As the Armed Forces Bill approaches its final parliamentary stages, an important question has emerged concerning the UK Government’s decision not to provide a more explicit definition of vessels “in military service”.
One possible argument in favour of retaining flexibility is that prospective salvors may be uncertain whether a particular wartime merchant vessel falls within the legislation. Faced with the possibility of criminal liability, they may decide against interfering with the wreck.
At first glance, this appears to offer a practical deterrent. However, I question whether ambiguity can genuinely provide effective protection when the same government maintains an administrative interpretation that may exclude vessels otherwise capable of protection under the legislation.
There is a fundamental difference between legislative flexibility and administrative uncertainty.
A sufficiently broad statutory definition may protect merchant vessels whose wartime functions brought them within military service. But if government officials interpret that language narrowly, the apparent flexibility may become meaningless. Worse, a determined commercial salvor may regard uncertain classification as an opportunity rather than a deterrent.
This raises a serious question: is the government preserving ambiguity to strengthen maritime grave protection, or allowing an administrative interpretation to persist that risks undermining the Court of Appeal’s established approach?
I am not suggesting that deliberate disregard of the judgment has been established. Rather, the government must explain how its stated interpretation can be reconciled with binding judicial authority.
The central legal authority is R (Fogg and Ledgard) v Secretary of State for Defence [2006] EWCA Civ 1270. The case concerned Storaa, a British merchant vessel sunk during the Second World War while operating in convoy.
The MOD had declined to designate the vessel under the Protection of Military Remains Act 1986.
The Court of Appeal rejected the Secretary of State’s narrow interpretation of military service and upheld the decision requiring reconsideration.
Several findings are particularly important:
Section 9(2)(a) identifies two alternative grounds: being in service with the armed forces, or being used for their purposes.
A vessel need not have been formally taken over by the Royal Navy.
The vessel’s activities and the degree of military control must be considered in their full factual context.
The relevant circumstances must be examined at the time the vessel was lost.
The test does not automatically include every merchant vessel engaged in wartime convoy service.
The Court of Appeal also recognised that the relevant military control need exist only in some respects.
Importantly, Storaa’s voyage had been directed by the Ministry of War Transport rather than directly by the armed forces.
The legal issue was not simply the civilian or military identity of the vessel. It was the nature of its activities and relationship with the armed forces at the relevant time.
During the House of Lords Report Stage on October 20, 2026, Baroness Antrobus stated that vessels must have been formally requisitioned, utilised for Armed Forces purposes and operating under military command.
This appears to present three cumulative conditions. Yet in Storaa, the Court of Appeal recognised alternative statutory grounds and rejected an interpretation requiring a vessel to have been formally taken over by the navy.
If formal requisition and military command are now being treated as mandatory conditions, the government must identify the statutory provisions and judicial authority supporting that interpretation. The question is especially important because a ministerial statement can influence the administrative approach taken by officials, notwithstanding the wider statutory language.
Without clarification, there is a risk that merchant vessels may continue to be assessed according to criteria that are not supported by the Court of Appeal’s reasoning.
Tilawa demonstrates why this is not merely an academic legal dispute.
On November 23, 1942, the British merchant passenger cargo vessel was torpedoed by Japanese submarine I-29. Some 280 people died.
The vessel was defensively armed, carried DEMS personnel and strategic government cargo, and operated within wartime admiralty arrangements.
Importantly, the cruiser HMS Cornwall had previously escorted Tilawa during the war.
Although Cornwall was not escorting Tilawa on her final voyage, its earlier involvement forms part of the documented wartime history that should be assessed alongside the evidence applicable at the time of loss.
The MOD must examine the full relevant operational evidence rather than rely solely on the vessel’s civilian commercial classification.
The wider wartime record cannot replace the statutory requirement to assess the circumstances at the moment of sinking. Nevertheless, it may provide important evidence of the nature of Admiralty direction, military involvement and operational arrangements.
Tilawa deserves a fresh, reasoned and evidence-based assessment consistent with Storaa.
The suggestion that uncertainty may deter future interference must be tested against practical experience.
In 2017, approximately 2,364 silver bars were recovered from Tilawa.
Questions also remain concerning other material removed from the wreck, including two plates and the ship’s bell reportedly transferred to France. Receiver of Wreck Stephen White has provided written information concerning these objects and has indicated that he lacks the power to compel disclosure of the bell’s present location.
The existence of confidentiality and non-disclosure arrangements (NDAs) associated with activities involving the wreck raises further questions about access to historical records and the reporting of recovered material.
