BLOCKADE
I
CONCEPTION OF BLOCKADE
Grotius, III. c. 1, § 5--Bynkershoek, _Quaest. jur. publ._ I. c.
2-15--Vattel, III. § 117--Hall, §§ 233, 237-266--Lawrence, §§
246-252--Westlake, II. pp. 228-239--Maine, pp. 107-109--Manning,
pp. 400-412--Phillimore, III. §§ 285-321--Twiss, II. §§
98-120--Halleck, II. pp. 182-213--Taylor, §§ 674-684--Walker, §§
76-82--Wharton, III. §§ 359-365--Moore, VII. §§
1266-1286--Wheaton, §§ 509-523--Bluntschli, §§ 827-840--Heffter,
§§ 154-157--Geffcken in Holtzendorff, IV. pp. 738-771--Ullmann, §
182--Bonfils, Nos. 1608-1659--Despagnet, Nos.
620-640--Pradier-Fodéré, VI. Nos. 2676-2679, and VIII. Nos.
3109-3152--Nys, III. pp. 224-244, 693-694--Rivier, II. pp.
288-298--Calvo, V. §§ 2827-2908--Fiore, III. Nos.
1606-1629--Martens, II. § 124--Pillet, pp. 129-144--Kleen, I. §§
124-139--Ortolan, II. pp. 292-336--Hautefeuille, II. pp.
189-288--Gessner, pp. 145-227--Perels, §§ 48-51--Testa, pp.
221-229--Dupuis, Nos. 159-198, and _Guerre_, Nos. 113-136--Boeck,
Nos. 670-726--Holland, _Prize Law_, §§ 106-140--U.S. Naval War
Code, articles 37-43--Bernsten, § 10--Nippold, II. § 32--Bargrave
Deane, _The Law of Blockade_ (1870)--Fauchille, _Du blocus
maritime_ (1882)--Carnazza-Amari, _Del blocco maritimo_
(1897)--Frémont, _De la saisie des navires en cas de blocus_
(1899)--Guynot-Boissière, _Du blocus maritime_ (1899)--§§ 35-44 of
the "Règlement international des prises maritimes" (_Annuaire_,
IX. 1887, p. 218), adopted by the Institute of International
Law--Atherley-Jones, _Commerce in War_ (1906) pp.
92-252--Söderquist, _Le Blocus Maritime_ (1908)--Hansemann, _Die
Lehre von der einheitlichen Reise im Rechte der Blockade und
Kriegskonterbande_ (1910)--Güldenagel, _Verfolgung und
Rechtsfolgen des Blockadebruches_ (1911)--Hirschmann, _Das
internationale Prisenrecht_ (1912) §§ 17-23--Kennedy in _The
Journal of the Society of Comparative Legislation_, New Series,
IX. (1908), pp. 239-251--Myers in _A.J._ IV. pp. 571-595--General
Report presented to the Naval Conference of London by its Drafting
Committee, articles 1-21.
[Sidenote: Definition of Blockade.]
§ 368. Blockade is the blocking by men-of-war[733] of the approach to
the enemy coast or a part of it for the purpose of preventing ingress
and egress of vessels of all nations. Blockade must not be confounded
with siege, although it may take place concurrently with siege. Whereas
siege aims at the capture of the besieged place, blockade endeavours
merely to intercept all intercourse, and especially commercial
intercourse, by sea between the coast and the world at large. Although
blockade is, as shown above in §§ 173 and 174, a means of warfare
against the enemy, it concerns neutrals as well, because the ingress and
egress of neutral vessels are thereby interdicted and may be punished.
[Footnote 733: When in 1861, during the American Civil War, the Federal
Government blocked the harbour of Charleston by sinking ships laden with
stone, the question arose whether a so-called stone-blockade is lawful.
There ought to be no doubt--see below, § 380--that such a stone-blockade
is not a blockade in the ordinary sense of the term, and that neutral
ships may not be seized and confiscated for having attempted egress or
ingress. But, on the other hand, there ought to be no doubt either that
this mode of obstructing an enemy port is as lawful as any other means
of sea warfare, provided the blocking of the harbour is made known so
that neutral vessels can avoid the danger of being wrecked. See Wharton,
III. § 361A; Fauchille, _Blocus_, pp. 143-145; Perels, § 35, p. 187.]
Blockade in the modern sense of the term is an institution which could
not develop until neutrality was in some form a recognised institution
of the Law of Nations, and until the freedom of neutral commerce was in
some form guaranteed. The institution of blockade dates from the
sixteenth century,[734] but it has taken several hundred years for the
institution to reach its present condition, since, until the beginning
of the nineteenth century, belligerents frequently made use of so-called
paper blockades, which are no longer valid, a blockade now being binding
only if effective.
[Footnote 734: See Fauchille, _Blocus_, pp. 2-6.]
