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.