CHAPTER III BLOCKADE
I CONCEPTION OF BLOCKADE
Grotius, III. c. 1, § 5—Bynkershoek, Quaest. jur. publ. I. c. 2-15—Vattel, III. § 117—Hall, §§ 233, 237-266—Lawrence, §§ 246-252—Westlake, II. pp. 228-239—Maine, pp. 107-109—Manning, pp. 400-412—Phillimore, III. §§ 285-321—Twiss, II. §§ 98-120—Halleck, II. pp. 182-213—Taylor, §§ 674-684—Walker, §§ 76-82—Wharton, III. §§ 359-365—Moore, VII. §§ 1266-1286—Wheaton, §§ 509-523—Bluntschli, §§ 827-840—Heffter, §§ 154-157—Geffcken in Holtzendorff, IV. pp. 738-771—Ullmann, § 182—Bonfils, Nos. 1608-1659—Despagnet, Nos. 620-640—Pradier-Fodéré, VI. Nos. 2676-2679, and VIII. Nos. 3109-3152—Nys, III. pp. 224-244, 693-694—Rivier, II. pp. 288-298—Calvo, V. §§ 2827-2908—Fiore, III. Nos. 1606-1629—Martens, II. § 124—Pillet, pp. 129-144—Kleen, I. §§ 124-139—Ortolan, II. pp. 292-336—Hautefeuille, II. pp. 189-288—Gessner, pp. 145-227—Perels, §§ 48-51—Testa, pp. 221-229—Dupuis, Nos. 159-198, and Guerre, Nos. 113-136—Boeck, Nos. 670-726—Holland, Prize Law, §§ 106-140—U.S. Naval War Code, articles 37-43—Bernsten, § 10—Nippold, II. § 32—Bargrave Deane, The Law of Blockade (1870)—Fauchille, Du blocus maritime (1882)—Carnazza-Amari, Del blocco maritimo (1897)—Frémont, De la saisie des navires en cas de blocus (1899)—Guynot-Boissière, Du blocus maritime (1899)—§§ 35-44 of the "Règlement international des prises maritimes" (Annuaire, IX. 1887, p. 218), adopted by the Institute of International Law—Atherley-Jones, Commerce in War (1906) pp. 92-252—Söderquist, Le Blocus Maritime (1908)—Hansemann, Die Lehre von der einheitlichen Reise im Rechte der Blockade und Kriegskonterbande (1910)—Güldenagel, Verfolgung und Rechtsfolgen des Blockadebruches (1911)—Hirschmann, Das internationale Prisenrecht (1912) §§ 17-23—Kennedy in The Journal of the Society of Comparative Legislation, New Series, IX. (1908), pp. 239-251—Myers in A.J. IV. pp. 571-595—General Report presented to the Naval Conference of London by its Drafting Committee, articles 1-21.
Definition of Blockade.
§ 368. Blockade is the blocking by men-of-war[733] of the approach to the enemy coast or a part of it for the purpose of preventing ingress and egress of vessels of all nations. Blockade must not be confounded with siege, although it may take place concurrently with siege. Whereas siege aims at the capture of the besieged place, blockade endeavours merely to intercept all intercourse, and especially commercial intercourse, by sea between the coast and the world at large. Although blockade is, as shown above in §§ [173] and 174, a means of warfare against the enemy, it concerns neutrals as well, because the ingress and egress of neutral vessels are thereby interdicted and may be punished.
[733] When in 1861, during the American Civil War, the Federal Government blocked the harbour of Charleston by sinking ships laden with stone, the question arose whether a so-called stone-blockade is lawful. There ought to be no doubt—see below, § [380]—that such a stone-blockade is not a blockade in the ordinary sense of the term, and that neutral ships may not be seized and confiscated for having attempted egress or ingress. But, on the other hand, there ought to be no doubt either that this mode of obstructing an enemy port is as lawful as any other means of sea warfare, provided the blocking of the harbour is made known so that neutral vessels can avoid the danger of being wrecked. See Wharton, III. § 361A; Fauchille, Blocus, pp. 143-145; Perels, § 35, p. 187.
Blockade in the modern sense of the term is an institution which could not develop until neutrality was in some form a recognised institution of the Law of Nations, and until the freedom of neutral commerce was in some form guaranteed. The institution of blockade dates from the sixteenth century,[734] but it has taken several hundred years for the institution to reach its present condition, since, until the beginning of the nineteenth century, belligerents frequently made use of so-called paper blockades, which are no longer valid, a blockade now being binding only if effective.