It is on account of the practical importance of blockade for the
interests of neutrals that the matter is more conveniently treated with
neutrality than with war. And it must be noted that blockade as a means
of warfare must not be confounded with so-called pacific blockade, which
is a means of compulsive settlement of State differences.
Apart from the stipulation of the Declaration of Paris that a blockade
to be binding must be effective, no conventional rules concerning
blockade were in existence until the Declaration of London, nor was the
practice of the States governed by common rules covering all the points
concerned. But articles 1-21 of the Declaration of London now offer a
code of the law of blockade and will, should this Declaration be
ratified, in time produce a common practice of all maritime States.
[Sidenote: Blockade, Strategic and Commercial.]
§ 369. A blockade is termed strategic if it forms part of other military
operations directed against the coast which is blockaded, or if it be
declared in order to cut off supply to enemy forces on shore. In
contradistinction to blockade strategic, one speaks of a commercial
blockade, when a blockade is declared simply in order to cut off the
coast from intercourse with the outside world, although no military
operations take place on shore. That blockades commercial are, according
to the present rules of International Law, as legitimate as blockades
strategic, is not generally denied. But several writers[735] maintain
that blockades purely commercial ought to be abolished as not in
accordance with the guaranteed freedom of neutral commerce during war.
[Footnote 735: See Hall, § 233.]
[Sidenote: Blockade to be Universal.]
§ 370. A blockade is really in being when vessels of all nations are
interdicted and prevented from ingress or egress. Blockade as a means of
warfare is admissible only in the form of a _universal_ blockade, that
is--as article 5 of the Declaration of London stipulates--it "must be
applied impartially to the vessels of all nations." If the blockading
belligerent were to allow the ingress or egress of vessels of one
nation, no blockade would exist.[736]
[Footnote 736: The _Rolla_ (1807), 6 C. Rob. 364; the _Franciska_
(1855), Spinks, 287. See also below, § 382.]
On the other hand, provided a blockade is universal, a special licence
of ingress or egress may be given to a special vessel and for a
particular purpose,[737] and men-of-war of all neutral nations may be
allowed to pass to and fro unhindered.[738] Thus, when during the
American Civil War the Federal Government blockaded the coast of the
Confederate States, neutral men-of-war were not prevented from ingress
and egress. But it must be specially observed that a belligerent has a
right to prevent neutral men-of-war from passing through the line of
blockade, and it is entirely within his discretion whether or not he
will admit or exclude them; nor is he compelled to admit them all, even
though he has admitted one or more of them.
[Footnote 737: This exception to the general rule is not mentioned by
the Declaration of London, but I have no doubt that the International
Prize Court would recognise it.]
[Footnote 738: Recognised by article 6 of the Declaration of London.]
[Sidenote: Blockade, Outwards and Inwards.]
§ 371. As a rule a blockade is declared for the purpose of preventing
ingress as well as egress. But sometimes only ingress or only egress is
prevented. In such cases one speaks of "Blockade inwards" and of
"Blockade outwards" respectively. Thus the blockade of the mouth of the
Danube declared by the Allies in 1854 during the Crimean War was a
"blockade inwards," since the only purpose was to prevent supply
reaching the Russian Army from the sea.[739]
[Footnote 739: The _Gerasimo_ (1857), 11 Moore, P.C. 88.]
[Sidenote: What Places can be Blockaded.]
§ 372. In former times it was sometimes asserted that only ports, or
even only fortified[740] ports, could be blockaded, but the practice of
the States has always shown that single ports and portions of an enemy
coast as well as the whole of the enemy coast may be blockaded. Thus
during the American Civil War the whole of the coast of the Confederate
States to the extent of about 2500 nautical miles was blockaded. And
attention must be drawn to the fact, that such ports of a belligerent
as are in the hands of the enemy may be the object of a blockade. Thus
during the Franco-German War the French blockaded[741] their own ports
of Rouen, Dieppe, and Fécamp, which were occupied by the Germans.
Article 1 of the Declaration of London indirectly sanctions the practice
of the States by enacting that "a blockade must not extend beyond the
ports and coasts belonging to or occupied by the enemy."
[Footnote 740: Napoleon I. maintained in his Berlin Decrees: "Le droit
de blocus, d'après la raison et l'usage de tous les peuples policés,
n'est applicable qu'aux places fortes."]
[Footnote 741: See Fauchille, _Blocus_, p. 161.]
[Sidenote: Blockade of International Rivers.]
