The refusal by the ministry to consider giving protection to a British merchant ship - sunk by German torpedoes 10 miles off Hastings in 1943 - has been taken to judicial review by the daughters of a Royal Navy gunner, Petty Officer James Varndell, who was among 21 men who died when the vessel went down.
Under the Protection of Military Remains Act 1986, the Secretary of State for Defence has the discretion to protect "any vessel" which at the time of sinking was "in service with, or being used for the purposes of, any of the armed forces" of any nation.
The gunner's daughters, Rosemary Fogg and Valerie Ledgard, who were 12 and four respectively when their father was killed, claim the role which the vessel - the SS Storaa - was performing when she was sunk means that the wreck is entitled to be considered for protection under the Act. However, the MoD does not believe that the vessel qualifies - it has only used the legislation to protect Royal Navy vessels and one German U-boat. In 1985 it sold the salvage rights to divers from Hastings Sub Aqua Association for £150.
When the SS Storaa was sunk, she was transporting military equipment - including tank tracks and military vehicle parts - from London to Cardiff. She was owned by the Ministry of War Transport and was part of an Admiralty-controlled convoy.
In a statement read to the High Court yesterday, Mrs Ledgard said she was very concerned by the prospect of her father's remains being disturbed by divers.
If Petty Officer Varndell's daughters succeed in their action, the wrecks of hundreds of British and other merchant ships would fall overnight under the protection of the Act.
During the Second World War alone, 2,500 British merchant ships were sunk by enemy action - mainly by German U-boats and E-boats. Up to 35,000 British and Commonwealth seamen and almost 4,000 Royal Navy and army gunners died during those attacks.
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