[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."