Revisiting the Red Crusader Incident

Robert McLaughlin*

I. Abstract
The May 1961 Red Crusader incident, involving a British trawler and a Danish
warship, has—along with the I’m Alone incident and the MV Saiga case—become a
milestone in the development and crystallisation of law and practice on the use of
force in maritime law enforcement. Yet the incident itself, whilst often referenced,
remains to some extent opaque given the brevity (by today’s standards) of the
Commission of Inquiry report.
This article—based on archival sources as well as academic literature—seeks to
provide a deeper contextual background and analysis of this incident. The article
proceeds in four steps. First, the incident-specific legal background is examined,
focussing in particular upon the fisheries arrangements and agreements in place
between the UK and Denmark/Faroe Islands, and (briefly) the concept of ‘hot
pursuit’ as understood at the time. The second stage of the analysis comprises an
expanded account of the incident itself, informed by both the Red Crusader
Commission of Inquiry report and archival sources, so as to describe in detail the
factual and operational context, as a preliminary to inquiring into its legal
significance. The third stage of analysis is centred upon the Red Crusader
Commission of Inquiry report, identifying the key legal questions and issues dealt
with by the Commission, and their findings thereupon. The final section of the article
then deals with the substantive legacy of the incident in terms of its contribution to
the progressive development of maritime law enforcement norms.
II. Introduction
In May 1961, it was unlikely that any of those involved would have appreciated that
a minor and seemingly insignificant fisheries enforcement-related incident involving
UK and Danish vessels could or would evolve to become an iconic event in the field
of maritime law enforcement operations. Indeed, there was a contemporaneous
wealth of more dramatic incidents during, for example, the first UK–Iceland ‘Cod
War’, which seemed much more likely—even destined—to take on that role. But
rather than Cod War cases of ramming involving warships and fisheries enforcement
vessels, and wider concerns as to the resultant tense relations between two NATO
partner states,1 it has been an incident that involved damage to a Scottish trawler—

* Rob McLaughlin, Professor of Military and Security Law, University of NSW—

Canberra, Australian Defence Force Academy, r.mclaughlin@adfa.edu.au; I am most
grateful for the advice, insights, and corrections of the anonymous reviewers and of
David Letts and Phil Drew, ANU College of Law, Australian National University. All
errors remain my own.
1 D H N Johnson, ‘Notes: Law of the Sea’ (1961) 10 International and Comparative Law
Quarterly 587, 592; the same issues arose during the ‘Second Cod War’ in the mid-

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the Red Crusader—in the sum of £294.14s.0d,2 that ultimately became the mid-
twentieth century’s most significant harbinger of maritime law enforcement norm
refinement.
The Red Crusader incident involved the arrest and subsequent pursuit of a UK
registered trawler (Red Crusader) by a Danish warship exercising Danish and
Faroese fisheries jurisdiction (Niels Ebbesen), over the period 29–31 May 1961.
Along with the I’m Alone incident3 and the MV Saiga (No 2) case,4 it constitutes the
fundamental and enduring triptych that informs the practice of hot pursuit, and the
use of force, in maritime law enforcement operations. The incident is now generally
characterised as an evolutionary step along a consistent and linear spectrum linking
I’m Alone to MV Saiga, in that it is indicative of the trending preference for more
formalised initiation requirements for hot pursuit, and more controlled and gradually
escalated use of force procedures. Yet the incident also stands apart on a number of
points. In this sense, Red Crusader repays independent analysis as more than simply
a step between I’m Alone and MV Saiga (No 2). This is because Red Crusader is also
a case study on how an incident can evolve from indicative to normative; of how an
incident can provoke direct engagement with a neglected or overlooked issue; and of
how an otherwise most judicious report can nevertheless result in persisting
confusion in relation to a key international authorisation—in this case, use of force
in the form of direct fire at or into a fleeing delinquent vessel.
My revisiting of the Red Crusader incident will proceed in four stages. First, the
key incident-specific elements of legal background to the incident will be examined.
To this end, the analysis will focus first upon the specific fisheries arrangements and
agreements in place between the UK and Denmark/Faroe Islands, and then—more
briefly—upon the concept of ‘hot pursuit’ as understood at the time. The second
stage of the analysis comprises an expanded account of the incident itself, informed
by both the Red Crusader Commission of Inquiry report and archival sources. This
section of the article is unashamedly historical, seeking to describe as fully as

1970s—one confidential UK memorandum indicative of this ongoing concern, dated 29

April 1976, noted the ‘strong pressure’ the UK was under to reach an agreement with
Iceland: Cabinet Office Minute: Anglo-Icelandic Fisheries Dispute, 29 April 1976, (UK
National Archives File DEFE 13/1074) 2; another, entitled Iceland—Rules of
Engagement and Move of Designated Fishing Area (Annex to MO 12/3/1) (UK National
Archives File DEFE 13/1074) [6], more specifically recounted ‘the importance of
ensuring that Iceland remains a member of NATO and that the Keflavik base continues
to be available to the Alliance. The effect of what could all too easily be presented as
aggressive action on the part of another NATO member against Iceland could frustrate
these objectives, and the resulting loss would be compounded by the responsibility
which our allies would attribute to the United Kingdom’.
2 Memorial Submitted by the Government of the United Kingdom of Great Britain and
Northern Ireland—Anglo-Danish Commission of Inquiry: Case Concerning Incidents
Affecting the British Trawler ‘Red Crusader’ (UK National Archives File TS 58/577)
[25] (The ‘UK Memorial’).
3 SS I’m Alone (Canada v United States) (Awards) (1935) 3 RIAA 1609; G G Fitzmaurice,
‘The Case of the I’m Alone’ (1936) 17 British Yearbook of International Law 82.
4 MV Saiga (No 2) Case (St Vincent and the Grenadines v Guinea) (Judgment)
(International Tribunal for the Law of the Sea, Case No 2, 1 July 1999) (‘MV Saiga (No
2) Case’).