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

vessel encountered and not being painted with these huge red and white bands was to be torpedoed, without quarter, and as far as possible, to use the expression of the German diplomat at Buenos Aires, "spurlos versunken"; whereas, it, therefore, goes without saying that every vessel found in the other waters from the said time on was to be torpedoed; whereas, the vessels which might have desired to make for a Belgian port or to depart therefrom were accordingly directly exposed to being torpedoed in default of being able to show any distinctive mark, and whereas, those which might have shown a distinctive mark sufficiently apparent for a periscope would not have escaped the vigilance of and capture by the Allied patrol boats;

Whereas, to sum up, the situation was such, that as soon as a vessel had left Dutch territorial waters, bound either north or south, it was confronted by an unknown fate in the waters infested by enemy vessels and engines, and not only exposed to torpedoing without the least previous warning of any kind whatsoever by a German submarine, from which not the least quarter could be expected, but also to capture by an Allied naval or aerial patrol;

Whereas, it follows from these considerations that the blockade of the whole Belgian coast and of the port of Bruges in particular, was effective at the time of the transfer of the Roelfina to a neutral flag and that this transfer was null by virtue of the absolute presumption resulting from the Declaration of London;

Whereas, the firm of Nederlandsche Gist en Spiritus Fabriek is not, therefore, justified in availing itself of the sale concluded between it and the German authorities on October 12, 1918, counter to the rights which the Belgian State bases upon the recapture of a vessel that has legally retained enemy character;

As to the claim of the French State made through diplomatic channels;

Whereas, the French State, through the mediation of the Executive Commission of Insurance against War Risks had, in the course of the year 1917 and independently of cargoes, insured the hull of the sailing vessel Roelfina for four-fifths of its agreed value, that is 50,840 francs;

Whereas, by the effect of its condemnation through a German prize tribunal, this ship has acquired enemy character, with regard to the belligerent who effected its recapture subsequently;

Whereas, for reasons developed by the judgments of this council in the cases of the steamships Midsland and Gelderland, as well as in the case of the sailing vessel Agiena, the latter under date of this day, the recapture made by the Belgian State under the aforesaid conditions was not a recapture "but a new prize, not obliging the recaptor to restitution with regard to the former neutral proprietor, definitively deprived of his right";

Whereas, this juridical situation could not be influenced by the circumstance that since the original capture the Dutch shipowner Spliethof P. A. A. de Jonge, proprietor of the vessel, has relinquished it with subrogation of its rights to the underwriter, the French State;

Whereas, in spite of the regret that the Belgian Prize Council may feel in being compelled to reject a claim formulated by a friendly nation which during the recent war has made the most noble effort for the triumph of the cause of civilization, and while leaving it to the Belgian Government to act upon the claim, if it is fitting, the council must needs, under pain of failing in its mission of limiting itself to judge in accordance with law, state in the present case that the French State could not have with regard to the recaptor, the Belgian State, more rights than the neutral shipowner had, whose assign it is; whereas, the recapture affected a neutral vessel at the moment of its original capture, the latter alone having to be considered in this case; and whereas, under any hypothesis, if the vessel should be considered an Allied vessel, its condemnation by the German prize court would not in any less degree hinder the obligation of restitution, as in the case of a neutral vessel;

Whereas, the conditions of the armistice, which were directed exclusively against Germany, could not have had as their object to deprive Belgium, an Allied Power, of the benefits acquired before the armistice by a capture which would bring about the dispossession of the enemy and which represents the exercise of a legitimate right confirmed on this day by a sentence of validity;

For these reasons:

The council having heard the Assistant Commissioner of the Government, De Vos, in his pertinent motions, rejecting all contrary claims as unfounded, and acknowledging to the Nederlandsche Gist en Spiritus Fabriek that it estimates the litigation at more than 20,000 francs, declares legal and valid the capture of the sailing vessel Roelfina, and decrees that this vessel shall belong in its totality to the Belgian State, Expenses as in law.

IN RE THE UNITED COMBED WOOL SPINNING MILLS OF SCHAFFHAUSEN

In the name of the French people, the Council of Prizes.

In view of the decree of March 13, 1915;

1 Translated from MS. in the Department of State.