[734] See Fauchille, Blocus, pp. 2-6.
It is on account of the practical importance of blockade for the interests of neutrals that the matter is more conveniently treated with neutrality than with war. And it must be noted that blockade as a means of warfare must not be confounded with so-called pacific blockade, which is a means of compulsive settlement of State differences.
Apart from the stipulation of the Declaration of Paris that a blockade to be binding must be effective, no conventional rules concerning blockade were in existence until the Declaration of London, nor was the practice of the States governed by common rules covering all the points concerned. But articles 1-21 of the Declaration of London now offer a code of the law of blockade and will, should this Declaration be ratified, in time produce a common practice of all maritime States.
Blockade, Strategic and Commercial.
§ 369. A blockade is termed strategic if it forms part of other military operations directed against the coast which is blockaded, or if it be declared in order to cut off supply to enemy forces on shore. In contradistinction to blockade strategic, one speaks of a commercial blockade, when a blockade is declared simply in order to cut off the coast from intercourse with the outside world, although no military operations take place on shore. That blockades commercial are, according to the present rules of International Law, as legitimate as blockades strategic, is not generally denied. But several writers[735] maintain that blockades purely commercial ought to be abolished as not in accordance with the guaranteed freedom of neutral commerce during war.
[735] See Hall, § 233.
Blockade to be Universal.
§ 370. A blockade is really in being when vessels of all nations are interdicted and prevented from ingress or egress. Blockade as a means of warfare is admissible only in the form of a universal blockade, that is—as article 5 of the Declaration of London stipulates—it "must be applied impartially to the vessels of all nations." If the blockading belligerent were to allow the ingress or egress of vessels of one nation, no blockade would exist.[736]
[736] The Rolla (1807), 6 C. Rob. 364; the Franciska (1855), Spinks, 287. See also below, § [382].
On the other hand, provided a blockade is universal, a special licence of ingress or egress may be given to a special vessel and for a particular purpose,[737] and men-of-war of all neutral nations may be allowed to pass to and fro unhindered.[738] Thus, when during the American Civil War the Federal Government blockaded the coast of the Confederate States, neutral men-of-war were not prevented from ingress and egress. But it must be specially observed that a belligerent has a right to prevent neutral men-of-war from passing through the line of blockade, and it is entirely within his discretion whether or not he will admit or exclude them; nor is he compelled to admit them all, even though he has admitted one or more of them.
[737] This exception to the general rule is not mentioned by the Declaration of London, but I have no doubt that the International Prize Court would recognise it.
[738] Recognised by article 6 of the Declaration of London.
Blockade, Outwards and Inwards.
§ 371. As a rule a blockade is declared for the purpose of preventing ingress as well as egress. But sometimes only ingress or only egress is prevented. In such cases one speaks of "Blockade inwards" and of "Blockade outwards" respectively. Thus the blockade of the mouth of the Danube declared by the Allies in 1854 during the Crimean War was a "blockade inwards," since the only purpose was to prevent supply reaching the Russian Army from the sea.[739]
[739] The Gerasimo (1857), 11 Moore, P.C. 88.
What Places can be Blockaded.
§ 372. In former times it was sometimes asserted that only ports, or even only fortified[740] ports, could be blockaded, but the practice of the States has always shown that single ports and portions of an enemy coast as well as the whole of the enemy coast may be blockaded. Thus during the American Civil War the whole of the coast of the Confederate States to the extent of about 2500 nautical miles was blockaded. And attention must be drawn to the fact, that such ports of a belligerent as are in the hands of the enemy may be the object of a blockade. Thus during the Franco-German War the French blockaded[741] their own ports of Rouen, Dieppe, and Fécamp, which were occupied by the Germans. Article 1 of the Declaration of London indirectly sanctions the practice of the States by enacting that "a blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy."
[740] Napoleon I. maintained in his Berlin Decrees: "Le droit de blocus, d'après la raison et l'usage de tous les peuples policés, n'est applicable qu'aux places fortes."
[741] See Fauchille, Blocus, p. 161.
Blockade of International Rivers.
