27 February 1922

international commission of inquiry

     
  Loss of the Dutch Steamer “Tubantia”  
     
  Report Concerning the Loss of the Dutch Steamer "Tubantia" by the International Commission of Inquiry at the Hague  
     

Germany

 

v. 

The Netherlands

 

REPORT

 
 
BEFORE: PRESIDENT: M. Hoffmann, formerly member of the Swiss Federal Council, President
COMMISSIONERS: M. Surie, Rear Admiral in Reserve of the Dutch Navy; M. Ravn, Naval Captain, Director of the Hydrographic Service of the Danish Navy; M. Unger, Frigate Captain of the Swedish Navy; M. Gayer, Corvette Captain of the German Navy
 
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Citation: Loss of the Dutch Steamer “Tubantia” (Germany v. The Netherlands), (1922) 16 Am. J. Int’l L. 485 (I.C.I. Report of 27 Feb. 1922)

Represented By:

GERMANY: M. Karl von Mueller, Naval Captain in Reserve
THE NETHERLANDS: Professor A. A. H. Struycken, member of the Council of State, member of the Permanent Court of Arbitration, Agent, and M. Canters, Naval Captain, Director of the Torpedo Factory, Counsel
 

   
 

[p485]

Considering that by a convention of inquiry concluded at Berlin on March 30,1921, the Government of the German Reich and the Government of Her Majesty the Queen of The Netherlands, respectively signatories of The Hague Convention of October 18, 1907, for the Pacific Settlement of International Disputes, have agreed to submit to an international commission of inquiry constituted in accordance with the provisions of Chapter III of the said convention, the question of ascertaining what was the cause of the loss of the Dutch steamer Tubantia which occurred on March 16, 1916;

Considering that according to the terms of the said convention of inquiry, the International Commission of Inquiry has been composed of:

M. Hoffmann, formerly member of the Swiss Federal Council, President;
M. Surie, Rear Admiral in Reserve of the Dutch Navy;
M. Ravn, Naval Captain, Director of the Hydrographic Service of the Danish Navy;
M. Unger, Frigate Captain of the Swedish Navy;
M. Gayer, Corvette Captain of the German Navy;

Considering that the two governments have respectively named as agents and counsel,

The Government of the German Reich: M. Karl von Mueller, Naval Captain in Reserve;

The Government of Her Majesty the Queen of The Netherlands: Professor A. A. H. Struycken, member of the Council of State, member of the Permanent Court of Arbitration, Agent, and M. Canters, Naval Captain, Director of the Torpedo Factory, Counsel;

Considering that the Dutch and German cases have been regularly deposited in the International Bureau of the Permanent Court of Arbitration on July 27 and 29, 1921, respectively;

Considering that the Dutch and German counter-cases have been regularly deposited in the International Bureau of the Permanent Court of Arbitration on September 23 and October 14, 1921, respectively;

Considering that the examination being closed, the International Commission of Inquiry, constituted as stated above, has met at The Hague in the Palace of the Permanent Court of Arbitration on January 18, 1922;

Considering that since the parties have presented all their explanations and proofs and the witnesses and experts have been heard, the President of the Commission has pronounced the inquiry closed;

The International Commission of Inquiry has drawn up the following report: [p486]

I

1. On March 15, 1916, the steamer Tubantia, belonging to the incorporated company Koninklijke Hollandsche Lloyd, left Amsterdam with South America as its destination. It had eighty passengers on board; the crew was composed of two hundred and eighty persons. According to the manifest the cargo contained no explosives.

At 6:15 p.m. the steamer was in the open sea and steered for the light-ship Maas.

The vessel was sufficiently illuminated; beside the prescribed lights of position two are lamps illuminated the name "Tubantia, Amsterdam" on the planking and two other arc lamps illuminated the name on the plate.

Furthermore, the illuminated plate had been raised between the two funnels and all the lights on the bridge and those in the cabins were lit as far as possible.

At 9:59 p.m. the vessel passed the light-ship Maas. The weather is indicated as follows: misty horizon, visibility from four to five marine miles, gentle east-north-east wind, choppy sea. The speed of the vessel maintained up to the moment of the explosion was from nine to ten marine miles.

2. At 2 a.m. the captain ordered everything prepared for casting anchor near the Nord-Hinder. At 2:15 the sounding was made. The captain went to the map room in order to control the sounding.

The fourth officer Van Leuven was on the port bridge near the telegraph, the first officer Vreugdenhil was at starboard occupied with giving his orders to the machine room. At 2:20 the fourth officer Van Leuven suddenly observed a streak in the water, approaching the vessel in a direct line at about six points. He thought that it was the wake of a torpedo and a moment before the explosion he cried: "Look there!" Immediately afterward the explosion took place.

