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The practice of England and the United States The Engis unquestionably better suited than that of France tice to be to the present conditions of navigation. Chief Jus- preferred. tice Chase, in speaking of the rule under which sailing from a neutral port with intent to enter a blockaded port, and with knowledge of the existence of the blockade, subjects a vessel to capture, declared that 'we are entirely satisfied with this rule. It was established, with some hesitation, when sailing vessels were the only vehicles of ocean commerce; but now when steam and electricity have made all nations neighbours, and blockade-running from neutral ports seems to have been organised as a business, and almost raised into a profession, it is clearly seen to be indispensable to the efficient exercise of belligerent rights.' If Mr. Chase was correct in his estimate of the effect of steam and electricity, and it appears to me that he undoubtedly was so, there can be no question as to the respective merits of the more lenient or the severer rule. Belligerents will not quietly suffer the results of commerce prejudicial to their warlike operations; and unless they are entrusted with weapons of sufficient strength to enable them to deal with it effectively, they will try, with more or less success, to throw responsibility upon the neutral states, to the confusion of legal distinctions which it is highly convenient to maintain,

2

the case of the Hiawatha (ii Black, 675), which issued from a blockaded port during the civil war, it was contended that, under the Proclamation of April 19, a warning was necessary, but it was decided that it would be absurd to require a warning when the master of a vessel had actual previous knowledge. See also post, p. 160.

1 MM. Bluntschli (§ 832) and Heffter (§ 156) partially adopt the English practice in admitting that special notification to the neutral trader is unnecessary; but they hold that capture can only be effected during an actual attempt at violation on the blockaded spot itself.

2 The Circassian, ii Wallace, 151.

Effect of

cessation

ade.

and to the vastly increased danger of national conflicts.

§ 58. According to the English theory, as fully as of block by that adopted in France, the limitations imposed on neutral commerce by the right of blockade depend for their validity solely upon the fact that a blockade really exists at any given moment. A belligerent, therefore, has no power to subject a neutral to penalties from the time that a port ceases to be effectively watched, and the Government of the United States was undoubtedly wrong in holding the opinion put forward by it in 1861, that a blockade established by notification continues in effect until notice of its relinquishment is given by proclamation.1 It is no doubt the duty of a belligerent state which has formally notified the commencement of a blockade to give equal and immediate publicity to its discontinuance, but a vessel bound for, or approaching, a port at a time between the actual cessation of blockade and the public notification of the fact, is not liable to confiscation. If a ship is captured under such circumstances, the utmost, but also the legitimate, effect of a notification is that the neutral, who has probably started with the intention of violating the blockade, and whose adventure has since become innocent from events with which he has had nothing to do, is bound to prove the existence of a state of facts which frees his property from the penalty to which it is primâ facie exposed. The presumption of the court will be that a regularly notified blockade continues to exist until that presumption is displaced by evidence.2 In the case of a de facto blockade the burden of proof lies always upon the captor.

1 Mr. Seward to Lord Lyons, May 27, 1861; ap. Bernard, 238. 2 Bernard, 239. See also on the subject Phillimore, iii. 290,

and The Neptunus, i Rob. 171; The Circassian, ii Wallace (American), 150; The Baigorry, ib. 480.

under

vessels lyport when it is placed under

ing in a

blockade

can come

$ 59. Neutral vessels lying in a belligerent port Condition at the moment when it is placed under blockade are which subjected to special usages with respect to which there is no difference of opinion. It would be obviously unjust to shut up the unoffending neutral in a common prison with the belligerent; on the other hand the object of a blockade being to cut off all trade out. from the closed port, the operation would be to a great extent nullified if all vessels within the harbour at the inception of the blockade were allowed to come out with cargo. Hence, exit is allowed only under certain conditions, and it is necessary, if a vessel is to appear at the mouth of the port in a state according with these conditions, that she shall be informed beforehand of the fact that they have been imposed. A general notification is therefore sent to the authorities of the blockaded port, announcing the commencement of the blockade and specifying a time during which vessels may come out. It being certain that a notice affecting the narrow space of a particular port must of necessity become known to every person within it, the practice of most nations dispenses with further warning; and after a blockade has existed for a while, it is impossible for those within to be ignorant of the forcible suspension of their commerce,' so that even without notice, warning to each ship is superfluous. But the French appear to extend the privilege of special warning to vessels issuing from a blockaded port with cargo laden after establishment of the blockade.2

i

The Vrow Judith, i Rob. 152. In 1855 it was laid down that 'prima facie every vessel whatsoever, laden with a cargo, quitting a blockaded port, is liable to condemnation on that account, and must satisfactorily establish her exception to the

general rule,' The Otto and Olaf,
Spinks, 259.