§ 373. It is a moot question whether the mouth of a so-called international river may be the object of a blockade, in case the riparian States are not all belligerents. Thus, when in 1854, during the Crimean War, the allied fleets of Great Britain and France blockaded the mouth of the Danube, Bavaria and Württemberg, which remained neutral, protested. When in 1870 the French blockaded the whole of the German coast of the North Sea, they exempted the mouth of the river Ems, because it runs partly through Holland. And when in 1863, during the blockade of the coast of the Confederate States, the Federal cruiser Vanderbilt captured the British vessel Peterhoff[742] destined for Matamaros, on the Mexican shore of the Rio Grande, the American Courts released the vessel on the ground that trade with Mexico, which was neutral, could not be prohibited.
[742] 5 Wallace, 49. See Fauchille, Blocus, pp. 171-183; Phillimore, III. § 293A; Hall, § 266; Rivier, II. p. 291.
The Declaration of London would seem to settle the controversy only as regards one point. By enacting that "the blockading forces must not bar access to neutral ports or coasts," article 18 certainly prohibits the blockade of the whole mouth of a boundary river between a neutral and a belligerent State, as, for instance, the River Rio Grande in case of war with the United States of America, provided Mexico remained neutral. But no provision is made for the case of the blockade of the mouths of rivers, such as the Danube or the Rhine, for example, which pass through several States between their sources and their mouths at the sea coast, if one or more upper riparian States remain neutral.
Justification of Blockade.
§ 374. The question has been raised in what way blockade, which vests a belligerent with a certain jurisdiction over neutral vessels and which has detrimental consequences for neutral trade, could be justified.[743] Several writers, following Hautefeuille,[744] maintain that the establishment of a blockade by a belligerent stationing a number of men-of-war so as to block the approach to the coast includes conquest of that part of the sea, and that such conquest justifies a belligerent in prohibiting ingress and egress of vessels of all nations. In contradistinction to this artificial construction of a conquest of a part of the sea, some writers[745] try to justify blockade by the necessity of war. I think, however, no special justification of blockade is necessary at all. The fact is that the detrimental consequences of blockade to neutrals stand in the same category as the many other detrimental consequences of war to neutrals. Neither the one nor the other need be specially justified. A blockade interferes indeed with the recognised principle of the freedom of the sea, and, further, with the recognised freedom of neutral commerce. But all three have developed together, and when the freedom of the sea in time of peace and war, and, further, when the freedom of neutral commerce became generally recognised, the exceptional restrictions of blockade became at the same time recognised as legitimate.
[743] The matter is thoroughly treated by Fauchille, Blocus, pp. 13-36, and Güldenagel, op. cit. pp. 39-86.
[744] See Hautefeuille, II. pp. 190-191.
[745] See Gessner, p. 151; Bluntschli, § 827; Martens, II. § 124.
II ESTABLISHMENT OF BLOCKADE
See the literature quoted above at the commencement of § [368].
Competence to establish Blockade.
§ 375. A declaration of blockade being "a high[746] act of sovereignty" and having far-reaching consequences upon neutral trade, it is generally recognised not to be in the discretion of a commander of a naval force to establish blockade without the authority of his Government. Article 9 of the Declaration of London precisely enacts that "a Declaration of blockade is made by the blockading Power or by the naval authorities acting in its name." The authority of his Government to establish a blockade can be granted to a commander of a naval force purposely for a particular blockade, the Government ordering the commander of a squadron to blockade a certain port or coast. Or a Government can expressly delegate its power to blockade to a commander for use at his discretion. And if operations of war take place at great distance[747] from the seat of Government and a commander finds it necessary to establish a blockade, the latter can become valid through his Government giving its immediate consent after being informed of the act of the commander. And, further, the powers vested in the hands of the supreme commander of a fleet are supposed to include the authority to establish a blockade in case he finds it necessary, provided that his Government acquiesces as soon as it is informed of the establishment of the blockade.[748]
[746] The Henrik and Maria (1799), 1 C. Rob. 146.
[747] The Rolla (1807), 6 C. Rob. 364.
[748] As regards the whole matter, see Fauchille, Blocus, pp. 68-73.
Declaration and Notification of Blockade.