The same observation of a white thin streak moving with great rapidity in the direction of the vessel was made by the lookout-man, P. Groot. He claims that he immediately recognized it as the wake of a torpedo, a phenomenon that he says he has seen repeatedly during the practice of launching torpedoes. He announced to the first officer immediately after the explosion that the vessel had been hit by a torpedo of which he had seen the wake moving toward the ship.

The exclamation: "Look there!", was also heard by the first officer Vreugdenhil and the third officer De Vos, as well as by the captain, Wijtsma, who was in the map room on the bridge, the doors of the room being open.

It must be conceded to the agent of the German Government that the depositions of the witnesses do not agree on all points, and also that in different cross-examinations of the same witnesses a certain amplification may be noted in the addition of details. But neither this experience, which is frequent, nor the general consideration that in observations of this kind [p487] examples of autosuggestion are easily found, can, according to the opinion of the Commission of Inquiry, detract from their value. The depositions of the witnesses are clear and positive, they do not contradict each other, and what some say they saw is confirmed in a manner worthy of belief by what others heard immediately after the catastrophe.

3. According to the concurring depositions of the fourth mechanic Wouters and of Koger, who was in charge of the bunkers, the shock was terrible and caused the whole ship to tremble. Wouters, who was on guard in the engine room, had gone with Koger to the upper coal bunker at starboard in order to open the hatchway which was blocked by coal. He claims that he saw a faint light followed by a powerful detonation. A stream of water entered and drenched the two men, who rescued themselves through the hatchway, which they succeeded in opening after a great effort.

4. The ship sank at 6:53 a.m. The place of the wreck was fixed at 51° 48' 40" north latitude and 2° 50' 15" east longitude.

II

5. In several boats of the Tubantia there was found a certain number of scraps of metal which have been recognized as being parts of a torpedo.

Boats No. 15 and 20 were picked up on March 16 by the steamer Batavier III and were towed to Rotterdam, where they were anchored with the Batavier III at its customary wharf at Boompjes. One or two days later they were towed by the Brinio II to Schiehaven. There Captain Bustraan examined them and found among the fragments a piece of bronze which was recognized as forming part of a 45 centimetre torpedo (a piece of the Schwartzkopf compressed air chamber).

On April 1 and 12, 1916, two other boats of the Tubantia were found, No. 23 floating near Terschelling, and No. 17 cast ashore at Callandsoog. In these two boats there were found among other things two scraps of copper on which the number 2033 was impressed. As appears from the declaration of the Chief of the German Admiralty of May 11, 1916, these scraps have been recognized as being fragments of the bronze torpedo C 45/91 No. 2033.

The two boats No. 23 and 17 were immediately placed under guard.

The bronze torpedo C 45/91 No. 2033 was part of the armament of the submarine U. B. 13.

6. From the depositions of the officers and sailors of the Tubantia, according to which they saw the wake of the torpedo immediately before the explosion, and from the fact that the fragments of torpedo No. 2033 belonging to the armament of the U. B. 13, were found in the boats of the Tubantia, it appears that the U. B. 13 launched the torpedo which caused the explosion on board the Tubantia.

The agent of the German Government claims, on the other hand, that the submarine U. B. 13 was during the critical night from March 15 to March 16, 1916, at 3:35 a.m. at 51° 52' north latitude and 2° 23' east longitude, that is, [p488] a distance, of 12 marine miles from the position which the light-ship Nord-Hinder had at the time, and that it launched a torpedo against a boat which bore no light except at the head of the mast.

This assertion is based upon an entry in the logbook of the U. B. 13, an entry which, however, can be produced only in the form of a non-authentic copy. The route card, signed by the commander of the U. B. 13, which presents details agreeing with these statements, is in existence, to be sure, but the original of the commander's report was destroyed with the majority of the documents relative to the submarine war, in part during the retreat from Flanders, in part during the revolution. The German Government is, therefore, not able to furnish authentic proof showing the contradiction of dates and the indication of the place with date and place of the sinking of the Tubantia.

Furthermore, these contradictions would hardly be conclusive.

According to the depositions of the officers of the Tubantia, the explosion took place at 2:20 a.m. This indication is given by astronomical time. Captain Witjsma has deposed that when he arrived in the open sea the clocks were regulated according to astronomical time, as is usually done in the Dutch merchant fleet. The entry in the copy of the logbook is based on Central European time. The difference is not so considerable that it might not be ascribed to errors on one side or the other in observations or annotations.

