THE ROELFINA1

Belgian Council of Prizes, 1919

In case No. 54, sailing vessel Roelfina, the Council renders the following decision:

In view of the introductory petition presented by the Commissioner of the Government requesting that the capture of the sailing vessel Roelfina, of about 148 tons, formerly belonging to the firm Spliethof P. A. A. de Jonge of Rotterdam, be declared legal and valid for the benefit of the Belgian State;

In view of the other documents incorporated into the pleadings;

Whereas, M. Gaston Verougstraete, attorney, enrolled in the list of attorneys of Bruges, has presented himself in the name of the incorporated firm Nederlandsche Gist en Spiritus Fabriek;

Having heard the Assistant Commissioner of the Government, De Vos, as well as the said M. Verougstraete, in their respective pleas and motions; Whereas, the sailing vessel Roelfina, flying a Dutch flag, was captured on July 4, 1917, on the high seas by a German submarine and escorted to the port of Bruges, and, whereas, it was declared a good prize by a judgment of the Prize Court of Hamburg;

Whereas, it follows therefrom that by virtue of a regular decision relating to the ownership and the flag, the vessel had become an enemy vessel and as such in principle subject to capture on the part of the Allied Powers from the moment when this decision intervened;

1. With regard to the claims of the Nederlandsche Gist en Spiritus Fabriek ;

Whereas, this firm, of Dutch nationality, having its offices at Delft and a branch at Bruges, maintains that it has become the legitimate owner of the Roelfina by reason of having purchased the ship under date of October 12, 1918, from the German State, through the mediation of the delegated official of the Navy for prize matters, in consideration of the price of 13,000 marks, paid by it under the condition that according to it the absolute correctness of its acquisition should not be placed in doubt; whereas, it declares in effect that it has acted above everything in the interest of the Dutch shipowner Spliethof P. A. A. de Jonge of Rotterdam, dispossessed by the German authority, and to whom it proposed to offer the retrocession of the vessel at cost price without any profit for it; whereas, since the above-mentioned shipowner did not accept this offer, it remained the owner and in possession of the ship;

Whereas, while granting freely that the Nederlansche Gist en Spiritus Fabriek was led to make this acquisition for the disinterested motive that it alleges, while, however, nothing could lead it to believe that the Dutch shipowner would have agreed to run the risks of a repurchase, and while 1 Translated from the Moniteur Belge, 1920, p. 403.

it has been admitted that the German authorities took the initiative in proceeding to the sale of the ship, still the alleged motive, should it be established, would be insufficient to give the intervening operation the character of validity required by international law.

Whereas, in fact, according to a principle which has always been universally admitted by all maritime nations, the transfer in time of war of an enemy vessel to a neutral flag is null in every case when it appears that the transfer was effected with a view to evading the consequences to which the enemy vessel would have been exposed by the action of a belligerent;

Whereas, in the case of the Jan Frederik (1801, 5 C. Rob. 128, 1 English P. C., 434), Lord Stowell, considering, it is true, especially transfer in transitu not followed by delivery, said: "As I have already observed, it has been decided in two or three cases that a transfer can take place in transitu when there is no actual state of war nor any perspective of war involved in the transaction of the parties; but in time of war it is prohibited as a vitiated contract, because it involves a fraud with regard to the rights of the belligerents not only in the particular transaction but in the general opportunity that it necessarily introduces of evading these rights without possibility of being discovered. It is a path which in time of war should be closed, for although honest people might be called to enter upon it with the most innocent intentions, the greater part of those who use it would do so only with sinister intentions and with a view of committing a fraud in regard to the rights of the belligerents"; whereas, it is quite clear that the same motives can be applied to other nations and especially to the case of a ship finding itself in a blockaded port, and these motives have in fact led to the same solution admitted in international law, that is to say, the absolute presumption of nullity of transfer.

"If the state of war or even the simple probability of war", Lord Stowell again says with regard to a transfer in transitu before the opening of hostilities, "leads immediately to the transfer or becomes the basis of a contract which would otherwise not have been entered upon by the vendor, and if it is known that this is the case in the mind of the purchaser, although with regard to him there could also be other concurrent motives, such a contract cannot be held valid, according to the same principle which invalidates a transfer in transitu in time of war. The nature of the contracts is identically the same, each of them aiming to protect property against capture in war, not, to be sure, against capture at the time when the contract was made but against the danger of capture when it is probable that this capture will take place. The object is the same in each case, namely, to secure a guarantee against the same cause, in other words, the two contracts were closed for the same purpose, that is to evade a right of the belligerent, present or eventual. The two contracts are both

closed animo fraudandi and are, in my opinion, rightfully subject to the same rule." (The war of 1914, British Naval Prize Jurisprudence, pp.

20 and 31.)

Whereas, the Declaration of London has adopted in substance the views of international law with regard to transfer, effected in time of war, of an enemy vessel to a neutral flag, such as have just been set forth, namely, that such a transfer is presumed to be null and that it devolves upon him who invokes it to disprove this presumption;

Whereas, Article 56 provides in fact: "The transfer of an enemy vessel to a neutral flag, effected after the outbreak of hostilities, is void unless it is proved that such transfer was not made in order to evade the consequences to which an enemy vessel, as such, is exposed."

