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fication in other instances; the notification being defeated, it must have been shown that the actual blockade was again resumed, and the vessel would have been entitled to a warning, if any such blockade had existed when she arrived off the port. The mere act of sailing for the port, under the dubious state of the actual blockade at the time, was deemed insufficient to fix upon the vessel the penalty for breaking the blockade.?
In the above case, a question was raised whether the notification which had issued was not still operative; but the court was of opinion that it could not be so considered, and that a neutral power was not obliged, under such circumstances, to presume the continuance of a blockade, nor to act upon a supposition that the blockade would be resumed by any other competent force. But in a subsequent case, where it was suggested that the blockading squadron had actually returned to its former station off the port, in order to renew the blockade, a question arose whether there had been that notoriety of the fact, arising from the operation of time, or other circumstances, which must be taken to have brought the existence of the blockade to the knowledge of the parties. Among other modes of resolving this question, a prevailing consideration would have been the length of time, in proportion to the distance of the country from which the vessel sailed. But as nothing more came out in evidence than that the squadron came off the port on a certain day, it was held that this would not restore a blockade which had been thus effectually raised, but that it must be renewed again by notification, before foreign nations could be affected with an obligation to observe it. The squadron might return off the port with different intentions. It might arrive there as a fleet of observation merely, or for the purpose of only a qualified blockade. On the other hand, the commander might attempt to connect the two blockades together; but this is what could not be done; and, in order to revive the former blockade, the same form of communication must have been observed de novo that is necessary to esta. blish an original blockade.2 .
3. Besides the knowledge of the party, some act of o violation is essential to a breach of blockade; as either
Some act of violation.
1 Robinson's Adm. Rep. vol. vi. p. 65. The Triheten.
going in or coming out of the port with a cargo laden after the commencement of the blockade.1
Thus, by the edict of the States-General of Holland, of 1630, relative to the blockade of the ports of Flanders, it was ordered that the vessels and goods of neutrals which should be found going in or coming out of the said ports, or so near thereto as to show beyond a doubt that they were endeavoring to run into them; or which, from the documents on board, should appear bound to the said ports, although they should be found at a distance from them, should be confiscated, unless they should, voluntarily, before coming in sight of or being chased by the Dutch ships of war, change their intention, while the thing was yet undone, and alter their course. Bynkershoek, in commenting upon this part of the decree, defends the reasonableness of the provision which affects vessels found so near to the blockaded ports as to show beyond a doubt that they were endeavoring to run into them, upon the ground of legal presumption, with the exception of extreme and well-proved necessity only. Still more reasonable is the infliction of the penalty of confiscation, where the intention is expressly avowed by the papers found on board. The third article of the same edict also subjected to confiscation such vessels and their cargoes as should come out of the said ports, not having been forced into them by stress of weather, although they should be captured at a distance from them, unless they had, after leaving the enemy's port, performed their voyage to a port of their own country, or to some other neutral or free port, in which case they should be exempt from condemnation ; but if, in coming out of the said ports of Flanders, they should be pursued by the Dutch ships of war, and chased into another port, such as their own, or that of their destination, and found on the high seas coming out of such port, in that case they might be captured and condemned. Bynkershoek considers this provision as distinguishing the case of a vessel having broken the blockade, and afterwards terminated her voyage by proceeding voluntarily to her destined port, and that of a vessel chased and compelled to take refuge; which latter might still be captured after leaving the port in which she had taken refuge. And
1 Robinson's Adm. Rep. vol. i. 93. The Betsey.
in conformity with these principles is the more modern law and practice.1
With respect to violating a blockade by coming out with a cargo, the time of shipment is very material; for although it might be hard to refuse a neutral liberty to retire with a cargo already laden, and by that act already become neutral property; yet, after the commencement of a blockade, a neutral cannot be allowed to interpose, in any way, to assist the exportation of the property of the enemy. A neutral ship departing can only take away a cargo bona fide purchased and delivered before the com. mencement of the blockade; if she afterwards take on board a cargo, it is a violation of the blockade. But where a ship was transferred from one neutral merchant to another in a blockaded port, and sailed out in ballast, she was determined not to have violated the blockade. So where goods were sent into the blockaded port before the commencement of the blockade, but reshipped by order of the neutral proprietor, as found unsaleable, during the blockade, they were held entitled to restitution. For the same rule which permits neutrals to withdraw their vessels from a blockaded port extends also, with equal justice, to merchandise sent in before the blockade, and withdrawn bona fide by the neutral proprietor.
After the commencement of a blockade, a neutral is no longer at liberty to make any purchase in that port. Thus, where a ship which had been purchased by a neutral of the enemy in a blockaded port, and sailed on a voyage to the neutral country, had been driven by stress of weather into a belligerent port, where she was seized, she was held liable to condemnation under the general rule. That the vessel had been purchased out of the proceeds of the cargo of another vessel, was considered as an unavailing circumstance on a question of blockade. If the ship . has been purchased in a blockaded port, that alone is the illegal
1 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 11. Robinson's Adm. Rep. vol. ï. p. 128. The Welvaart Van Pillaw. Ibid. vol. iii. p. 147. The Juffrow Maria Schroeder.
