International Law. A Treatise Volume Ii Part 55

[Footnote 794: The _Neutralitet_ (1805), 6 C. Rob. 30.]

[Footnote 795: The _Spes_ and _Irene_ (1804), 5 C. Rob. 76.]

[Footnote 796: See Holland, _Prize Law_, ---- 135-136.]

The Declaration of London recognises that necessity makes exceptions to the rule that vessels may not enter a blockaded port. Article 7 enacts that "in circ.u.mstances of distress, acknowledged by an officer of the blockading force, a neutral vessel may enter a place under blockade, and subsequently leave it, provided that she has neither discharged nor shipped any cargo there." It has, however, to be kept in view that article 7, firstly, does not define the term _circ.u.mstances of distress_, and, secondly, makes it a condition that the circ.u.mstances concerned must be acknowledged by an officer of the blockading force.

Everything is, therefore, _prima facie_ at any rate, left to the consideration of the respective officer. A vessel in distress will have to signal to the man-of-war of the blockading force which she meets within the area of operations that she intends to enter the blockaded port, and the commander of the man-of-war will have to convince himself that circ.u.mstances of distress really exist, and that no fraud is intended. The commander may deny the condition of distress, and then the vessel may not proceed, although the State whose flag she flies may ask for indemnities in case there really was distress and the vessel was lost or damaged by not being allowed to enter the blockaded port. On the other hand, when once the commander of the man-of-war has acknowledged that the respective vessel is in a condition of distress, it is not in his discretion, but he is in duty bound,[797] to allow her to enter the blockaded port.

[Footnote 797: See Report of the Drafting Committee on article 7.]

[Sidenote: When Egress is not considered Breach of Blockade.]

-- 387. There are a few cases of egress which, according to the hitherto prevailing practice of Great Britain and most other States, were not considered breaches of blockade outwards.[798] Thus, a vessel that was in a blockaded port before the commencement of the blockade[799] was allowed to sail from this port in ballast, as was also a vessel that had entered during a blockade either in ignorance of it or with the permission of the blockading squadron.[800] Thus, further, a vessel the cargo of which was put on board before the commencement of the blockade was allowed to leave the port afterwards unhindered.[801] Thus, again, a vessel obliged by absolute necessity to enter a blockaded port was afterwards allowed to leave it unhindered. And a vessel employed by the diplomatic envoy of a neutral State for the exclusive purpose of sending home from a blockaded port distressed seamen of his nationality was also allowed to pa.s.s unhindered.[802]

[Footnote 798: See Holland, _Prize Law_, -- 130; Twiss, II. -- 113; Phillimore, III. -- 313.]

[Footnote 799: The _Frederick Moltke_ (1798), 1 C. Rob. 86.]

[Footnote 800: The _Juno_ (1799), 2 C. Rob. 116.]

[Footnote 801: The _Vrouw Judith_ (1799), 1 C. Rob. 150.]

[Footnote 802: The _Rose in Bloom_ (1811), 1 Dodson, 55.]

The Declaration of London recognises by article 7--see above, -- 386--that a vessel which, on account of distress, entered a blockaded port, must be allowed to leave it afterwards, provided she has neither discharged nor shipped cargo there. And article 16, second paragraph--see above, -- 384--enacts that a vessel coming out of a blockaded port must be allowed to pa.s.s free, if, through the negligence of the commander of the blockading fleet, no declaration of blockade has been notified to the local authorities, or if, in the declaration as notified, no period has been mentioned within which neutral vessels might come out. But beyond these the Declaration of London does not specify any cases in which egress is not considered breach of blockade.

The International Prize Court will, if established, have to develop a more detailed practice concerning the matter.

[Sidenote: Pa.s.sage through Unblockaded Ca.n.a.l no Breach of Blockade.]

-- 388. A breach of blockade can only be committed by pa.s.sing through the blockaded approach. Therefore, if the maritime approach to a port is blockaded whilst an inland ca.n.a.l leads to another unblockaded port of the enemy or to a neutral port, no breach of blockade is committed by the egress or the ingress of a vessel pa.s.sing such ca.n.a.l for the purpose of reaching the blockaded port.[803]

[Footnote 803: The _Stert_ (1801), 4 C. Rob. 65. See Phillimore, III. -- 314.]

Although the Declaration of London does not mention this point, the International Prize Court would surely decide it as stated, since this decision is based on common sense.

V

CONSEQUENCES OF BREACH OF BLOCKADE

See the literature quoted above at the commencement of -- 368.

[Sidenote: Capture of Blockade-running Vessels.]

