International Law. A Treatise Volume Ii Part 54

BREACH OF BLOCKADE

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

[Sidenote: Definition of Breach of Blockade.]

-- 383. Breach or violation of blockade is the unallowed ingress or egress of a vessel in spite of the blockade. The attempted breach is, so far as punishment is concerned, treated in the same way as the consummated breach, but the practice of States has. .h.i.therto differed with regard to the question at what time and by what act an attempt to break a blockade commences.

It must be specially observed that the blockade-runner violates International Law as little as the contraband carrier. Both (see below, -- 398) violate injunctions of the belligerent concerned.

[Sidenote: No Breach without Notice of Blockade.]

-- 384. Since breach of blockade is, from the standpoint of the blockading belligerent, a criminal act, knowledge on the part of a vessel of the existence of a blockade is essential for making her egress or ingress a breach of blockade.

It is for this reason that Continental theory and practice have never considered a blockade established without local and diplomatic notification, so that every vessel might have, or might be supposed to have, notice of the existence of a blockade. And for the same reason some States, as France and Italy, have never considered a vessel to have committed a breach of blockade unless a special warning was given her before her attempted ingress by one of the blockading cruisers stopping her and recording the warning upon her log-book.[771]

[Footnote 771: See above, -- 376.]

British, American, and j.a.panese practice regarding the necessary knowledge of the existence of a blockade on the part of a vessel has always made a distinction between actual and constructive notice, no breach of blockade having been held to exist without either the one or the other.[772] Actual notice has been considered knowledge acquired by a direct warning from one of the blockading men-of-war or knowledge acquired from any other public or private source of information.

Constructive knowledge has been presumed knowledge of the blockade on the part of a vessel on the ground either of notoriety or of diplomatic notification. The existence of a blockade has always been presumed to be notorious to vessels within the blockaded ports, but it has been a question of fact whether it was notorious to other vessels. And knowledge of the existence of a blockade has always been presumed on the part of a vessel in case sufficient time had elapsed after the home State of the vessel had received diplomatic notification of the blockade, so that it could inform thereof all vessels sailing under its flag, whether or no they had actually received, or taken notice of, the information.[773]

[Footnote 772: See Holland, _Prize Law_, ---- 107, 114-127; U.S. Naval War Code, article 39; j.a.panese Prize Law, article 30.]

[Footnote 773: The _Vrouw Judith_ (1799), 1 C. Rob. 150; the _Neptunus_ (1799), 2 C. Rob. 110; the _Calypso_ (1799), 2 C. Rob. 298; the _Neptunus_ (1800), 3 C. Rob. 173; the _Hoffnung_ (1805), 6 C. Rob. 112.]

The Declaration of London follows, to a certain extent, British, American, and j.a.panese practice, but differs chiefly in the presumption that knowledge of a blockade is never absolute, but may in every case be reb.u.t.ted. Article 14 enacts that "the liability of a neutral vessel to capture for breach of blockade is contingent on her knowledge, actual or presumptive, of the blockade." Knowledge of the blockade is presumed, _failing proof to the contrary_, in case the vessel has left a neutral port subsequent to the notification of the blockade to the Power to which such port belongs, and provided that the notification was made in sufficient time (article 15). But in case a neutral vessel _approaching_ a blockaded port has neither actual nor presumptive knowledge of the blockade, she is not considered _in delicto_, and notification must be made to her by recording a warning on her log-book, stating the day and hour and the geographical position of the vessel at the time (article 16, first paragraph). Further, if a neutral vessel is _coming out_ of a blockaded port, she must be allowed to pa.s.s free, in case, through the negligence of the officer commanding the blockading fleet, no declaration of blockade was notified to the local authorities, or in case, in the declaration as notified, no period was mentioned within which neutral vessels might come out (article 16, second paragraph).

[Sidenote: The former practice as to what const.i.tutes an Attempt to break Blockade.]

-- 385. The practice of States as well as the opinions of writers have hitherto differed much regarding such acts of a vessel as const.i.tute an attempt to break blockade.