§ 373. It is a moot question whether the mouth of a so-called
international river may be the object of a blockade, in case the
riparian States are not all belligerents. Thus, when in 1854, during the
Crimean War, the allied fleets of Great Britain and France blockaded the
mouth of the Danube, Bavaria and Württemberg, which remained neutral,
protested. When in 1870 the French blockaded the whole of the German
coast of the North Sea, they exempted the mouth of the river Ems,
because it runs partly through Holland. And when in 1863, during the
blockade of the coast of the Confederate States, the Federal cruiser
_Vanderbilt_ captured the British vessel _Peterhoff_[742] destined for
Matamaros, on the Mexican shore of the Rio Grande, the American Courts
released the vessel on the ground that trade with Mexico, which was
neutral, could not be prohibited.
[Footnote 742: 5 Wallace, 49. See Fauchille, _Blocus_, pp. 171-183;
Phillimore, III. § 293A; Hall, § 266; Rivier, II. p. 291.]
The Declaration of London would seem to settle the controversy only as
regards one point. By enacting that "the blockading forces must not bar
access to neutral ports or coasts," article 18 certainly prohibits the
blockade of the whole mouth of a boundary river between a neutral and a
belligerent State, as, for instance, the River Rio Grande in case of war
with the United States of America, provided Mexico remained neutral. But
no provision is made for the case of the blockade of the mouths of
rivers, such as the Danube or the Rhine, for example, which pass through
several States between their sources and their mouths at the sea coast,
if one or more upper riparian States remain neutral.
[Sidenote: Justification of Blockade.]
§ 374. The question has been raised in what way blockade, which vests a
belligerent with a certain jurisdiction over neutral vessels and which
has detrimental consequences for neutral trade, could be justified.[743]
Several writers, following Hautefeuille,[744] maintain that the
establishment of a blockade by a belligerent stationing a number of
men-of-war so as to block the approach to the coast includes conquest of
that part of the sea, and that such conquest justifies a belligerent in
prohibiting ingress and egress of vessels of all nations. In
contradistinction to this artificial construction of a conquest of a
part of the sea, some writers[745] try to justify blockade by the
necessity of war. I think, however, no special justification of blockade
is necessary at all. The fact is that the detrimental consequences of
blockade to neutrals stand in the same category as the many other
detrimental consequences of war to neutrals. Neither the one nor the
other need be specially justified. A blockade interferes indeed with the
recognised principle of the freedom of the sea, and, further, with the
recognised freedom of neutral commerce. But all three have developed
together, and when the freedom of the sea in time of peace and war, and,
further, when the freedom of neutral commerce became generally
recognised, the exceptional restrictions of blockade became at the same
time recognised as legitimate.
[Footnote 743: The matter is thoroughly treated by Fauchille, _Blocus_,
pp. 13-36, and Güldenagel, _op. cit._ pp. 39-86.]
[Footnote 744: See Hautefeuille, II. pp. 190-191.]
[Footnote 745: See Gessner, p. 151; Bluntschli, § 827; Martens, II. §
124.]
II
ESTABLISHMENT OF BLOCKADE
See the literature quoted above at the commencement of § 368.
[Sidenote: Competence to establish Blockade.]
§ 375. A declaration of blockade being "a high[746] act of sovereignty"
and having far-reaching consequences upon neutral trade, it is generally
recognised not to be in the discretion of a commander of a naval force
to establish blockade without the authority of his Government. Article 9
of the Declaration of London precisely enacts that "a Declaration of
blockade is made by the blockading Power or by the naval authorities
acting in its name." The authority of his Government to establish a
blockade can be granted to a commander of a naval force purposely for a
particular blockade, the Government ordering the commander of a squadron
to blockade a certain port or coast. Or a Government can expressly
delegate its power to blockade to a commander for use at his discretion.
And if operations of war take place at great distance[747] from the seat
of Government and a commander finds it necessary to establish a
blockade, the latter can become valid through his Government giving its
immediate consent after being informed of the act of the commander. And,
further, the powers vested in the hands of the supreme commander of a
fleet are supposed to include the authority to establish a blockade in
case he finds it necessary, provided that his Government acquiesces as
soon as it is informed of the establishment of the blockade.[748]
[Footnote 746: The _Henrik_ and _Maria_ (1799), 1 C. Rob. 146.]
[Footnote 747: The _Rolla_ (1807), 6 C. Rob. 364.]
[Footnote 748: As regards the whole matter, see Fauchille, _Blocus_, pp.
68-73.]
[Sidenote: Declaration and Notification of Blockade.]
§ 376. A blockade is not in being _ipso facto_ by the outbreak of war.
And even the actual blocking of the approach to an enemy coast by
belligerent men-of-war need not by itself mean that the ingress and
egress of _neutral_ vessels are to be prohibited, since it can take
place for the purpose of preventing the egress and ingress of _enemy_
vessels only. Continental writers, therefore, have always considered
notification to be essential for the establishment of a blockade.
English, American, and Japanese writers, however, have not hitherto held
notification to be essential, although they considered knowledge on the
part of a neutral vessel of an existing blockade to be necessary for her
condemnation for breach of blockade.[749]
[Footnote 749: See below, § 384.]
