Volume Ii Part 54 (1/2)

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.]