The difference between the indications of place is more considerable. The Tubantia was sunk at 51° 48' 40" north latitude and 2° 50' 15" east longitude. This calculation, made at the time of the examination of the wreck, cannot be subject to any doubt. According to the annotations in the copy of the logbook, in agreement with the route card, the unilluminated vessel was torpedoed at 51° 52' north latitude and 2° 23' east longitude.

Apart from certain difficulties inherent in a determination of location demanding such great precision, the experiences of the war show that the possibility of errors in navigation is by no means excluded.

III

7. According to the indications contained in the copy of the logbook of the U. B. 13, the latter torpedoed on March 16 a steamer of about 2000 to 3000 tons which, save for a light on its mast, bore no light at all, and not the Tubantia which without contradiction was sufficiently illuminated. One would be inclined to explain this error by the fog which according to the wit-nesses was so dense that some boats could no longer perceive the lights of the Tubantia, and that it was necessary to sound the bell for fear of a collision. But it will be objected with good reason that at the moment in question, that is to say, immediately before the explosion, the captain estimated the visibility at four marine miles. Nevertheless, it is not absolutely excluded that perhaps the lower part of the vessel might have been hidden by one of those [p489] intermittent fogs so frequent in the North Sea, so that only the light on the mast was visible.

But rejecting this hypothesis and admitting that an error of the captain of the U. B. 13 is not impossible, the Commission can not consider this fact as decisive proof that the Tubantia was not torpedoed. It must take account of the possibility that the Commander of the U. B. 13 may have acted in violation of the instructions and orders of his superiors and against the intentions and decisions of the German Government.

It is true that the indications of the logbook are confirmed to a certain degree by the depositions of the witness Dehmel. He believes that he remembers that in the critical night a vessel of medium size and entirely without lights was torpedoed, and he denies in this connection that at this time, or in general as long as he was a sailor on board the IT. B. 13, a large vessel sufficiently lighted was torpedoed. But the manner in which this witness has attempted to offer his testimony in favor of a foreign government, is not likely to inspire the necessary confidence. Moreover, he has served a term in prison.

IV

8. According to the brief of the German Government, the torpedo C 45/91 No. 2033 had already been launched by the submarine 13 (Commander, the Naval Lieutenant Neumann) on March 6, 1916, at 4:43 p.m., against an English destroyer about three miles north-east of the light-ship Nord-Hinder; the shot missed its mark. The brief is based upon an annotation in the logbook and upon the extract of the list of torpedoes employed. The Naval Lieutenant Neumann who commanded the U. B. 13 on March 6, 1916, has confirmed this annotation and has declared that he would consider an error or a change of number on the torpedo as almost impossible. Since there is no indication that the torpedo No. 2033 was recovered, the agent of the German Government concludes that the Tubantia could have been hit by this same torpedo on March 16,1916, if as the result of a mechanical fault the torpedo launched on March 6 did not sink but continued to float and was struck in this state by the Tubantia. The agent of the Dutch Government replies that a torpedo launched on March 6, at 4:43 p.m., three miles north-east of the light-ship Nord-Hinder could not have been found on March 16 between midnight and 4 a.m. in the neighborhood where the Tubantia foundered, but that it would have reached by that time a distance of at least 19 marine miles from the point of the disaster. This assertion is based upon the reports of the expert of the Dutch Government, Dr. van der Stok, Director of the Royal Netherlands Institute of Meteorology. His report and the declarations that he has made before the Commission are based on the fact, established by numerous observations and measurements, to the effect that on the Dutch coast there is a progressive movement of the surface water in the direction of north and north-east. While taking account of the effect of periodical tidal currents, he estimates that as a result of this progressive [p490] movement a torpedo launched near the light-ship Nord-Hinder and remaining afloat would have been borne in a northerly direction to a great distance from the place of the wreck.

The expert of the German Government, Professor Dr. Mecking, has claimed that in spite of the existence of the progressive movement of the water, experiments have shown that floating bodies have moved in a direction against the progressive current. He has denied that the calculations of Dr. van der Stok are conclusive in the present case, because the method applied by him does not show the accuracy of the methods of modern oceanographic science. According to him, these observations would have had to be much more numerous and they would have had to be made at the precise depth where the torpedo floated.

Professor Mecking is of the opinion that account would have to be taken not only of the influence of the current upon the floating body, but above all of the influence of the wind; this latter influence, he says, would be considerable.