2 Robinson's Adm. Rep. vol. i. p. 93. The Betsey. 3 Ibid. p. 150. The Vrow Judith.
4 Ibid. vol. iv. p. 89. The Potsdam. Wheaton's Rep. vol. iii. p. 183. Olivera v. Union Insurance Company.
act, and it is perfectly immaterial out of what funds the purchase was effected. Another distinction taken in argument was, that the vessel had terminated her voyage, and therefore that the penalty would no longer attach. But this was also overruled, because the port into which she had been driven was not represented as forming any part of her original destination. It was therefore impossible to consider this accident as any discontinuance of the voyage, or as a defeasance of the penalty which had been incurred.1
A maritime blockade is not violated by sending goods to the blockaded port, or by bringing them from the same, through the interior canal navigation or land carriage of the country. A blockade may be of different descriptions. A mere maritime blockade, effected by a force operating only at sea, can have no operation upon the interior communications of the port. The legal blockade can extend no further than the actual blockade can be applied. If the place be not invested on the land side, its interior communications with other ports cannot be cut off. If the blockade be rendered imperfect by this rule of construction, it must be ascribed to its physical inadequacy, by which the extent of its legal pretensions is unavoidably limited. But goods shipped in a river, having been previously sent in lighters along the coast from the blockaded port, with the ship under charter-party proceeding also from the blockaded port in ballast to take them on board, were held liable to confiscation. This case is very different from the preceding, because there the communication had been by inland navigation, which was in no manner and in no part of it subject to the blockade.3
The offence incurred by a breach of blockade generally remains during the voyage; but the offence never travels on with the vessel further than to the end of the return voyage, although if she is taken in any part of that voyage, she is taken in delicto. This is deemed reasonable, because no other opportunity is afforded to the belligerent cruisers to vindicate the violated law. But where the blockade has been raised between the time of sailing
1 Robinson's Adm. Rep. vol. iv. Note. The Juffrow Maria Schroeder. 2 Edwards's Adm. Rep. p. 32. The Comet.
3 Robinson's Adm. Rep. vol. iii. p. 297. The Neutralitet. Vol. iv. p. 65. The Stert.
and the capture, the penalty does not attach; because the blockade being gone, the necessity of applying the penalty to prevent future transgression no longer exists. When the blockade is raised, a veil is thrown over every thing that has been done, and the vessel is no longer taken in delicto. The delictum may have been completed at one period, but it is by subsequent events done away.' (a)
1 Robinson's Adm. Rep. vol. ii. p. 128. The Welvaart Van Pillaw. Vol. vi. p. 387. The Lisette. As to how far the act of the master binds the ship-owner in cases of breach of blockade, see the cases collected in Wheaton's Reports, vol.. ži. Appendix, pp. 36-40.
(a) [The prohibition on the trade of neutrals with blockaded ports, in the English and French “declarations” of March, 1854, already noticed, applies in terms to an “ effective blockade, which may be established with an adequate force against the enemy's forts, harbors, or coasts." The further definition of what shall constitute an effective blockade is not given.' The section from the maritime convention of 1801, cited note 3, p. 577, was understood to have adopted, as a concession to the northern powers, in return for their abandonment of more important points of maritime law, the rule of the armed neutralities of 1780 and 1800; which declared that no port should be considered blockaded, unless where the power attacking it should maintain a squadron constantly stationed before it, and sufficiently near to create an evident danger of entering. There is, however, a substitution of the disjunctive for the copulative conjunction in the Convention of 1801 ; so that instead of requiring, to effect a valid blockade, that the ships of the blockading squadron should be “stationary and sufficiently near,” that convention only provides that they shall be “ stationary or sufficiently near." By this minute change, it was contended in parliament, that it was intended to establish, in their full extent, the principles which Great Britain had maintained on this question of maritime law, and which the article, as it stood in the two declarations of armed neutrality, was calculated completely to subvert. Wheaton's Hist. of the Law of Nations, p. 418. The doctrine of Sir William Scott, announced in the text, that a blockade may continue during a temporary absence of the blockading squadron, and which gives to the diplomatic notification of the blockade once made, and even to the pretended notoriety of the fact, an effect independent of the actual presence of the blockading squadron, is contro verted, on principle, by the French publicists, who contend that it must cease by an absence, however occasioned ; and whatever may be the formalities under which it was instituted — that a nation can only execute its laws within its own jurisdiction — that it is upon the supposition that a part of the sea, within the jurisdictional limits of the enemy, and where their squadron is stationed, has been conquered, and that the blockading squadron has succeeded to the occupation of the former possessors, that its interference with the navigation of neutrals can on principle be maintained. Hautefeuille, Droits des Nations Neutres, t. iii. p. 120. Ortolan, Diplomatie de la Mer, chap. 9, tom. . p. 311, 2d edit.