§ 376. A blockade is not in being ipso facto by the outbreak of war. And even the actual blocking of the approach to an enemy coast by belligerent men-of-war need not by itself mean that the ingress and egress of neutral vessels are to be prohibited, since it can take place for the purpose of preventing the egress and ingress of enemy vessels only. Continental writers, therefore, have always considered notification to be essential for the establishment of a blockade. English, American, and Japanese writers, however, have not hitherto held notification to be essential, although they considered knowledge on the part of a neutral vessel of an existing blockade to be necessary for her condemnation for breach of blockade.[749]
But although Continental writers have always held notification to be essential for the establishment of blockade, they differed with regard to the kind of notification that is necessary. Some writers[750] maintained that three different notifications must take place—namely, first, a local notification to the authorities of the blockaded ports or coast; secondly, a diplomatic or general notification to all maritime neutral States by the blockading belligerent; and, thirdly, a special notification to every approaching neutral vessel. Other writers[751] considered only diplomatic and special notification essential. Others again[752] maintained that special notification to every approaching neutral vessel is alone required, although they recommended diplomatic notification as a matter of courtesy.
[750] See, for instance, Kleen, I. § 131.
[751] See, for instance, Bluntschli, 831-832; Martens, II. § 124, Gessner, p. 181.
[752] See, for instance, Hautefeuille, II. pp. 224 and 226; Calvo, V. § 2846; Fauchille, pp. 219-221.
As regards the practice of States, it has always been usual for the commander who established a blockade to send a notification of the blockade to the authorities of the blockaded ports or coast and the foreign consuls there. It has, further, always been usual for the blockading Government to notify the fact diplomatically to all neutral maritime States. And some States, as France and Italy, have always ordered their blockading men-of-war to board every approaching neutral vessel and notify her of the establishment of the blockade. But Great Britain, the United States of America, and Japan did not formerly consider notification to be essential for the institution of a blockade. They held the simple fact that the approach was blocked, and egress and ingress of neutral vessels actually prevented, to be sufficient to make the existence of a blockade known, and when no diplomatic notification had taken place, they did not seize a vessel for breach of blockade whose master had no actual notice of the existence of the blockade. English,[753] American,[754] and Japanese[755] practice, accordingly, made a distinction between a so-called de facto blockade on the one hand, and, on the other, a notified blockade.
[753] The Vrouw Judith (1799), 1 C. Rob. 150.
[754] See U.S. Naval War Code, articles 39-40.
[755] See Japanese Prize Law, article 30.
The Declaration of London, when ratified, will create a common practice, for articles 8 to 12 represent an agreement of the Powers on the following points:—
(1) There must be a declaration as well as a notification in order to make a blockade binding (article 8). If there is either no proper declaration or no proper notification, the blockade is not binding.
(2) A declaration of blockade is made either by the blockading Power or by the naval authorities acting in its name. The declaration of blockade must specify (a) the date when the blockade begins; (b) the geographical limits of the coastline under blockade; and (c) the period within which neutral vessels may come out (article 9). If the commencement of the blockade or its geographical limits are given inaccurately in the declaration, or if no mention is made of the period within which neutral vessels may come out, or if this period is given inaccurately, the declaration is void, and a new declaration is necessary in order to make the blockade binding (article 10).
(3) Notification of the declaration of blockade must at once be made. Two notifications are necessary (article 11):—
The first notification must be made by the Government of the blockading fleet to all neutral Governments either through the diplomatic channel, or otherwise, for instance by telegraph. The purpose of this notification is to enable neutral Governments to inform merchantmen sailing under their flag of the establishment of a blockade.
The second notification must be made to the local authorities by the officer commanding the blockading force; these authorities have on their part to notify, as soon as possible, the foreign consuls at the blockaded port or coastline. The purpose of this notification is to enable neutral merchantmen in the blockaded port or ports to receive knowledge of the establishment of the blockade and to prepare themselves to leave the port within the period specified in the declaration of blockade.
(4) The rules as to declaration and notification of blockade apply to cases where the limits of a blockade have been extended, or where a blockade is re-established after having been raised (article 12).
Length of Time for Egress of Neutral Vessels.
§ 377. As regards ingress, a blockade becomes valid the moment it is established; even vessels in ballast have no right of ingress. As regards egress, it has always been usual for the blockading commander to grant a certain length of time within which neutral vessels might leave the blockaded ports unhindered, but no rule existed respecting the length of such time, although fifteen days were frequently granted.[756] This usage of granting to neutral vessels a period within which they may leave the blockaded port, has been made a binding rule by the Declaration of London. For, since article 9 enacts that a declaration of blockade must specify the period within which neutral vessels may come out, it implicitly enacts that the granting of such a period is compulsory, although it may only be long enough to enable neutral vessels to make their way out as quickly as possible.
[756] According to U.S. Naval War Code, article 43, thirty days are allowed "unless otherwise specially ordered."
