Merchantman or Quasi-Warship? R. v. Fogg & Sec. State for Defence & Short

Transcription

1 Merchantman or Quasi-Warship? R. v. Fogg & Sec. State for Defence & Short

2 Merchantman or Quasi-Warship? Legal fight to protect grave of wartime seamen Guardian Storaa could redefine term military Diver January 04 Sisters win battle over war grave Times December 05 Court judgement threatens diving on thousands of wrecks Diver February 06

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4 ss. Storaa 1918 launched Greenock Wellpark for Denholm Line 1,967 tons 1940 Storaa of Hetland Co. Denmark 9 th April Denmark invaded Storaa sailed to UK June impounded by Vichy French in Casablanca Nov freed by allies & returns to UK early 1943 Taken over by MOWT (Civil dept.) Managed by Walter T Gould (shipbrokers) of Cardiff 1 x 12pdr 4 x 20mm 1x.303 Lewis mg (DEMS) Crew under Board of Trade mercantile articles 5 Naval Gunners aboard

5 ss. Storaa 2 nd Nov 1943 London to Bristol Convoy CW tons of pig iron 376 tons of steel slabs 250 tons of steel billets to E. Morton Peel at Cardiff 2m lengths Sherman tank tracks Scout car or truck or DUKW chassis? 4xMGB s & 4xML s SOE HMS Whitshed

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8 RN Escort V&W class Destroyer- Swan Hunter ,100 tons - 34 knots - 4 x 4.7 & 6 x 21 torpedoes Post Jutland increased gunnery range - more seaworthy more torpedoes Yardstick for all inter war designs WW II convoy escorts modified as LRE or Wairs Mined 31 st July 1940 Sunk U-55 & Sperrbrecher 178 Whitshed not modified

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12 ss. Storaa 5 th MTB Flotilla Commanded by F Kapitan Klug outstanding ace later NATO admiral S-138 Lt. Hans-Jurgen hrs Storaa hit amidships under Bridge Sunk within 30 seconds 21 merchant & naval seamen lost out of 37 lost Salvage: cargo sold 1947 & hull 1985

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14 PROTECTION OF MILITARY REMAINS ACT 1986 Creates: Protected Places Controlled Sites Prohibits: unlicensed excavation of Military remains of any aircraft or vessel of any age

15 PMRA 1986 Protected Places are remains of any crashed military aircraft are remains of a designated vessel sunk after 4 August 1914 location need not be known Offences to believe or suspect remains are of above and to conduct diving/salvage operations to tamper, unearth, remove, damage or enter interior or to excavate for purpose of investigation or recording

16 PMRA 1986 Controlled Sites are known locations of military aircraft or vessels are less than 200 years old are designated as such Offences to tamper with, damage, unearth or enter interior to conduct diving/salvage operations or to excavate for purpose of investigation or recording

17 What Can Be Designated? Any Vessel In military service : Defined as (s.9(2)(a) ): in service with (1 st Limb) or used for the purposes (2 nd of armed forces of UK in service with (1 st Limb) = commissioned vessel? cf. Articles 95 & 96 UNCLOS used for the purposes of armed forces (2 nd Limb)? e.g. Limb)

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20 What Can Be Designated? used for the purposes of armed forces (2 nd Limb) Transports of military stores to war zone (e.g. Atlantic Conveyor) MAC ships? CAM ships? Cable ships? Elint ships? Tugs / Salvage vessels? Weather Ships? Block ships e.g. Normandy 1944

21 R. v. Fogg & Sec. State for Defence & Short ss. Storaa owned by MOWT (civil dept.) managed by civilian shipbrokers crew merchantmen + 5 RN gunners cargo + destination determined by MOWT cargo destination Cardiff war zone in 1943? used its armament to assist in defence of convoy? cargo of steel to civil steel works for? cargo of tank tracks to? cargo of trucks to? sailed under orders + control of SOE (RN) criminal offence to disobey SOE (RN)

22 MOD s Argument In military service means : in service with (1 st Limb) = commissioned vessels used for the purposes of armed forces (2 nd Limb) Storaa not commissioned vessel (1 st Limb) Storaa use purely merchantile - not used for the purposes of armed forces (2 nd Limb)

23 MOD s Arguments Storaa not in 2 nd Limb : owned by MOWT (civil dept.) managed by civilian shipbrokers crew merchantmen - 5 RN gunners for self defence only not offence cargo + destination determined by MOWT (civil dept.) Cargo not for direct military purposes use & activity controlled by MOWT not Adm.

24 The High Ct. Judgement in service with armed forces of UK (s.9(2)(a) NOT restricted to a commissioned vessel (i.e. HMS ) simply means jointly acting with armed forces s.31 Naval Discipline Act 1866 SOE in control of vessels for purposes of navigation & security of convoy Admiralty in control of routes for convoys engaged in common activity with HMS Whitshed defending convoy against enemy controlled by SOE & required to act jointly in defence of convoy

25 Court of Appeal MOD s Arguments Storaa not commissioned vessel not in service with (1 st Limb) Storaa use purely merchantile - not used for the purposes of armed forces (2 nd Limb) High Ct. - If Storra within 1 st Limb what is left within 2 nd Limb?

26 Court of Appeal sailed in dangerous waters on Adm. orders destination Cardiff (war zone in 1943) used armament to defend convoy = common purpose with escort Adm. determined convoy route time & make up under orders + control of SOE (RN) criminal offence to disobey SOE (RN) High degree of control by Adm & engaged in common endeavour (purpose) of convoy in service with (1 st limb) = broad character of use / activity not status engaged physically alongside RN in same military operation - safe arrival of convoy Didn t really deal with 2 nd limb

27 Court of Appeal Hansard little ref. but suggests Parl. did NOT intend wide application to MV s Removes trad. legal distinction between Sov. Immune vessels & commercial vessels Negates post 1945 policy of cargo / hull disposal No indication Parl. intended such a sweeping reform of law or policy Human rights proprietary rights of hull & cargo owners (1st Protocol Article 1)) No compensation under 1986 Act Court did not inquire into effect on H.R. s

28 R. v. Fogg & Sec. State for Defence & Short Why was the case brought? Not driven by archaeology Designation under 1973 rejected by ACHWS Vessel well documented Family did not drive the issue Family traced by Merchant Navy Association Their support sought

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30 R. v. Fogg & Sec. State for Defence & Short 44,000 merchant sailors died in WW11 No official recognition until 3 rd Sept For many years Merchant Navy had no memorial Not allowed to march past Centotaph on Armistice Cf. - USA full veteran status Left bitter scars over recognition

31 I cannot imagine, aside from the usual prejudices we re all aware of, why the war dead of the Merchant Navy are denied the right to rest in peace. in the UK our Merchant Seamen who died in wartime are still treated with a total lack of respect.. Peter Sharpe (Research Officer, MNA)

32 Wrecks of the Royal Navy are protected against interference so why should divers be allowed to rummage around in merchant ships in which men died in the service of their country. Capt. John Sail (Chair, MNA Times 14/12/05)

33 You cheer your sailor lads In their mighty iron clads, And you spare a cheer For Tommy Atkins too You went into a funk When you heard of convoys sunk But did you ever give a damn About the crews? (Derek Bristow, Chair, MNA 3 rd September 2000)

34 The Implications? Storaa designated? As a Protected Place or Controlled Site? MNA 200 designations unlikely? MOD no widespread mercantile designations? MOD - mercantile designations reactive Respect Our Wrecks Don t recover wreck Be PR wise Be ambassadors for our sport Accept the moral climate has changed