"A breach of blockade is not an offense against the laws of the country of the neutral owner or master. The only penalty for engaging in such trade is the liability to capture and condemnation by the belligerent."[474] The American and English practice is to regard as the breach of blockade the act of passing into or out of a blockaded place, unless by special privilege, or a manifestation of an intent to thus pass. The French courts impose a penalty only upon those who actually attempt to run the blockade. The American practice would make the vessel liable to penalty from the time of its departure from neutral jurisdiction with intent to enter the blockaded port until its return, unless the blockade is raised meantime.
Under proper regulations, certain vessels are usually allowed to pass a blockade without penalty:—
1. Neutral vessels in actual distress.
2. Neutral vessels of war.
3. Neutral vessels in the port at the time of the establishment of the blockade, provided they depart within a reasonable time. In the War of 1898, the United States allowed thirty days after the establishment of the blockade to neutral vessels to load and to depart.
The penalty for the violation of blockade is forfeiture of vessel and cargo, although when vessel and cargo belong to different owners, and the owner of the cargo is an innocent shipper, it has been held that the cargo may be released. This may happen if a vessel deviates from her original destination to a blockaded port. Even though a vessel pass a blockade, she is liable to capture while at sea before the termination of the voyage, provided the blockade continues.[475] The crews of neutral vessels violating a blockade are not prisoners of war, but may be held as witnesses before a prize court.
[§ 138. Continuous Voyages]
The Rule of War of 1756 declared that during war neutrals were not permitted to engage with the colonies of a belligerent in a trade which was not permitted to foreigners in time of peace.[476] Ordinarily in the time of peace, trade between the mother country and the colony was restricted to domestic ships. This rule was adopted in order that a neutral might not, by undertaking trade denied him in time of peace, relieve one of the belligerents of a part of the burdens of war which the interruption of domestic commerce by the other belligerent had imposed. Trade with neutral ports was allowed in time of peace. Therefore, to avoid technical violation of the rule, neutral vessels sailing from a port within belligerent jurisdiction, touched at a port within neutral jurisdiction, and in some cases landed and reshipped their cargoes. Lord Stowell decided that it was a settled principle "that the mere touching at any port without importing the cargo into the common stock of the country will not alter the nature of the voyage, which continues the same in all respects, and must be considered as a voyage to the country to which the vessel is actually going for the purpose of delivering her cargo at the ultimate port."[477] In the case of the William in 1806, Sir William Grant declared that "the truth may not always be discernible, but when it is discovered, it is according to the truth and not according to the fiction that we are to give to the transaction its character and denomination. If the voyage from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have ended. That those acts have been attended with trouble and expense cannot alter their quality or their effect."[478] The English authorities held that the visit to a neutral port did not constitute the trip two voyages, but that the voyage was continuous and the property liable to confiscation, though Hall says the "cargo was confiscated only when captured on its voyage from the port of colorable importation to the enemy country."[479] British cruisers, however, seized three German vessels, the Herzog, the Bundesrath, and the General, during the South African War of 1899-1900, while on a voyage to the Portuguese port of Lorenço Marques, which was the natural port of entry for Pretoria, the capital of the South African Republic. Germany protested. The vessels were released and the English authorities promised that in the future they would refrain from searching vessels until the vessels had passed beyond Aden, or any other place at the same distance from Delagoa Bay.
The American doctrine of continuous voyages is a considerable extension of the English doctrine and has met with severe criticism. In the case of the Bermuda, captured during the Civil War of 1861-1864, it was held that:—
"Destination alone justifies seizure and condemnation of ship and cargo in voyage to ports under blockade; and such destination justifies equally seizure of contraband in voyage to ports not under blockade; but in the last case the ship, and cargo, not contraband, are free from seizure, except in cases of fraud or bad faith."[480]