-- 389. It is universally recognised that a vessel may be captured for a breach of blockade _in delicto_ only, that means, during the time of an attempt to break it, or of the breach itself. But here again practice as well as theory hitherto have differed much, since there has been no unanimity with regard to the extent of time during which an attempt of breach and the breach itself could be said to be actually continuing.

It has already been stated above in -- 385 that it has been a moot point from what moment a breach of blockade could be said to have been attempted, and that according to the practice of Great Britain and the United States an attempt was to be found in the fact that a vessel destined for a blockaded port was starting on her voyage. It is obvious that the controversy bore upon the question from what point of time a blockade-running vessel must be considered _in delicto_.

But it has been likewise a moot point as to when the period of time during which a blockade-running vessel might be said to be _in delicto_ came to an end. According to Continental theory and practice, such vessel was considered to be _in delicto_ only so long as she was actually on the line of blockade, or, having fled from there, so long as she was pursued by one of the blockading cruisers. On the other hand, according to the practice of Great Britain[804] and the United States,[805] a blockade-running vessel was held to be _in delicto_ so long as she _had not completed her voyage from the blockaded port to the port of her destination and back to the port from which she started originally_, the voyage out and home being considered one voyage. But a vessel was held to be _in delicto_ so long only as the blockade continued, capture being no longer admissible in case the blockade had been raised or had otherwise come to an end.

[Footnote 804: The _Welvaart van Pillaw_ (1799), 2 C. Rob. 128; _General Hamilton_ (1805), 6 C. Rob. 61.]

[Footnote 805: See U.S. Naval War Code, article 44.]

The Declaration of London, when ratified, will settle the controversy, for, according to article 20, a vessel is _in delicto_ so long only as she is pursued by a man-of-war of the blockading force, and she may no longer be captured if the pursuit is abandoned or if the blockade is raised. Stress must be laid on two points. Firstly, the pursuit must be carried out by a man-of-war belonging to the blockading force, and not by any other cruiser. Secondly, a blockade-breaking vessel is liable to capture so long as the pursuit lasts, whether or no she is still within the area of operations; even if for a while she has taken refuge in a neutral port, she may, on coming out, be captured, provided the captor is one of the men-of-war of the blockading force which pursued her and waited for her outside the port of refuge.[806]

[Footnote 806: See the Report of the Drafting Committee on article 20.]

[Sidenote: Penalty for Breach of Blockade.]

-- 390. Capture being effected, the blockade-runner must be sent to a port to be brought before a Prize Court. For this purpose the crew may be temporarily detained, as they will have to serve as witnesses. In former times the crew could be imprisoned, and it is said that even capital[807] punishment could have been p.r.o.nounced against them. But since the eighteenth century this practice of imprisoning the crew has been abandoned, and nowadays the crew may not even be made prisoners of war, but must be released as soon as the Prize Court has p.r.o.nounced its verdict.[808] The only penalty which may be p.r.o.nounced is confiscation of the vessel and the cargo. But the practice[809] of the several States has. .h.i.therto differed much concerning the penalty for breach of blockade. According to British and American practice, confiscation of both vessel and cargo used to take place in case the owners of the vessel were identical with those of the cargo. In case vessel and cargo had not the same owners, confiscation of both took place only when the cargo consisted of contraband of war or the owners knew of the blockade at the time the cargo was shipped for the blockaded port.[810] And it mattered not whether the captured vessel which carried the cargo had herself actually pa.s.sed through the blockaded line, or the breach of blockade was effected through a combined action of lighters and the vessel, the lighters pa.s.sing the line and discharging the cargo into the vessel near the line, or _vice versa_.[811] The cargo alone was confiscated according to the judgments of the American Prize Courts during the Civil War in the case of the _Springbok_ and in similar cases[812] when goods ultimately destined for a blockaded port were sent to a neutral port on a vessel whose owners were ignorant of this ulterior destination of the goods.

[Footnote 807: See Bynkershoek, _Quaest. jur. publ._ I. c. 11.]

[Footnote 808: See Calvo, V. ---- 2897-2898. U.S. Naval War Code, article 45.]

[Footnote 809: See Fauchille, _Blocus_, pp. 357-394: Gessner, pp.

210-214; Perels, -- 51, pp. 276-278.]

[Footnote 810: The _Mercurius_ (1798), 1 C. Rob. 80; the _Columbia_ (1799), 1 C. Rob. 154; the _Alexander_ (1801), 4 C. Rob. 93; the _Adonis_ (1804), 5 C. Rob. 256; the _Exchange_ (1808), Edwards, 39; the _Panaghia Rhomba_ (1858), 12 Moore, P.C. 168--See Phillimore, III. ---- 318-319.]

