[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.