But although Continental writers have always held notification to be
essential for the establishment of blockade, they differed with regard
to the kind of notification that is necessary. Some writers[750]
maintained that three different notifications must take place--namely,
first, a local notification to the authorities of the blockaded ports or
coast; secondly, a diplomatic or general notification to all maritime
neutral States by the blockading belligerent; and, thirdly, a special
notification to every approaching neutral vessel. Other writers[751]
considered only diplomatic and special notification essential. Others
again[752] maintained that special notification to every approaching
neutral vessel is alone required, although they recommended diplomatic
notification as a matter of courtesy.
[Footnote 750: See, for instance, Kleen, I. § 131.]
[Footnote 751: See, for instance, Bluntschli, 831-832; Martens, II. §
124, Gessner, p. 181.]
[Footnote 752: See, for instance, Hautefeuille, II. pp. 224 and 226;
Calvo, V. § 2846; Fauchille, pp. 219-221.]
As regards the practice of States, it has always been usual for the
commander who established a blockade to send a notification of the
blockade to the authorities of the blockaded ports or coast and the
foreign consuls there. It has, further, always been usual for the
blockading Government to notify the fact diplomatically to all neutral
maritime States. And some States, as France and Italy, have always
ordered their blockading men-of-war to board every approaching neutral
vessel and notify her of the establishment of the blockade. But Great
Britain, the United States of America, and Japan did not formerly
consider notification to be essential for the institution of a blockade.
They held the simple fact that the approach was blocked, and egress and
ingress of neutral vessels actually prevented, to be sufficient to make
the existence of a blockade known, and when no diplomatic notification
had taken place, they did not seize a vessel for breach of blockade
whose master had no actual notice of the existence of the blockade.
English,[753] American,[754] and Japanese[755] practice, accordingly,
made a distinction between a so-called _de facto_ blockade on the one
hand, and, on the other, a notified blockade.
[Footnote 753: The _Vrouw Judith_ (1799), 1 C. Rob. 150.]
[Footnote 754: See U.S. Naval War Code, articles 39-40.]
[Footnote 755: See Japanese Prize Law, article 30.]
The Declaration of London, when ratified, will create a common practice,
for articles 8 to 12 represent an agreement of the Powers on the
following points:--
(1) There must be a _declaration_ as well as a _notification_ in order
to make a blockade binding (article 8). If there is either no proper
declaration or no proper notification, the blockade is not binding.
(2) A _declaration_ of blockade is made either by the blockading Power
or by the naval authorities acting in its name. The declaration of
blockade must specify (_a_) the date when the blockade begins; (_b_) the
geographical limits of the coastline under blockade; and (_c_) the
period within which neutral vessels may come out (article 9). If the
commencement of the blockade or its geographical limits are given
inaccurately in the declaration, or if no mention is made of the period
within which neutral vessels may come out, or if this period is given
inaccurately, the declaration is void, and a new declaration is
necessary in order to make the blockade binding (article 10).
(3) _Notification_ of the declaration of blockade must at once be made.
Two notifications are necessary (article 11):--
The first notification must be made by the Government of the blockading
fleet to all neutral Governments either through the diplomatic channel,
or otherwise, for instance by telegraph. The purpose of this
notification is to enable neutral Governments to inform merchantmen
sailing under their flag of the establishment of a blockade.
The second notification must be made to the local authorities by the
officer commanding the blockading force; these authorities have on their
part to notify, as soon as possible, the foreign consuls at the
blockaded port or coastline. The purpose of this notification is to
enable neutral merchantmen in the blockaded port or ports to receive
knowledge of the establishment of the blockade and to prepare themselves
to leave the port within the period specified in the declaration of
blockade.
(4) The rules as to declaration and notification of blockade apply to
cases where the limits of a blockade have been extended, or where a
blockade is re-established after having been raised (article 12).
[Sidenote: Length of Time for Egress of Neutral Vessels.]
§ 377. As regards _ingress_, a blockade becomes valid the moment it is
established; even vessels in ballast have no right of ingress. As
regards _egress_, it has always been usual for the blockading commander
to grant a certain length of time within which neutral vessels might
leave the blockaded ports unhindered, but no rule existed respecting the
length of such time, although fifteen days were frequently
granted.[756] This usage of granting to neutral vessels a period within
which they may leave the blockaded port, has been made a binding rule by
the Declaration of London. For, since article 9 enacts that a
declaration of blockade must specify the period within which neutral
vessels may come out, it implicitly enacts that the granting of such a
period is compulsory, although it may only be long enough to enable
neutral vessels to make their way out as quickly as possible.
[Footnote 756: According to U.S. Naval War Code, article 43, thirty days
are allowed "unless otherwise specially ordered."]
[Sidenote: End of Blockade.]