End of Blockade.
§ 378. Apart from the conclusion of peace, a blockade can come to an end in three different ways.
It may, firstly, be raised, or restricted in its limits, by the blockading Power for any reason it likes. In such a case it has always been usual to notify the end of blockade to all neutral maritime States, and article 13 of the Declaration of London turns this usage into a binding rule by enacting that the voluntary raising of a blockade, as also any restrictions in its limits, must, in the same way as the declaration of a blockade, be notified to all neutral Governments by the blockading Power, as well as to the local authorities by the officer commanding the blockading fleet.
A blockade can, secondly, come to an end through an enemy force driving off the blockading squadron or fleet. In such case the blockade ends ipso facto by the blockading squadron being driven away, whatever their intention as to returning may be. Should the squadron return and resume the blockade, it must be considered as new, and not simply the continuation of the former blockade, and another declaration and notification are necessary (article 12 of the Declaration of London).
The third ground for the ending of a blockade is its failure to be effective, a point which will be treated below in § [382].
III EFFECTIVENESS OF BLOCKADE
See the literature quoted above at the commencement of § [368].
Effective in contradistinction to Fictitious Blockade.
§ 379. The necessity for effectiveness in a blockade by means of the presence of a blockading squadron of sufficient strength to prevent egress and ingress of vessels became gradually recognised during the first half of the nineteenth century; it became formally enacted as a principle of the Law of Nations through the Declaration of Paris in 1856, and the Declaration of London enacts it by article 2. Effective blockade is the contrast to so-called fictitious or paper blockade, which was frequently practised during the seventeenth, eighteenth, and at the beginning of the nineteenth century.[757] Fictitious blockade consists in the declaration and notification that a port or a coast is blockaded without, however, posting a sufficient number of men-of-war on the spot to be really able to prevent egress and ingress of every vessel. It was one of the principles of the First and of the Second Armed Neutrality that a blockade should always be effective, but it was not till after the Napoleonic wars that this principle gradually found universal recognition. During the second half of the nineteenth century even those States which had not acceded to the Declaration of Paris did not dissent regarding the necessity for effectiveness of blockade.
[757] See Fauchille, Blocus, pp. 74-109.
Condition of Effectiveness of Blockade.
§ 380. The condition of effectiveness of blockade, as defined by the Declaration of Paris, is its maintenance by such a force as is sufficient really to prevent access to the coast. But no unanimity exists respecting what is required to constitute an effective blockade according to this definition. Apart from differences of opinion regarding points of minor interest, it may be stated that in the main there are two conflicting opinions.
According to one opinion, the definition of an effective blockade pronounced by the First Armed Neutrality of 1780 is valid, and a blockade is effective only when the approach to the coast is barred by a chain of men-of-war anchored on the spot and so near to one another that the line cannot be passed without obvious danger to the passing vessel.[758] This corresponds to the practice hitherto followed by France.
[758] See Hautefeuille, II. p. 194; Gessner, p. 179; Kleen, I. § 129; Boeck, Nos. 676-681; Dupuis, Nos. 173-174; Fauchille, Blocus, pp. 110-142. Phillimore, III. § 293, takes up the same standpoint in so far as a blockade de facto is concerned:—"A blockade de facto should be effected by stationing a number of ships, and forming as it were an arch of circumvallation round the mouth of the prohibited port, where, if the arch fails in any one part, the blockade itself fails altogether."
According to another opinion, a blockade is effective when the approach is watched—to use the words of Dr. Lushington[759]—"by a force sufficient to render the egress and ingress dangerous, or, in other words, save under peculiar circumstances, as fogs, violent winds, and some necessary absences, sufficient to render the capture of vessels attempting to go in or come out most probable." According to this opinion there need be no chain of anchored men-of-war to expose any vessels attempting to break the blockade to a cross fire, but a real danger of capture suffices, whether the danger is caused by cruising or anchored men-of-war. This is the standpoint of theory and practice of Great Britain and the United States, and it seems likewise to be that of Germany and several German writers.[760] The blockade during the American War of the whole coast of the Confederate States to the extent of 2500 nautical miles by four hundred Federal cruisers could, of course, only be maintained by cruising vessels; and the fact that all neutral maritime States recognised it as effective shows that the opinion of dissenting writers has more theoretical than practical importance.
[759] In his judgment in the case of the Franciska (1855), Spinks, 287.