The Commission has been unable to arrive at the conviction that calculations of this nature could be conclusive and could furnish proof for an object of concrete observation, and it believes that in spite of the most minute observations of currents and winds it will not be possible to find a torpedo which has been launched and has remained afloat for ten days at the point where it ought to be according to the calculations.

The Commission cannot, consequently, decide that it is impossible that a floating torpedo struck the Tubantia at the point where this vessel sank.

9. The assertion whereby the Tubantia was struck by a floating torpedo is combatted by the agent of the Dutch Government; he affirms that, in view of the size and form of the hole, the Tubantia was not struck at the water line but two or three meters below it. According to the report of the diver, the hole extends in its entire breadth as far as the planking of the surface which was torn away for several feet. The maximum size of the hole is 12 meters. The hole terminates in an angle at the foot of the "T" of the word Amsterdam. The bridge, the base and the interior bulkhead of the lower lateral bunker B were torn away to a great extent. In the ceiling of the upper lateral bunker C, and consequently, in the upper bridge there was a large-hole.

The expert of the German Government Techel, doctor of engineering hon. causa, in oral explanations, has observed that it follows from experiences in the German Navy that when a torpedo moving at a normal depth explodes, the damage ceases near the water line. It has been possible to determine this damage in the case of a torpedo which burst about a meter under the water line. It follows that a torpedo floating at a slight depth can have only comparatively insignificant effects upward. The expert believes that the explosion took place about a meter under the water line. According to him this version is corroborated by the fact that fragments of bronze were found [p491] in four boats and that, consequently, still other fragments, that is a comparatively large number, struck above the water line.

The Commission does not deem it possible to fix the point where the explosion of the torpedo took place by judging only by the size and form of the hole. Nevertheless, in view of the size of the hole and the importance of the damage within the ship, it seems to the Commission more likely that the explosion of the torpedo took place several meters below the water line.

10. The thesis developed by the agent of the German Government according to which the Tubantia was struck by a floating torpedo, a thesis based on the indication of No. 2033 in the list of torpedoes that had been launched, is disputed by the agent of the Dutch Government, who opposes it with the possibility of an error. In truth, it must be admitted that such an error could easily be made, given the fact that this number had to be transcribed several times. The supposition that the error would have been found during the inspection of the torpedoes at Kiel and that then a claim would have been made upon the commander of the U. B. 13 is hardly compatible with the difficulties and exigencies of the war. It may be readily understood that errors could creep into the registers of torpedoes that had been launched.

However this may be, the fact that the same torpedo number is found in the list of torpedoes launched and on the torpedo fragments found in the boats of the Tubantia is not of sufficient importance to invalidate the depositions made by the officers and sailors of the said vessel.

V

11. In the last place, the Commission has had to consider the possibility of the torpedoing of the Tubantia by a vessel belonging to a power hostile to Germany.

Several witnesses relate that some hours after the catastrophe of the Tubantia the occupants of the life boats perceived a group of lights in the direction opposite that of the light-ship Nord-Hinder. Since the submarines belonging to the flotilla stationed at Zeebrugge had no search-lights on board, the presence of a non-German vessel of war must be concluded.

However, this fact can in no way justify the suspicion that some would wish to deduce therefrom. It is not at all surprising that after the explosion a non-German vessel of war should have approached the place of the disaster and should have desired to throw its search-lights about in the vicinity.

Moreover, there is not the least proof for admitting that a vessel of a power hostile to Germany torpedoed the Tubantia and that, subsequently, fragments of the German torpedo No. 2033, recovered by the enemy vessel, were surreptitiously placed in the boats. It is evident that such a procedure, as complicated as it is perfidious and destined to prejudice Germany in the eyes of the neutral countries and to provoke anti-German feelings there, could never be presumed. In default of all proof this hypothesis must be discarded. [p492]

VI

12. After weighing all the proofs, the Commission has reached the conviction that the Tubantia was sunk on March 16, 1916, by the explosion of a torpedo launched by a German submarine. The question of determining whether the torpedoing took place knowingly or as the result of an error of the commander of the submarine must remain in suspense. It has not been possible to determine that the loss of the Tubantia was caused by striking a torpedo that had remained afloat. Although it cannot be denied that a certain number of indications militate in favor of the latter possibility, the Commission, after examining them conscientiously and comparing them with the other proofs, cannot recognize that these indications are conclusive and have the force of proof.

No indication permitting the assumption of any other cause for the loss of the Tubantia could be produced.

Done at The Hague, in the Palace of the Permanent Court of Arbitration, on January 27,1922.

The Commissioners:

Hoffmann, President.
Ravn.
Surie.
Unger.
Gayer.

 
   

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