(1) The Second Armed Neutrality of 1800 intended to restrict an attempt to break blockade to the employment of force or ruse by a vessel on the line of blockade for the purpose of pa.s.sing through. This was, on the whole, the practice of France, which moreover, as stated before, required that the vessel should previous to the attempt have received special warning from one of the blockading men-of-war. Many writers[774]

took the same standpoint.

(2) The practice of other States, as j.a.pan, approved by many writers,[775] went beyond this and considered it an attempt to break blockade when a vessel, with or without force or ruse, endeavoured to pa.s.s the line of blockade. This practice frequently saw an attempt complete in the fact that a vessel destined for a blockaded place was found anchoring or cruising near the line of blockade.

(3) The practice of Great Britain and the United States of America went furthest, since it considered it an attempted breach of blockade when a vessel, not destined according to her s.h.i.+p papers for a blockaded port, was found near it and steering for it; and, further, when a vessel destined for a port, the blockade of which was diplomatically notified, started on her journey knowing that the blockade had not been raised, except when the port from which the vessel sailed was so distant from the scene of war as to justify her master in starting for a destination known to be blockaded, on the chance of finding that the blockade had been removed, and with an intention of changing her destination should that not prove to be the case.[776] This practice, further, applied the doctrine of continuous voyages[777] to blockade, for it considered an attempt of breach of blockade to have been committed by such vessel as, although ostensibly destined for a neutral or an unblockaded port, is in reality intended, after touching there, to go on to a blockaded port.[778]

(4) During the Civil War the American Prize Courts carried the practice further by condemning such vessels for breach of blockade as knowingly carried to a neutral port cargo ultimately destined for a blockaded port, and by condemning for breach of blockade such cargo, but not the vessel, as was ultimately destined for a blockaded port, when the carrying vessel was ignorant of this ulterior destination of the cargo.

Thus the _Bermuda_,[779] a British vessel with a cargo, part of which was, in the opinion of the American Courts, ultimately destined for the blockaded ports of the Confederate States, was seized on her voyage to the neutral British port of Na.s.sau, in the Bahama Islands, and condemned for breach of blockade by the American Courts. The same happened to the British vessel _Stephen Hart_,[780] which was seized on her voyage to the neutral port of Cardenas, in Cuba. And in the famous case of the _Springbok_,[781] a British vessel also destined for Na.s.sau, in the Bahama Islands, which was seized on her voyage to this neutral British port, the cargo alone was finally condemned for breach of blockade, since, in the opinion of the Court, the vessel was not cognisant that the cargo was intended to reach a blockaded port. The same happened to the cargo of the British vessel _Peterhoff_[782] destined for the neutral port of Matamaros, in Mexico. The British Government declined to intervene in favour of the British owners of the respective vessels and cargoes.[783]

[Footnote 774: See Hautefeuille, II. p. 134; Kleen, I. -- 137; Gessner, p. 202; Dupuis, No. 185; Fauchille, _Blocus_, p. 322.]

[Footnote 775: See Bluntschli, -- 835; Perels, -- 51; Geffcken in Holtzendorff, IV. p. 763; Rivier, II. p. 431. See also -- 25 of the Prussian Regulations (1864) concerning Naval Prizes, and article 31 of the j.a.panese Naval Prize Law.]

[Footnote 776: See Holland, _Prize Law_, -- 133, and U.S. Naval War Code, article 42; the _Betsey_ (1799), 1 C. Rob. 332.]

[Footnote 777: On this doctrine, see below, -- 400, p. 499, note 1.]

[Footnote 778: See Holland, _Prize Law_, -- 134, and the case of the _James Cook_ (1810), Edwards, 261.]

[Footnote 779: 3 Wallace, -- 14.]

[Footnote 780: 3 Wallace, 559.]

[Footnote 781: 5 Wallace, 1.]

[Footnote 782: 5 Wallace, 28.]

[Footnote 783: See _Parliamentary Papers_, Miscellaneous, N. 1 (1900), "Correspondence regarding the Seizure of the British Vessels _Springbok_ and _Peterhoff_ by the United States Cruisers in 1863."]

