absence of a distinction between the STORAA and other armed merchant vessels, travelling in convoy, the fact that it was armed and had military personnel on board is immaterial. It does not attempt to address the question whether merchant vessels armed and in convoy can be regarded as “in service with the armed forces”. It echoes the approach underlying the observation made to Dr Marsden in 2000: “The department is primarily concerned with Royal Naval ships and has only a passing interest in Merchant Ships”.[76]As to convoy control and command, it is asserted (para 4), referring to Captain Page:
“This arrangement was standard for Merchant Navy Coastal convoys and thus does not assist the Claimants in establishing that the STORAA was in military service or being used for military purposes”
. The observation is flawed for it moves upon the fallacy that the test to be applied is whether the STORAA can be distinguished from other merchant vessels. The reasoning carries no assessment of the degree of control exercised by the Admiralty and no assessment of the proximity which existed between the activity of the protection vessel and the activity of the STORAA to which the voyage in convoy gave rise. It does not address the armed combat in which the STORAA was engaged prior to being sunk and at the time it was struck by a torpedo. The extent of the combat with the enemy can be assessed from the evidence of Mr Knudsen, including that part of his account to the effect that, after being sunk with the STORAA, he was picked up by a coaster from the convoy and it, whilst en route to Newhaven, was also attacked by an E-boat which fired a torpedo at the coaster.

CASE LAW

[77]When meeting the claimants’ arguments that the STORAA was “being used for the purposes of” the armed forces, the Secretary of State placed reliance upon Clan Lines Steamers Ltd v Liverpool and London War Risks Insurance Association Ltd [1942] 73 Ll.L.Rep. 165. It is an important case for its reasoning and for the citation it contains of judicial assessments which have been made in connection with the significance which can flow from merchant vessels having travelled in convoy. In response, the claimants relied upon Britain Steamship Company Limited v The King and Others [1921] 1 AC 99 for the light it sheds on the relationship between a merchant vessel in convoy and a convoying naval vessel.