Whereas, in the present case not only the Nederlandsche Gist en Spiritus Fabriek has not furnished the proof which devolves upon it, but, whereas, it appears, on the contrary, that the transfer was effected with the manifest object of avoiding the danger of capture to which the Roelfina found itself exposed on the part of the military forces of the Allies while remaining in the waters of Bruges under the German flag, and as a result with a view to evading the consequences which its character as an enemy vessel might bring with it;

Whereas, on October 12, 1918, on which date the German State sold the ship to the Dutch firm, the general military situation, characterized especially by the breaking of the Cambrai-St. Quentin Front, was such that the German military authorities had to consider as probable the evacuation of Flanders and of the Belgian coast, which fact was moreover realized less than a week later as a result of the victorious offensive of the Franco-Belgian troops;

Whereas, the Nederlandsche Gist en Spiritus Fabriek in any case got a clear conception of the immediate motive which led the German authorities to sell the vessel to it, namely, because these authorities would without doubt have experienced difficulty in evacuating the interior waters in due time, and whereas thus, setting aside a concurrent motive which could moreover have guided the said firm and which is irrelevant in the present case, this firm found itself in agreement with the vendor in committing this fraud with respect to the rights of a belligerent, condemned both by international law and the Declaration of London;

Whereas, it was apparently because the said firm took into account the risk of its operation that it paid for the acquisition of the sailing vessel a price of only 13,000 marks, while this vessel was insured before its capture for the amount of 57,840 francs and after its acquisition the firm on its part insured it to the amount of 51,000 francs;

Whereas, according to the provisions of Article 56 of the Declaration of London the absolute presumption of the nullity of the transfer of flag exists if this transfer was effected in a blockaded port;

Whereas, the blockade may extend to the ports and coasts occupied by the enemy (Art. 1); whereas, it must be effective, that is to say, maintained by a force sufficiently large to prohibit in reality the approach to the enemy shore (Art. 2); whereas, the question of determining whether the blockade is effective is a question of fact (Art. 3); whereas, the blockade, in order to be binding, must be declared and made known in conformity with Articles 9, 11 and 16, and especially to the neutral Powers by means of a communication addressed to their governments or their accredited representatives;

Whereas, the rules above enumerated correspond in substance to the principles generally recognized by international law and are in harmony with modern practice as observed by most states;

Whereas, the English, American and Japanese doctrine require with regard to an effective blockade that a region be guarded by a sufficient force to render departure or entrance dangerous, or in other words, to render very probable the capture of vessels attempting entrance or departure, save under particular circumstances, such as storms, violent winds. and necessary absence of the blockading forces; whereas, the distance at which these vessels are stationed is indifferent, provided access be in fact prohibited;

Whereas, according to a declaration in conformity with the stipulations of London and made known in a regular way to the neutral Powers, England decreed the blockading of the whole coast, including the port of Bruges, occupied by the enemy;

Whereas, this blockade was rendered effective and maintained until the armistice by a body of forces and of engines of naval warfare which had the effect of prohibiting in fact approach or departure from the ports of the Belgian coast;

1. Whereas, in the first place, the English mine-fields obstructed the whole North Sea as far as the coast S. E., and later from the entire coast of England as far as the west coast of Holland, leaving free only Dutch territorial waters, which were partially mined by the Dutch, and two narrow passages between England and Holland; whereas, these mine-fields were constantly guarded by numerous English cruisers which continually patrolled the southern part of the North Sea and whose blockading action was thus maintained by the presence of mines; whereas, moreover, in order to be able to navigate in the Dutch territorial waters an authorization and a Dutch pilot were necessary; whereas, this could not be done without certain difficulties in view of the examining vessels of war, located before Westkapelle and before Cadzand, controlling minutely such demands, and whereas, on the other hand, Belgian territorial waters, strewn in part with German mines, were only accessible through the authorization and the assistance of the Germans, necessary to guide a merchantman through the

mines; whereas, also, not a single case is known to the council of a vessel coming from the high seas and passing by Flessingue to go to Zeebrugge, and likewise the council does not know of any ship that entered the latter port coming directly from the open sea;

Whereas, the impediments caused to navigation not only by the Germans but also by the Dutch were of a nature to increase the danger of capture or of destruction for vessels attempting to violate the blockade;

2. Whereas, independently of the mines, the English maintained a close guard by a fleet of war vessels which had their naval bases at Dover, Dunkirk, Calais, Ramsgate, Sheerness, Southend, Harwich, Lowestoft, et cetera, which, created especially for the supervision of these districts, plowed the English Channel and the North Sea; whereas, the English even attacked by night some German torpedo boats which, having attempted to escape from Zeebrugge had to seek refuge at Ymuiden; whereas, at their departure from Ymuiden these torpedo boats were again attacked, during the night, by the English even into the Dutch territorial waters;

3. Whereas, the whole Belgian coast was frequently subjected to terrible bombardments at a long distance by the English monitors which, constructed especially for the bombardment of the Belgian coast, were equipped with 15-inch (38 cm.) cannon;

Whereas, although a violation of the blockade could only expose a vessel to seizure, it is hardly doubtful but that under these conditions of unsafety for navigation no vessel of commerce would have ventured to attempt entrance to or exit from the port;

4. Whereas, the Allies were still patrolling the whole Belgian coast both by day and night by means of formidable aeroplanes and airships, a new arm of the navy used as such by the Germans themselves;

5. Whereas, English submarines contributed equally to the blockade of the Belgian coasts;

6. Whereas, moreover, Germany, by its barbarous and inhuman practices of unrestricted submarine warfare, rendered safe navigation on the high seas impossible in fact; whereas, the German submarines, with almost rare exceptions, sank without distinction of flag, whether belligerent or neutral, all vessels which they encountered and without the least warning and without exposing themselves; whereas, when the unrestricted submarine warfare was declared (early in 1917), a number of neutral vessels found themselves in English waters; whereas, they were destined to neutral countries washed by the North Sea and its abuttals; whereas, after they had waited more than two months before being able to obtain the permission of the Germans to effect the passage of the North Sea, this permission was finally granted to them on days set in advance and with the understanding that the exterior sides of the vessels be previously painted with huge red and white vertical bands so as to be easily recognizable from the limited view of the periscope of a German submarine; whereas, every