[Footnote 811: The _Maria_ (1805), 6 C Rob. 201.]

[Footnote 812: See above, -- 385 (4).]

The Declaration of London settles the matter by a very simple rule, for according to article 21 the penalty for blockade-breaking is condemnation of the vessel in all cases, and condemnation of the cargo also, unless the owner proves that at the time of the shipment of the goods the shipper _neither knew nor could have known_ of the intention of the vessel to break the blockade. The case in which the whole or part of the cargo consists of contraband, is not mentioned by article 21, but its condemnation is a matter of course.

CHAPTER IV

CONTRABAND

I

CONCEPTION OF CONTRABAND

Grotius, III. c. 1, -- 5--Bynkershoek, _Quaest. jur. publ._ I. cc, IX-XII--Vattel, III. ---- 111-113--Hall, ---- 236-247--Lawrence, ---- 253-259--Westlake, II. pp. 240-265--Maine, pp. 96-122--Manning, pp.

352-399--Phillimore, III. ---- 226-284--Twiss, II. ---- 121-151--Halleck, II. pp. 214-238--Taylor, ---- 653-666--Walker, ---- 73-75--Wharton, III.

---- 368-375--Moore, VII. ---- 1249--1263--Wheaton, ---- 476-508 --Bluntschli, ---- 801-814--Heffter, ---- 158-161--Geffcken in Holtzendorff, IV. pp. 713-731--Gareis, -- 89--Liszt, -- 42--Ullmann, ---- 193-194--Bonfils, No. 1537-1588'15--Despagnet, Nos. 705-715 _ter_ --Rivier, II pp. 416-423--Calvo, V. ---- 2708-2795--Fiore, III. Nos.

1591-1601, and Code, Nos. 1827-1835--Martens, II. -- 136--Kleen, I. ---- 70-102--Boeck, Nos. 606-659--Pillet, pp. 315-330--Gessner, pp.

70-144--Perels, ---- 44-46--Testa, pp. 201-220--Lawrence, _War_, pp.

140-174--Ortolan, II. pp. 165-213--Hautefeuille, II. pp. 69-172 --Dupuis, Nos. 199-230, and _Guerre_, Nos. 137-171--Bernsten, -- 9--Nippold, II. -- 35--Takahashi, pp. 490-526--Holland, _Prize Law_, ---- 57-87--U.S. Naval War Code, articles 34-36--Heineccius, _De navibus ob vecturam vet.i.tarum mercium commissis dissertatio_ (1740)--Huebner, _De la saisie des batiments neutres_, 2 vols.

(1759)--Valin, _Traite des prises_, 2 vols. (1763)--Martens, _Essai sur les armateurs, les prises, et surtout les reprises_ (1795)--Lampredi, _Del commercio dei populi neutrali in tempo di guerra_ (1801)--Tetens, _Considerations sur les droits reciproques des puissances belligerantes et des puissances neutres sur mer_ (1805)--Pistoye et Duverdy, _Traite des prises maritimes_, 2 vols.

(1855)--Pratt, _The Law of Contraband of War_ (1856)--Moseley, _What is Contraband and what is not?_ (1861)--Upton, _The Law of Nations affecting Commerce during War_ (1863)--Lehmann, _Die Zufuhr von Kriegskonterbandewaren, etc._ (1877)--Kleen, _De contrebande de guerre et des transports interdits aux neutres_ (1893)--Vossen, _Die Konterbande des Krieges_ (1896)--Manceaux, _De la contrebande de guerre_ (1899)--Brochet, _De la contrebande de guerre_ (1900)--Hirsch, _Kriegskonterbande und verbotene Transporte in Kriegszeiten_ (1901)--Pincitore, _Il contrabbando di guerra_ (1902)--Remy, _Theorie de la continuaute du voyage en matiere de blocus et de contrebande de guerre_ (1902)--Knight, _Des etats neutres au point de vue de la contrebande de guerre_ (1903)--Wiegner, _Die Kriegskonterbande_ (1904)--Atherley-Jones, _Commerce in War_ (1906), pp. 1-91 and 253-283--Hold, _Die Kriegskonterbande_ (1907)--Hansemann, _Die Lehre von der einheitlichen Reise im Rechte der Blockade und Kriegskonterbande_ (1910)--Hirschmann, _Das internationale Prisenrecht_ (1912), ---- 24-30--Westlake in _R.I._ II. (1870), pp.

614-655--Kleen in _R.I._ XXV. (1893), pp. 7, 124, 209, 389, and XXVI.