[760] See Perels, § 49; Bluntschli, § 829; Liszt, § 41, III.
The Declaration of London has settled the controversy in so far as article 3 enacts that "the question whether a blockade is effective, is a question of fact." Each case must, therefore, be judged according to its merits, and the before mentioned decision of Dr. Lushington would seem to have found implied recognition by article 3.
The question of effectiveness being one of fact, and the real danger to passing vessels being the characteristic of effectiveness of blockade, it must be recognised that in certain cases and in the absence of a sufficient number of men-of-war a blockade may be made effective through planting land batteries within range of any vessel attempting to pass,[761] provided there be at least one man-of-war on the spot. But a stone blockade,[762] so called because vessels laden with stones are sunk in the channel to block the approach, is not an effective blockade.
[761] The Nancy (1809), 1 Acton, 63; the Circassian (1864), 2 Wallace, 135; the Olinde Rodrigues (1898), 174, United States, 510. See also Bluntschli, § 829; Perels, § 49; Geffcken in Holtzendorff, IV. p. 750; Walker, Manual, § 78.
[762] See above, § [368, p. 450, note 1]. It ought to be mentioned here also that according to article 2 of Convention VIII. "it is forbidden to lay automatic contact mines off the ports and coasts of the enemy, with the sole object of intercepting commercial navigation."
And it must, lastly, be mentioned that the distance of the blockading men-of war from the blockaded port or coast is immaterial so long as the circumstances and conditions of the special case justify such distance. Thus during the Crimean War the port of Riga was blockaded by a man-of-war stationed at a distance of 120 miles from the town, in the Lyser Ort, a channel three miles wide forming the only approach to the gulf.[763]
[763] The Franciska (1855), Spinks, 287. See Hall, § 260, and Holland, Studies, pp. 166-167.
Amount of Danger which creates Effectiveness.
§ 381. It is impossible to state exactly what degree of danger to a vessel attempting to pass is necessary to prove an effective blockade. It is recognised that a blockade does not cease to be effective in case now and then a vessel succeeds in passing the line unhindered, provided there was so much danger as to make her capture probable. Dr. Lushington strikingly dealt with the matter in the following words:[764]—"The maintenance of a blockade must always be a question of degree—of the degree of danger attending ships going into or leaving a port. Nothing is further from my intention, nor indeed more opposed to my notions, than any relaxation of the rule that a blockade must be sufficiently maintained; but it is perfectly obvious that no force could bar the entrance to absolute certainty; that vessels may get in and get out during the night, or fogs, or violent winds, or occasional absence; that it is most difficult to judge from numbers alone. Hence, I believe that in every case the inquiry has been, whether the force was competent and present, and, if so, the performance of the duty was presumed; and I think I may safely assert that in no case was a blockade held to be void when the blockading force was on the spot or near thereto on the ground of vessels entering into or escaping from the port, where such ingress or egress did not take place with the consent of the blockading squadron."
[764] In his judgment in the case of the Franciska (1855), Spinks, 287.
Cessation of Effectiveness.
§ 382. A blockade is effective so long as the danger lasts which makes probable the capture of such vessels as attempt to pass the approach. A blockade, therefore, ceases ipso facto by the absence of such danger, whether the blockading men-of-war are driven away, or are sent away for the fulfilment of some task which has nothing to do with the blockade, or voluntarily withdraw, or allow the passage of vessels in other cases than those which are exceptionally admissible. Thus, when in 1861, during the American Civil War, the Federal cruiser Niagara, which blockaded Charleston, was sent away and her place was taken after five days by the Minnesota, the blockade ceased to be effective, although the Federal Government refused to recognise this.[765] Thus, further, when during the Crimean War Great Britain allowed Russian vessels to export goods from blockaded ports, and accordingly the egress of such vessels from the blockaded port of Riga was permitted, the blockade of Riga ceased to be effective, because it tried to interfere with neutral commerce only; therefore, the capture of the Danish vessel Franciska[766] for attempting to break the blockade was not upheld.
[765] See Mountague Bernard, Neutrality of Great Britain during the American Civil War (1870), pp. 237-239.
[766] Spinks, 287. See above, § [370].