2 The Eliza Cornish, Pistoye
et Duverdy, i. 387. A few excep-
tional treaties provide for special
warning to vessels issuing with
cargo laden after the beginning
of the blockade. These have

The period which is allowed for the exit of ships is usually fixed at fifteen days,1 and during this time vessels may issue freely in ballast or with a cargo bona fide bought and shipped before the commencement of the blockade.2 Probably fifteen days should be looked upon as a minimum period, many ports being so situated as to render exit from them within any given time more difficult than from those which have usually been the subject of the fifteen days' rule. In 1838, on establishing the blockade of Buenos Ayres, France allowed neutral ships to come out for fortytwo days. It does not appear what circumstances then demanded so exceptional an indulgence; but as sea-going vessels now ascend to Rosario, it is clear that if the Argentine ports were blockaded at the present day, a considerable time might elapse before the existence of a blockade was known to all neutral vessels, and that they might have great difficulty in reaching the mouth of the river within any short period. Even where a port on a navigable river is much nearer to its mouth than in the supposed case, special circumstances might often require an extension of time. When New Orleans was blockaded in 1861 the water on the bar of the Mississippi was unusually low, and the commander of the blockading squadron

been concluded between the Hanseatic Towns and Mexico, 1828 (De Martens, Nouv. Supp. i. 684); the United States and Brazil, 1828 (Nouv. Rec. ix. 62); United States and Mexico, 1831 (ib. x. 340); United States and Venezuela, 1836 (ib. Nouv. Sér. iv. 560); United States and Bolivia, 1836 (ib. vi. 120); France and Ecuador, 1843 (Murhard, v. 410).

1 This time was given in 1848 and 1864 by Denmark; by

England and France during the
Crimean War; by the United
States during the Civil War; and
by France in the war of 1870.

2 The Vrow Judith, i Rob. 152; The Franciska, Spinks, 122; Heffter, § 157; Bluntschli, § 837. But a vessel must not enter in ballast to bring away a cargo bought before the commencement of a blockade. The Comet, Edwards, 32.

3 De Martens, Nouv. Rec. Nouv. Sér. vi. 503,

extended the permitted time in favour of vessels of deep draught.1

constitute

is a breach

of block

ade.

§ 60. The acts which constitute a violation of What acts blockade necessarily vary with the theory which held by the belligerent maintaining the blockade as to the conditions of its legality; and their nature has been already to a great extent indicated in discussing the effect of notification. Of the French practice it is sufficient to say that, as it does not admit a presumption in favour of the continuance of a blockade, a distinct attempt to cross the actual barrier by force or fraud is, as a general rule, necessary to justify condemnation. Occasionally, however, an inference as to intention seems to be allowed, as in the case of a vessel captured before actually endeavouring to enter a blockaded port, but while making for it after having received in the course of her voyage a regular notification from a belligerent cruiser.2 The English and American Courts, on the other hand, in arguing from a presumption of continuance to the intention of the neutral trader, necessarily subject to investigation all acts done from the commencement of his voyage. If it appears from these that, though anxious to go to the blockaded port, and sailing with that destination, he had no intention of braving the belligerent prohibition, his property will not be condemned. Thus a vessel has been held innocent which sailed from America for Hamburg with an intermediate destination to an English or neutral port for inquiry; and in another case, although the ship's papers did not show in distinct terms at what place inquiry was

1 Consul Mure to Lord John Russell, June 6, 1861, ap. Bernard, 242.

2 Calvo, § 1176. Ortolan, ii. 349 and 353, approves of the practice of the English Courts

with respect to vessels approach-
ing a blockaded port on the pre-
text of inquiring whether the
blockade still subsists. La Caro-
lina, Pistoye et Duverdy, i.
381.

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