§ 378. Apart from the conclusion of peace, a blockade can come to an end
in three different ways.
It may, firstly, be raised, or restricted in its limits, by the
blockading Power for any reason it likes. In such a case it has always
been usual to notify the end of blockade to all neutral maritime States,
and article 13 of the Declaration of London turns this usage into a
binding rule by enacting that the voluntary raising of a blockade, as
also any restrictions in its limits, must, in the same way as the
declaration of a blockade, be notified to all neutral Governments by the
blockading Power, as well as to the local authorities by the officer
commanding the blockading fleet.
A blockade can, secondly, come to an end through an enemy force driving
off the blockading squadron or fleet. In such case the blockade ends
_ipso facto_ by the blockading squadron being driven away, whatever
their intention as to returning may be. Should the squadron return and
resume the blockade, it must be considered as new, and not simply the
continuation of the former blockade, and another declaration and
notification are necessary (article 12 of the Declaration of London).
The third ground for the ending of a blockade is its failure to be
effective, a point which will be treated below in § 382.
III
EFFECTIVENESS OF BLOCKADE
See the literature quoted above at the commencement of § 368.
[Sidenote: Effective in contradistinction to Fictitious Blockade.]
§ 379. The necessity for effectiveness in a blockade by means of the
presence of a blockading squadron of sufficient strength to prevent
egress and ingress of vessels became gradually recognised during the
first half of the nineteenth century; it became formally enacted as a
principle of the Law of Nations through the Declaration of Paris in
1856, and the Declaration of London enacts it by article 2. Effective
blockade is the contrast to so-called fictitious or paper blockade,
which was frequently practised during the seventeenth, eighteenth, and
at the beginning of the nineteenth century.[757] Fictitious blockade
consists in the declaration and notification that a port or a coast is
blockaded without, however, posting a sufficient number of men-of-war on
the spot to be really able to prevent egress and ingress of every
vessel. It was one of the principles of the First and of the Second
Armed Neutrality that a blockade should always be effective, but it was
not till after the Napoleonic wars that this principle gradually found
universal recognition. During the second half of the nineteenth century
even those States which had not acceded to the Declaration of Paris did
not dissent regarding the necessity for effectiveness of blockade.
[Footnote 757: See Fauchille, _Blocus_, pp. 74-109.]
[Sidenote: Condition of Effectiveness of Blockade.]
§ 380. The condition of effectiveness of blockade, as defined by the
Declaration of Paris, is its maintenance _by such a force as is
sufficient really to prevent access to the coast_. But no unanimity
exists respecting what is required to constitute an effective blockade
according to this definition. Apart from differences of opinion
regarding points of minor interest, it may be stated that in the main
there are two conflicting opinions.
According to one opinion, the definition of an effective blockade
pronounced by the First Armed Neutrality of 1780 is valid, and a
blockade is effective only when the approach to the coast is barred by a
chain of men-of-war anchored on the spot and so near to one another that
the line cannot be passed without obvious danger to the passing
vessel.[758] This corresponds to the practice hitherto followed by
France.
[Footnote 758: See Hautefeuille, II. p. 194; Gessner, p. 179; Kleen, I.
§ 129; Boeck, Nos. 676-681; Dupuis, Nos. 173-174; Fauchille, _Blocus_,
pp. 110-142. Phillimore, III. § 293, takes up the same standpoint in so
far as a blockade _de facto_ is concerned:--"A blockade _de facto_
should be effected by stationing a number of ships, and forming as it
were an arch of circumvallation round the mouth of the prohibited port,
where, if the arch fails in any one part, the blockade itself fails
altogether."]
According to another opinion, a blockade is effective when the approach
is watched--to use the words of Dr. Lushington[759]--"by a force
sufficient to render the egress and ingress dangerous, or, in other
words, save under peculiar circumstances, as fogs, violent winds, and
some necessary absences, sufficient to render the capture of vessels
attempting to go in or come out most probable." According to this
opinion there need be no chain of anchored men-of-war to expose any
vessels attempting to break the blockade to a cross fire, but a real
danger of capture suffices, whether the danger is caused by cruising or
anchored men-of-war. This is the standpoint of theory and practice of
Great Britain and the United States, and it seems likewise to be that of
Germany and several German writers.[760] The blockade during the
American War of the whole coast of the Confederate States to the extent
of 2500 nautical miles by four hundred Federal cruisers could, of
course, only be maintained by cruising vessels; and the fact that all
neutral maritime States recognised it as effective shows that the
opinion of dissenting writers has more theoretical than practical
importance.
[Footnote 759: In his judgment in the case of the _Franciska_ (1855),
Spinks, 287.]
[Footnote 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.
[Footnote 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.]
[Footnote 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]
[Footnote 763: The _Franciska_ (1855), Spinks, 287. See Hall, § 260, and
Holland, _Studies_, pp. 166-167.]