On the other hand, practice[767] and the majority of writers have always recognised the fact that a blockade does not cease to be effective in case the blockading force is driven away for a short time through stress of weather, and article 4 of the Declaration of London precisely enacts that "a blockade is not regarded as raised if the blockading force is temporarily withdrawn on account of stress of weather." English[768] writers, further, have hitherto denied that a blockade loses effectiveness through a blockading man-of-war being absent for a short time for the purpose of chasing a vessel which succeeded in passing the approach unhindered,[769] but the Declaration of London does not recognise this.[770]
[767] The Columbia (1799), 1 C. Rob. 154.
[768] See Twiss, II. § 103, p. 201, and Phillimore, III. § 294.
[769] See article 37 of U.S. Naval War Code.
[770] See the Report of the Drafting Committee on article 4 of the Declaration of London.
IV BREACH OF BLOCKADE
See the literature quoted above at the commencement of § [368].
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 hitherto 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.
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]
British, American, and Japanese 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]
[772] See Holland, Prize Law, §§ 107, 114-127; U.S. Naval War Code, article 39; Japanese Prize Law, article 30.
[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 Japanese practice, but differs chiefly in the presumption that knowledge of a blockade is never absolute, but may in every case be rebutted. 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 pass 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).
The former practice as to what constitutes 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 constitute 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 passing 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 Japan, 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 pass 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 ship 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 Nassau, 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 Nassau, 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]
[774] See Hautefeuille, II. p. 134; Kleen, I. § 137; Gessner, p. 202; Dupuis, No. 185; Fauchille, Blocus, p. 322.
[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 Japanese Naval Prize Law.
[776] See Holland, Prize Law, § 133, and U.S. Naval War Code, article 42; the Betsey (1799), 1 C. Rob. 332.
[777] On this doctrine, see below, § [400, p. 499, note 1].
[778] See Holland, Prize Law, § 134, and the case of the James Cook (1810), Edwards, 261.
[779] 3 Wallace, § 14.
[780] 3 Wallace, 559.
[781] 5 Wallace, 1.
[782] 5 Wallace, 28.
[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] assert 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.
[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, Kriegführende und neutrale Mächte (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.
What constitutes an Attempt to break Blockade according to the Declaration of London.
§ 385a. 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]
[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 passes 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]
[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.
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.
According to the practice which has hitherto 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 constitute 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 compass,[793] endeavour to get a pilot,[794] and the like, or an attempt to ascertain[795] whether the blockade was raised.[796]
[788] The Charlotta (1810), Edwards, 252.
[789] The Fortuna (1803), 5 C. Rob. 27.
[790] The Hurtige Hanne (1799), 2 C. Rob. 124.
[791] The Shepherdess (1804), 5 C. Rob. 262.
[792] The Adonis (1804), 5 C. Rob. 256.
[793] The Elizabeth (1810), Edwards, 198.
[794] The Neutralitet (1805), 6 C. Rob. 30.
[795] The Spes and Irene (1804), 5 C. Rob. 76.
[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 circumstances 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 circumstances of distress, and, secondly, makes it a condition that the circumstances 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 circumstances 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.
[797] See Report of the Drafting Committee on article 7.
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 pass unhindered.[802]
[798] See Holland, Prize Law, § 130; Twiss, II. § 113; Phillimore, III. § 313.
[799] The Frederick Moltke (1798), 1 C. Rob. 86.
[800] The Juno (1799), 2 C. Rob. 116.
[801] The Vrouw Judith (1799), 1 C. Rob. 150.
[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 pass 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.
Passage through Unblockaded Canal no Breach of Blockade.
§ 388. A breach of blockade can only be committed by passing through the blockaded approach. Therefore, if the maritime approach to a port is blockaded whilst an inland canal 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 passing such canal for the purpose of reaching the blockaded port.[803]
[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].
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.
[804] The Welvaart van Pillaw (1799), 2 C. Rob. 128; General Hamilton (1805), 6 C. Rob. 61.
[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]
[806] See the Report of the Drafting Committee on article 20.
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 pronounced 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 pronounced its verdict.[808] The only penalty which may be pronounced is confiscation of the vessel and the cargo. But the practice[809] of the several States has hitherto 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 passed through the blockaded line, or the breach of blockade was effected through a combined action of lighters and the vessel, the lighters passing 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.
[807] See Bynkershoek, Quaest. jur. publ. I. c. 11.
[808] See Calvo, V. §§ 2897-2898. U.S. Naval War Code, article 45.
[809] See Fauchille, Blocus, pp. 357-394: Gessner, pp. 210-214; Perels, § 51, pp. 276-278.
[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.
[811] The Maria (1805), 6 C Rob. 201.
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.