- Sisters' victory for father killed in WW2
- Final decision still rests with defence secretary
Two sisters fighting to have the torpedoed merchant navy ship on which their father died during the second world war designated a war grave scored an important victory yesterday in the court of appeal.
The ruling in favour of Rosemary Fogg and Valerie Ledgard opens the way for others whose relatives were lost in merchant navy vessels sunk by enemy action while travelling in convoy with military ships to apply for their resting places to be protected as war graves.
Their father, Petty Officer James Varndell, 44, a Royal Navy gunner assigned to the cargo ship Storaa, died with 21 others when the vessel was torpedoed in November 1943 by German boats while travelling in convoy from Southend to Cardiff. In 1985 the MoD sold the salvage rights to divers from the Hastings Sub Aqua Association for £150, and the sisters feared that divers would be at liberty to disturb their father's remains.
Three appeal court judges, headed by the master of the rolls, Sir Anthony Clarke, rejected arguments by the defence secretary, Des Browne, that he had no power under the Military Remains Act to designate the ship as a war grave because it was not "in military service" at the time it was sunk, as required by the act. Rosemary was 12 and Valerie just four when the Storaa went down in the Channel 10 miles south of Hastings. Yesterday's ruling does not mean that the sisters will definitely get their way, but the defence secretary must now reconsider their case in the light of the court's judgment.
Their solicitor, Richard Buxton, said that in practice, the court victory had "considerably widened" the scope of vessels eligible for designation as a war grave. He added: "This has been a three-year court fight but it has taken 60 years since the end of the second world war to get recognition for these merchant ships on a par with the Royal Navy."
Sir Anthony said the court agreed with the high court judge who had earlier ruled in the sisters ' favour that the defence secretary's refusal was unlawful because the Storaa, while travelling in convoy, was "capable of being regarded as in service with the armed forces". It was obliged to obey the commander of the naval ship leading the convoy and at the time it sank each ship was providing armed protection for both the cargo and the convoy.
The decision was welcomed by the sisters, both from Worthing, East Sussex, as a "marvellous" relief. Mrs Fogg, a retired Church Army organiser, said: "I am very pleased if the decision opens the way to other families to ask for their loved ones' ships to be designated as graves. I definitely hope that they will."
Mrs Ledgard, a former trade union organiser, said: "It's the right end to a battle that should never have had to go on so long. We're very pleased indeed - not just with the recognition that our father died on military service but with the respect that this decision pays to his merchant navy compatriots. The ministry has still got 21 days to consider an appeal to the House of Lords but we can't believe they would do that."
Peter Marsden, of Hastings's Shipwreck Heritage Centre, who began the campaign for designation seven years ago, said: "This is a landmark although we're not quite there yet. The court has ruled that the Storaa is eligible but now the defence secretary has to decide whether or not to designate her. We are sure that he will, because she fits all his ministry's requirements for a war grave, but we are not popping the champagne corks until he does."
Mr Marsden criticised the Department for Culture, Media and Sport for ruling out protection on the different ground that the wreck was "not historic".
He said: "It is ridiculous to say that - her history is quite remarkable. She was a basic, battered old Danish steamboat which was interned in Morocco earlier in the war before she ended up fighting ... in the Channel convoy."