Clan Lines

[78]As a result of 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 alleged 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. Atkinson J., relying upon BritainSteamship v The King, held that the Orlock Head was not engaged in a warlike operation.[79]Atkinson J. recorded that the Orlock Head was in the course of a voyage, routed by the naval authorities proceeding through the English Channel which was dangerous to vessels. She was armed with gun protection against air and submarine attack and carried a naval gunner on board. The cargo consisted of 1,519 tons of steel rounds and 168 tons of general merchandise. The steel rounds were intended for the making of shells to be used by the French Republic in warlike operations against the enemy. Referring to the judgment of Lord Wright in Yorkshire Dale Steamship Company Ltd v. Minister of War Transport (73 Ll.L.Rep.1), Atkinson J. stated:
“… the learned Lord deals with the question as to 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. This depends, he says, on the nature of the cargo and the voyage…”
In the Yorkshire Dale case Lord Wright stated: “She was then in the act of proceeding in convoy from Greenock to Narvik with a cargo of petrol for use by His Majesty’s forces in the Norwegian campaign then on foot. The crucial admission was made on behalf of the respondent that at the time of stranding the vessel was engaged in a warlike operation, namely, proceeding from one war base to another war base with military stores for the use of the British forces in the field… Under certain circumstances, a trading or merchant vessel has been held to be for purposes of the war risk clause engaged in a warlike operation. As illustrative of these circumstances, I may take those of a merchant ship carrying troops, ammunition, guns, tanks, or other military machines or equipment to a theatre of war, or away from a theatre of war… Such a vessel may be regarded pro hac vice as serving the belligerent purposes of the country and as taking her share in hostilities against the enemy. She is therefore, it is said, to be deemed to be engaged on a warlike operation…”.[80]Atkinson J. referred to the finding at first instance of Bailhache J. in the Matiana. The latter had concluded that “sailing in convoy on a chosen route and taking precautionary measures [zig-zagging] necessary because of the presence of hostile submarines had led to the vessel being stranded. It was subsequently torpedoed”. But this finding was reversed by the Court of Appeal and that court’s decision was upheld by a majority in the House of Lords.[81]It has not been suggested that the holdings in these cases can do anything more than disclose a possible approach to the proper meaning and interpretation of section 9(2) of the Act, but counsel for the Secretary of State did acknowledge that the conclusion and reasoning in Clan Lines, in connection with the cargo on board the Orlock Head, had been influential in the decision taken to reject the case for the STORAA being used for the purposes of the armed forces. Atkinson J. concluded: “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”.[82]I have concluded from a reading of the Britain Steamship case (in particular the judgments in the case concerning the vessel “the Matiana”) that, on the facts which are before this court, the loss of the STORAA would have been held to be a loss consequent upon a “warlike operation”. For example, Warrington L.J. ([1919] 2 KB 670, 684):
“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”
. Again the majority in the House of Lords proceeded upon the basis that: “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” (Lord Atkinson 1921 1 AC p. 119).[83]Ms Sharpston drew attention to the dissenting opinions in the House of Lords of Viscount Cave and Lord Shaw of Dunfermline. In particular, the observation of Viscount Cave at p. 110:
“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 at p. 123:
“… 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….”
. After reference to the Naval Discipline Act 1866, he observed at p. 124:
“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”
. A little later he stated:
“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.”
At page 125:
“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.”
[84]I have up to this point in the judgment not considered a controversy which has arisen in connection with the character of the cargo being carried by the STORAA. The existence of a dispute and the terms in which the Secretary of State expressed his conclusion gave rise to comment, but the character of the cargo has been treated, for the most part, as a feature which is relevant to whether the STORAA “was being used for the purposes of the armed forces”. I propose to consider the relevance which the cargo can have to both limbs of the definition in section 9(2) of the Act later in this judgment. The meaning of “in service with … any of the armed forces of the United Kingdom or any other country or territory”[85]In my judgment the meaning of “in service with … the armed forces …” is not to be found in an analogy, such as a reference to “service personnel”, and then, as applied to vessels, or to be understood as referring to “serving military vessels”. Section 9(2) contemplates the opposite. Had it been intended to limit designation to “serving military vessels” Parliament could have adopted the terms of the original Bill:
“… vessel … in service as an aircraft or vessel of the naval, military or air forces of any country or territory”
(emphasis added) or a vessel “… (b) while in the service of the Ministry of Defence or of any other authority which at the time exercised functions in relation to any of the naval, military or air forces of Her Majesty”. 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”.[86]In my judgment it seems likely that the Secretary of State’s interpretation of “in service with” has been influenced by attention being paid to the phrase “in military service”, whereas the exclusive meaning of that expression has been provided for in section 9(2) of the Act.[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.[88]According to various expressions used in the course of debates, it was stated the legislation was designed to provide for the “sanctity of war graves” (see Lord Trefgarne as cited in paragraph 11 above); or put another way (Lord Parry paragraph 12 above), to provide for the “sanctity … of the remains of those who sacrificed themselves in the service of the country …”. These expressions are powerful and emotive, but have been relied upon by the claimants not for their emotive content, but to emphasise a common thread or identity which it is said exists between those serving together as combatants in war. It is obvious that one of the principal purposes of the Act is to provide for the sanctity of human remains of those who died with the sinking of their vessel by enemy action, but this case has highlighted how all those who sacrificed themselves in the service of the country in such manner may not fall within the Act. Given the obvious contextual background to the Act, it extends to activities in time of war, but not to all actions taken by any vessel in the course of war.[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.[92]In my judgment the reach of the inquiry which the Act requires cannot stop at the stage when it appears that the vessel in question was a merchant vessel, not taken up by the Admiralty or within the definition in section 132(1) of the 1957 Naval Discipline Act. It can be said in this instance that the Secretary of State went further. He was correct to suggest in the decision letter dated 9th March 2004 that a “degree of control by the armed forces” would have to be shown, but, in my judgment, he has not considered all the facts relevant to the proper application of that criterion and, in particular, the facts and the law in connection with convoys and the facts and circumstances of the particular convoy in which the STORAA was required to travel.[93]I observed in the course of argument that no attention appeared to have been paid by the Secretary of State to the function and purpose which the STORAA was performing, examined by reference to the statutory powers and functions of the MOWT and the particular facts which had caused the STORAA to be in convoy. The fact that MOWT, a civilian Ministry, owned the STORAA did not meet the range of necessary inquiry. It is clear from the material provided to the court (and not considered by the Secretary of State) that the MOWT was required, in the discharge of its functions, to act, at times, with the Admiralty and for the purposes of the Admiralty (see in particular and without need for repetition paragraph 67 above).

The factual issue in connection with the STORAA’s cargo

[94]The Secretary of State concluded the evidence available failed “to give any satisfactory indication as to the nature of her cargo” (9th March 2004 decision letter). Research after that date revealed the bills of lading showing that a cargo of 376 tons of steel slabs, 250 tons of steel billets and 608 tons of pig iron were on board. This led the Secretary of State to doubt the accuracy of Mr Knudsen’s evidence that it was loaded with tank bodies weighing 2500 tons, but it has not been clear whether or not it appeared to the Secretary of State that nonetheless there were tank parts on board, a fact which is now supported by post permission material from the claimants. Since the total of 1234 tons according to the bills of lading would, on the evidence from Mr Rudgley that it would carry up to 2500 tons, comprise about half of its cargo capacity, a question arises as to whether other cargo was on board. It would seem unlikely to have been carrying less than its normal capacity and could possibly have been carrying excess over “the Plimsoll line” as Mr Hunter records sometimes occurred.