This illustrates several distinct weaknesses:
Uncertain military classification does not necessarily prevent commercial exploration or salvage.
A subsequent determination of protected status does not automatically resolve the ownership or treatment of previously recovered artefacts.
Existing reporting powers may be insufficient to trace significant objects transferred internationally.
Confidentiality arrangements can complicate transparency, even where disclosure to competent authorities may be legally permissible or required.
Protection of a wreck site does not necessarily provide an effective mechanism for protecting material once it has left that site.
The government cannot assume that ambiguity alone is an adequate substitute for clear legal interpretation, appropriate designation, effective enforcement, and international cooperation.
An especially troubling outcome would arise if the government advanced two seemingly contradictory propositions.
The first would be that the undefined term “in military service” provides sufficiently broad protection to discourage commercial salvors from interfering with merchant wrecks. The second would be that the MOD can nevertheless exclude such vessels through a restrictive administrative test requiring formal requisition and military command.
If the term is sufficiently broad to create a meaningful risk of criminal liability for salvors, why is it apparently interpreted so narrowly when descendants seek protection for a particular wartime merchant grave?
Both questions demand a consistent legal answer.
There is, of course, an important distinction between eligibility for designation and the elements of an actual criminal offence. The government should explain precisely when criminal protection arises, whether designation is required, and how an operator is expected to determine the legal status of a wreck. An uncertainty that deters one operator may encourage another to test the limits of the law.
Even if the Armed Forces Bill proceeds without further amendment, the government should answer the following:
Court of Appeal authority: How does the MOD reconcile Baroness Antrobus’ interpretation with Storaa and the alternative grounds in section 9(2)(a)?
Tilawa’s classification: Will the MOD formally reopen its assessment using the complete historical evidence?
Criminal liability: What protection actually applies to potentially qualifying wartime merchant wrecks before formal designation?
Historic salvage: What legal consequences, if any, would follow from a later designation for material previously recovered from Tilawa?
Artefact disclosure: Which authority has powers to require inventories, recovery records, and information about the present location of removed objects?
Confidentiality: Under what circumstances can information subject to an NDA be provided to competent heritage or investigative authorities?
Section 230: When will Lord Coaker provide the promised clarification concerning the Merchant Shipping Act 1995, salvage and sovereign immunity?
International waters: How will protection be enforced where the wreck, salvor, recovered objects and relevant companies are situated in different jurisdictions?
Alternative heritage protection: What mechanism is available for significant British merchant maritime graves that ultimately fall outside the military-service definition?
Administrative accountability: Who will take responsibility for reviewing existing MOD decisions and ensuring that the Court of Appeal’s interpretation is applied consistently?
The protection of Britain’s maritime war graves should not depend upon a strategic gamble that potential salvors will be sufficiently uncertain about the law to leave them undisturbed.
Such uncertainty may sometimes have a deterrent effect. However, deterrence must be supported by a legally coherent interpretation, clear enforcement responsibilities and practical mechanisms for protecting recovered objects.
There is no justification for treating ambiguity as a substitute for addressing the Court of Appeal’s ruling.
The government should expressly confirm that section 9(2)(a) is to be interpreted according to the principles established in Storaa, and that formal requisition and military command are not automatically cumulative prerequisites.
It should then apply those principles to a fresh assessment of Tilawa and other potentially qualifying British wartime merchant vessels.
The government must also address the separate problems of historic salvage, recovered artefacts, confidentiality restrictions, and cross-border protection.
These questions will not disappear when the Armed Forces Bill receives Royal Assent.
The ultimate purpose of maritime grave protection is to respect those who lost their lives and prevent the unjustified disturbance or exploitation of their final resting places.
Tilawa carried passengers, merchant seafarers and wartime personnel. Her loss left 280 dead and generations of families seeking remembrance and recognition.
A law intended to protect Britain’s war dead must not operate in a manner that leaves their graves vulnerable while the authorities debate whether they qualify.
If the government believes ambiguity strengthens protection, it should explain how. If the MOD believes Tilawa does not qualify, it should provide a legally reasoned decision based on the whole relevant wartime record.
And if the existing framework cannot adequately protect artefacts recovered from Britain’s maritime graves, the government should identify and address those shortcomings.
The Court of Appeal has already established that military service must not be construed through an unjustifiably narrow test. Twenty years later, that principle deserves to be applied consistently, not left in administrative uncertainty.
The above is a position statement issued on October 30, 2026, by Tilawa 1942 Heritage Productions on the Armed Forces Bill 2026 and what the group says is the unresolved protection of Britain's maritime war graves.
