[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.