[Sidenote: 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."
[Footnote 764: In his judgment in the case of the _Franciska_ (1855),
Spinks, 287.]
[Sidenote: Cessation of Effectiveness.]
§ 382. A blockade is effective so long as the danger lasts which makes
probable the capture of such vessels as attempt to pass the approach. A
blockade, therefore, ceases _ipso facto_ by the absence of such danger,
whether the blockading men-of-war are driven away, or are sent away for
the fulfilment of some task which has nothing to do with the blockade,
or voluntarily withdraw, or allow the passage of vessels in other cases
than those which are exceptionally admissible. Thus, when in 1861,
during the American Civil War, the Federal cruiser _Niagara_, which
blockaded Charleston, was sent away and her place was taken after five
days by the _Minnesota_, the blockade ceased to be effective, although
the Federal Government refused to recognise this.[765] Thus, further,
when during the Crimean War Great Britain allowed Russian vessels to
export goods from blockaded ports, and accordingly the egress of such
vessels from the blockaded port of Riga was permitted, the blockade of
Riga ceased to be effective, because it tried to interfere with neutral
commerce only; therefore, the capture of the Danish vessel
_Franciska_[766] for attempting to break the blockade was not upheld.
[Footnote 765: See Mountague Bernard, _Neutrality of Great Britain
during the American Civil War_ (1870), pp. 237-239.]
[Footnote 766: Spinks, 287. See above, § 370.]
On the other hand, practice[767] and the majority of writers have always
recognised the fact that a blockade does not cease to be effective in
case the blockading force is driven away for a short time through stress
of weather, and article 4 of the Declaration of London precisely enacts
that "a blockade is not regarded as raised if the blockading force is
temporarily withdrawn on account of stress of weather." English[768]
writers, further, have hitherto denied that a blockade loses
effectiveness through a blockading man-of-war being absent for a short
time for the purpose of chasing a vessel which succeeded in passing the
approach unhindered,[769] but the Declaration of London does not
recognise this.[770]
[Footnote 767: The _Columbia_ (1799), 1 C. Rob. 154.]
[Footnote 768: See Twiss, II. § 103, p. 201, and Phillimore, III. §
294.]
[Footnote 769: See article 37 of U.S. Naval War Code.]
[Footnote 770: See the Report of the Drafting Committee on article 4 of
the Declaration of London.]
IV
BREACH OF BLOCKADE
See the literature quoted above at the commencement of § 368.
[Sidenote: Definition of Breach of Blockade.]
§ 383. Breach or violation of blockade is the unallowed ingress or
egress of a vessel in spite of the blockade. The attempted breach is, so
far as punishment is concerned, treated in the same way as the
consummated breach, but the practice of States has hitherto differed
with regard to the question at what time and by what act an attempt to
break a blockade commences.
It must be specially observed that the blockade-runner violates
International Law as little as the contraband carrier. Both (see below,
§ 398) violate injunctions of the belligerent concerned.
[Sidenote: No Breach without Notice of Blockade.]
§ 384. Since breach of blockade is, from the standpoint of the
blockading belligerent, a criminal act, knowledge on the part of a
vessel of the existence of a blockade is essential for making her egress
or ingress a breach of blockade.
It is for this reason that Continental theory and practice have never
considered a blockade established without local and diplomatic
notification, so that every vessel might have, or might be supposed to
have, notice of the existence of a blockade. And for the same reason
some States, as France and Italy, have never considered a vessel to have
committed a breach of blockade unless a special warning was given her
before her attempted ingress by one of the blockading cruisers stopping
her and recording the warning upon her log-book.[771]
[Footnote 771: See above, § 376.]
British, American, and Japanese practice regarding the necessary
knowledge of the existence of a blockade on the part of a vessel has
always made a distinction between actual and constructive notice, no
breach of blockade having been held to exist without either the one or
the other.[772] Actual notice has been considered knowledge acquired by
a direct warning from one of the blockading men-of-war or knowledge
acquired from any other public or private source of information.
Constructive knowledge has been presumed knowledge of the blockade on
the part of a vessel on the ground either of notoriety or of diplomatic
notification. The existence of a blockade has always been presumed to be
notorious to vessels within the blockaded ports, but it has been a
question of fact whether it was notorious to other vessels. And
knowledge of the existence of a blockade has always been presumed on the
part of a vessel in case sufficient time had elapsed after the home
State of the vessel had received diplomatic notification of the
blockade, so that it could inform thereof all vessels sailing under its
flag, whether or no they had actually received, or taken notice of, the
information.[773]
[Footnote 772: See Holland, _Prize Law_, §§ 107, 114-127; U.S. Naval War
Code, article 39; Japanese Prize Law, article 30.]
[Footnote 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).