It is true that the majority of authorities[784] a.s.sert the illegality of these judgments of the American Prize Courts, but it is a fact that Great Britain at the time recognised as correct the principles which are the basis of these judgments.

[Footnote 784: See, for instance, Holland, _Prize Law_, p. 38, note 2; Phillimore, III. -- 298; Twiss, _Belligerent Right on the High Seas_ (1884), p. 19; Hall, -- 263; Gessner, _Kriegfuhrende und neutrale Machte_ (1877), pp. 95-100; Bluntschli, -- 835; Perels, -- 51; Fauchille, pp.

333-344; Martens, II. -- 124. See also Wharton, III. -- 362, p. 401, and Moore, VII. -- 1276.]

[Sidenote: What const.i.tutes an Attempt to break Blockade according to the Declaration of London.]

-- 385_a_. The Declaration of London proposes a settlement of this controversial matter by enacting in article 17 that "neutral vessels may not be captured for breach of blockade except within the area of operations of the men-of-war detailed to render the blockade effective," and in article 19 that "whatever may be the ulterior destination of a vessel or of her cargo, she may not be captured for breach of blockade, if, at the moment, she is on the way to a non-blockaded port."

Accordingly, a neutral vessel, to be guilty of an attempt to break blockade, must actually have entered the _area of operations_ (_rayon d'action_) of the blockading fleet. This _area of operations_ is a question of fact in each case of a blockade. "When a Government decides to undertake blockading operations against some part of the enemy coast it details a certain number of men-of-war to take part in the blockade, and entrusts the command to an officer whose duty it is to use them for the purpose of making the blockade effective. The commander of the naval force thus formed posts the vessels at his disposal according to the line of the coast and the geographical position of the blockaded places, and instructs each vessel as to the part which she has to play, and especially as to the zone which she is to watch. All the zones watched taken together and so organised as to make the blockade effective, form the area of operations of the blockading force."[785]

[Footnote 785: Report of the Drafting Committee on article 17.]

But the fact alone that a neutral vessel has entered the area of operations is not sufficient to justify her capture, she must also be destined and be on her way to the blockaded port. If she pa.s.ses through the area of operations without being destined and on her way to the blockaded port, she is not attempting to break the blockade. Even should the ulterior destination of a vessel or her cargo be the blockaded port, she is not considered to attempt to break the blockade, if, at the moment of the visitation, she is really on her way to a non-blockaded port (article 19). However, she must really, and not only apparently, be on her way to a non-blockaded port; if it can be proved that in reality her immediate destination is the blockaded port and that she only feigns to be destined for a non-blockaded port, she may be captured, for she is actually attempting to break the blockade.[786]

[Footnote 786: See the Report of the Drafting Committee on article 19.]

From these stipulations of the Declaration of London it becomes quite apparent that the application to blockade of the doctrine of continuous voyage in any form is not admissible.

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

-- 386. Although blockade inwards interdicts ingress to all vessels, if not especially licensed,[787] necessity makes exceptions to the rule.

[Footnote 787: See above, -- 370.]

According to the practice which has. .h.i.therto been quite general, whenever a vessel either by need of repairs,[788] stress of weather,[789] want of water[790] or provisions, or upon any other ground was absolutely obliged to enter a blockaded port, such ingress did not const.i.tute a breach of blockade. On the other hand, according to the British practice at any rate, ingress did not cease to be breach of blockade if caused by intoxication of the master,[791] ignorance[792] of the coast, loss of compa.s.s,[793] endeavour to get a pilot,[794] and the like, or an attempt to ascertain[795] whether the blockade was raised.[796]

[Footnote 788: The _Charlotta_ (1810), Edwards, 252.]

[Footnote 789: The _Fortuna_ (1803), 5 C. Rob. 27.]

[Footnote 790: The _Hurtige Hanne_ (1799), 2 C. Rob. 124.]

[Footnote 791: The _Shepherdess_ (1804), 5 C. Rob. 262.]

[Footnote 792: The _Adonis_ (1804), 5 C. Rob. 256.]

[Footnote 793: The _Elizabeth_ (1810), Edwards, 198.]