Relevance of the character of the cargo

[95]In my judgment, when considering the function or activity of a vessel and whether “it is in service with” the armed forces, it will be necessary to investigate and conclude on the character of the cargo which was on board when it sank. The citation from the judgment of Atkinson J. in Clan Lines set out in paragraph 81 above contains examples illustrative of the impact which the cargo can have upon the function or activity of a vessel. I can see little advantage in proliferating examples and thus intend to concentrate on the approach taken by the parties in the instant case.[96]I shall proceed on the basis that whether there was a significant cargo of tank parts and/or aircraft parts on board is not material to the legal meaning which the Secretary of State attributed to the Act.[97]The Secretary of State submitted that whilst the carriage of cargo “… may have been a use or operation which was for the ultimate benefit of the armed forces” (just as was the carriage of the steel rounds by the Orlock), the use to which the vessel was being put was the carriage of the cargo for the Ministry of War Transport. There is no evidence that the armed forces played any role in organising or procuring the carriage of the cargo, the functions were civilian including those of the manufacturers which were part of the war effort generally, not the “purposes” of the armed forces.[98]I agree that the second part of the definition in the Act requires more to be shown than that the use of the vessel furthered the war effort generally. I agree that the immediacy of the relationship or connection between the use of the vessel and the armed forces is a material feature to be considered. A factory engaged in manufacturing munitions in time of war is carrying on an activity for the benefit of the war effort. The aim is to provide munitions for the defence of the realm which will be used by the armed forces, but the factory is not, on this ground alone, “in use for the purposes of the armed forces”. But the circumstances in which a factory in time of war came to be used for manufacturing munitions may well not be equivalent to the circumstances which have required a vessel to carry cargo. And there is no equivalent of being required to perform the service by a route and in circumstances dictated by the armed forces.[99]The Secretary of State correctly took account of the fact that the STORAA’s cargo was not for direct delivery to a theatre of war or to the armed forces, but in my judgment he assumed too much from the role played by the MOWT, as owners, in directing the cargo carrying activity. He appears to have paid little or no regard to the role which must have been played by the Admiralty in providing or procuring the convoy. The existence of the convoy was, in itself, evidence of a role played by the armed forces. It is not the case that there was “no evidence” that the armed forces played a role. Nor, since research has not been undertaken into the records, is it known that evidence does not exist relating to instructions and directions received by the MOWT from the Admiralty.[100]A proper assessment of the facts requires more than consideration being given to the destination of the cargo. As his reasoning accepts, a direct connexion between the cargo and the armed forces could be highly relevant. But there must be an assessment in connection with the origin and purpose of the voyage, as well as the manner of performing delivery including the factors governing the route and circumstances under which the voyage was undertaken. 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 Whitshead 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.

Irrationality/Unreasonableness

[103]The claimants advanced a number of criticisms of the Secretary of State’s approach but, in the light of the conclusions which I have already expressed in this judgment, there is force in Mr Goldstone’s suggestion that they are largely “a reprise of the arguments” raised in connection with the interpretation of the Act. Since I have concluded that the Secretary of State’s decision must be quashed and the matter be remitted to him for consideration in the light of this judgment, nothing will be served by reviewing the arguments under a different head of challenge.

Mr Short

[104]Mr Short was granted permission to intervene as an interested party. He addressed the court briefly. His essential contention is a factual one, namely that there are no human remains in the wreck of the STORAA and there is no military cargo. More fundamentally, he has asserted that the claimants have identified the wrong vessel.[105]His assertions will no doubt be included in the material which will be considered by the Secretary of State.[106]As to any legal issue which could arise in connection with his property rights following upon designation of the STORAA, they cannot properly arise since designation has not occurred. In the circumstances, the court is not called to rule upon a presently academic issue and it declines to do so.

Order (subject to any representations of the parties to the contrary)

[107]This application for judicial review succeeds for the reasons given above. I propose, subject to any representations, to order that the Secretary of State’s decision (contained in the decision letters) is quashed and that the Secretary of State should reconsider his decision on designation of the STORAA in accordance with this judgment on the proper interpretation of section 9(2) of the Act. I shall hear counsel on the appropriate order as to costs.