[Sidenote: 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]
[Footnote 774: See Hautefeuille, II. p. 134; Kleen, I. § 137; Gessner,
p. 202; Dupuis, No. 185; Fauchille, _Blocus_, p. 322.]
[Footnote 775: See Bluntschli, § 835; Perels, § 51; Geffcken in
Holtzendorff, IV. p. 763; Rivier, II. p. 431. See also § 25 of the
Prussian Regulations (1864) concerning Naval Prizes, and article 31 of
the Japanese Naval Prize Law.]
[Footnote 776: See Holland, _Prize Law_, § 133, and U.S. Naval War Code,
article 42; the _Betsey_ (1799), 1 C. Rob. 332.]
[Footnote 777: On this doctrine, see below, § 400, p. 499, note 1.]
[Footnote 778: See Holland, _Prize Law_, § 134, and the case of the
_James Cook_ (1810), Edwards, 261.]
[Footnote 779: 3 Wallace, § 14.]
[Footnote 780: 3 Wallace, 559.]
[Footnote 781: 5 Wallace, 1.]
[Footnote 782: 5 Wallace, 28.]
[Footnote 783: See _Parliamentary Papers_, Miscellaneous, N. 1 (1900),
"Correspondence regarding the Seizure of the British Vessels _Springbok_
and _Peterhoff_ by the United States Cruisers in 1863."]
It is true that the majority of authorities[784] assert the illegality
of these judgments of the American Prize Courts, but it is a fact that
Great Britain at the time recognised as correct the principles which are
the basis of these judgments.
[Footnote 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.]
[Sidenote: What constitutes an Attempt to break Blockade according to
the Declaration of London.]
§ 385_a_. 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]
[Footnote 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]
[Footnote 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.
[Sidenote: 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.
[Footnote 787: See above, § 370.]
According to the practice which has hitherto been quite general,
whenever a vessel either by need of repairs,[788] stress of
weather,[789] want of water[790] or provisions, or upon any other ground
was absolutely obliged to enter a blockaded port, such ingress did not
constitute a breach of blockade. On the other hand, according to the
British practice at any rate, ingress did not cease to be breach of
blockade if caused by intoxication of the master,[791] ignorance[792] of
the coast, loss of compass,[793] endeavour to get a pilot,[794] and the
like, or an attempt to ascertain[795] whether the blockade was
raised.[796]
[Footnote 788: The _Charlotta_ (1810), Edwards, 252.]
[Footnote 789: The _Fortuna_ (1803), 5 C. Rob. 27.]
[Footnote 790: The _Hurtige Hanne_ (1799), 2 C. Rob. 124.]
[Footnote 791: The _Shepherdess_ (1804), 5 C. Rob. 262.]
[Footnote 792: The _Adonis_ (1804), 5 C. Rob. 256.]
[Footnote 793: The _Elizabeth_ (1810), Edwards, 198.]
[Footnote 794: The _Neutralitet_ (1805), 6 C. Rob. 30.]
[Footnote 795: The _Spes_ and _Irene_ (1804), 5 C. Rob. 76.]
[Footnote 796: See Holland, _Prize Law_, §§ 135-136.]
The Declaration of London recognises that necessity makes exceptions to
the rule that vessels may not enter a blockaded port. Article 7 enacts
that "in circumstances of distress, acknowledged by an officer of the
blockading force, a neutral vessel may enter a place under blockade, and
subsequently leave it, provided that she has neither discharged nor
shipped any cargo there." It has, however, to be kept in view that
article 7, firstly, does not define the term _circumstances of
distress_, and, secondly, makes it a condition that the circumstances
concerned must be acknowledged by an officer of the blockading force.
Everything is, therefore, _prima facie_ at any rate, left to the
consideration of the respective officer. A vessel in distress will have
to signal to the man-of-war of the blockading force which she meets
within the area of operations that she intends to enter the blockaded
port, and the commander of the man-of-war will have to convince himself
that circumstances of distress really exist, and that no fraud is
intended. The commander may deny the condition of distress, and then the
vessel may not proceed, although the State whose flag she flies may ask
for indemnities in case there really was distress and the vessel was
lost or damaged by not being allowed to enter the blockaded port. On the
other hand, when once the commander of the man-of-war has acknowledged
that the respective vessel is in a condition of distress, it is not in
his discretion, but he is in duty bound,[797] to allow her to enter the
blockaded port.
[Footnote 797: See Report of the Drafting Committee on article 7.]
[Sidenote: When Egress is not considered Breach of Blockade.]
