Volume Ii Part 55 (1/2)

[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 s.h.i.+pped 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 s.h.i.+pped 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.]