§ 387. There are a few cases of egress which, according to the hitherto
prevailing practice of Great Britain and most other States, were not
considered breaches of blockade outwards.[798] Thus, a vessel that was
in a blockaded port before the commencement of the blockade[799] was
allowed to sail from this port in ballast, as was also a vessel that had
entered during a blockade either in ignorance of it or with the
permission of the blockading squadron.[800] Thus, further, a vessel the
cargo of which was put on board before the commencement of the blockade
was allowed to leave the port afterwards unhindered.[801] Thus, again, a
vessel obliged by absolute necessity to enter a blockaded port was
afterwards allowed to leave it unhindered. And a vessel employed by the
diplomatic envoy of a neutral State for the exclusive purpose of sending
home from a blockaded port distressed seamen of his nationality was also
allowed to pass unhindered.[802]
[Footnote 798: See Holland, _Prize Law_, § 130; Twiss, II. § 113;
Phillimore, III. § 313.]
[Footnote 799: The _Frederick Moltke_ (1798), 1 C. Rob. 86.]
[Footnote 800: The _Juno_ (1799), 2 C. Rob. 116.]
[Footnote 801: The _Vrouw Judith_ (1799), 1 C. Rob. 150.]
[Footnote 802: The _Rose in Bloom_ (1811), 1 Dodson, 55.]
The Declaration of London recognises by article 7--see above, §
386--that a vessel which, on account of distress, entered a blockaded
port, must be allowed to leave it afterwards, provided she has neither
discharged nor shipped cargo there. And article 16, second
paragraph--see above, § 384--enacts that a vessel coming out of a
blockaded port must be allowed to pass free, if, through the negligence
of the commander of the blockading fleet, no declaration of blockade has
been notified to the local authorities, or if, in the declaration as
notified, no period has been mentioned within which neutral vessels
might come out. But beyond these the Declaration of London does not
specify any cases in which egress is not considered breach of blockade.
The International Prize Court will, if established, have to develop a
more detailed practice concerning the matter.
[Sidenote: Passage through Unblockaded Canal no Breach of Blockade.]
§ 388. A breach of blockade can only be committed by passing through the
blockaded approach. Therefore, if the maritime approach to a port is
blockaded whilst an inland canal leads to another unblockaded port of
the enemy or to a neutral port, no breach of blockade is committed by
the egress or the ingress of a vessel passing such canal for the purpose
of reaching the blockaded port.[803]
[Footnote 803: The _Stert_ (1801), 4 C. Rob. 65. See Phillimore, III. §
314.]
Although the Declaration of London does not mention this point, the
International Prize Court would surely decide it as stated, since this
decision is based on common sense.
V
CONSEQUENCES OF BREACH OF BLOCKADE
See the literature quoted above at the commencement of § 368.
[Sidenote: Capture of Blockade-running Vessels.]
§ 389. It is universally recognised that a vessel may be captured for a
breach of blockade _in delicto_ only, that means, during the time of an
attempt to break it, or of the breach itself. But here again practice as
well as theory hitherto have differed much, since there has been no
unanimity with regard to the extent of time during which an attempt of
breach and the breach itself could be said to be actually continuing.
It has already been stated above in § 385 that it has been a moot point
from what moment a breach of blockade could be said to have been
attempted, and that according to the practice of Great Britain and the
United States an attempt was to be found in the fact that a vessel
destined for a blockaded port was starting on her voyage. It is obvious
that the controversy bore upon the question from what point of time a
blockade-running vessel must be considered _in delicto_.
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.
[Footnote 804: The _Welvaart van Pillaw_ (1799), 2 C. Rob. 128; _General
Hamilton_ (1805), 6 C. Rob. 61.]
[Footnote 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]
[Footnote 806: See the Report of the Drafting Committee on article 20.]
[Sidenote: 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.
[Footnote 807: See Bynkershoek, _Quaest. jur. publ._ I. c. 11.]
[Footnote 808: See Calvo, V. §§ 2897-2898. U.S. Naval War Code, article
45.]
[Footnote 809: See Fauchille, _Blocus_, pp. 357-394: Gessner, pp.
210-214; Perels, § 51, pp. 276-278.]
[Footnote 810: The _Mercurius_ (1798), 1 C. Rob. 80; the _Columbia_
(1799), 1 C. Rob. 154; the _Alexander_ (1801), 4 C. Rob. 93; the
_Adonis_ (1804), 5 C. Rob. 256; the _Exchange_ (1808), Edwards, 39; the
_Panaghia Rhomba_ (1858), 12 Moore, P.C. 168--See Phillimore, III. §§
318-319.]
[Footnote 811: The _Maria_ (1805), 6 C Rob. 201.]
[Footnote 812: See above, § 385 (4).]
The Declaration of London settles the matter by a very simple rule, for
according to article 21 the penalty for blockade-breaking is
condemnation of the vessel in all cases, and condemnation of the cargo
also, unless the owner proves that at the time of the shipment of the
goods the shipper _neither knew nor could have known_ of the intention
of the vessel to break the blockade. The case in which the whole or part
of the cargo consists of contraband, is not mentioned by article 21, but
its condemnation is a matter of course.