appeal laid down, that if belligerents themselves trade with blockaded ports they can not be regarded as effectively blockaded. (The Franciska, Moore, P. C. 56.) This decision has special significance at the present time, since it is a matter of common knowledge that Great Britain exports and reexports large quantities of merchandise to Norway, Sweden, Denmark, and Holland, whose ports, so far as American commerce is concerned, she regards as blockaded. The British Foreign Office replied: It is no doubt true that commerce from Sweden and Norway reaches German ports in the Baltic in the same way that commerce still passes to and from Germany across the land frontiers of adjacent states, but this fact does not render the measures which France and Great Britain are taking against German trade the less justifiable. Even if these measures were judged with strict reference to the rules applicable to blockades, a standard by which, in their view, the measures of the Allies ought not to be judged, it must be remembered that the passage of commerce to a blockaded area across a land frontier or across an inland sea has never been held to interfere with the effectiveness of the blockade. If the right to intercept commerce on its way to or from a belligerent country, even though it may enter that country through a neutral port, be granted, it is difficult to see why the interposition of a few miles of sea as well should make any difference. If the doctrine of continuous voyage may rightly be applied to goods going to Germany through Rotterdam, on what ground can it be contended that it is not equally applicable to goods with a similar destination passing through some Swedish port and across the Baltic or even through neutral waters only? It was further asserted that as measured by results, which was said to be the best proof, the blockade was effective. Secretary Lansing to Ambassador Page, Oct. 21, 1915, MS. Department of State, file 763.72112/1861a; 1915 For. Rel. Supp. 578, 583-584; the British Ambassador (Spring Rice) to Mr. Lansing, Apr. 24, 1916 (enclosure), MS. Department of State, file 763.72112/2461; 1916 For. Rel. Supp. 368, 376-377. BREACH OF BLOCKADE §626 The Instructions for the Navy of the United States Governing Maritime Warfare, dated June 1917, provided: 29. Blockade running is a distinct offense which subjects the vessel attempting to commit it, or sailing with intent to commit it, to capture without regard to the nature of her cargo. President Wilson in his neutrality proclamation of August 4, 1914 warned citizens and others within the jurisdiction of the United States that they "cannot attempt to break any blockade which may be lawfully established and maintained during the said wars without incurring the risk of hostile capture and the penalties denounced by the law of nations in that behalf". 38 Stat. 2001; 1914 For. Rel. Supp. 550-551. The unratified Declaration of London provides: "ARTICLE 21. A vessel found guilty of breach of blockade is liable to condemnation. The cargo is also condemned, unless it is proved that at the time of the shipment of the goods the shipper neither knew nor could have known of the intention to break the blockade." 1909 For. Rel. 318, 322. The Japanese Prize Court at Sasebo said in 1905 that "As it is a recognised rule of International Law that a vessel which is guilty of breach of blockade is liable to condemnation irrespective of other facts, there is no need to examine the claimant's other arguments." The "George", II Russ. and Jap. P.C. 171, 172. A neutral vessel was captured by Japanese naval authorities in December 1904 for violating the blockade of Port Arthur. Subsequent to the capture, but prior to the trial of the vessel, the blockade was raised. The claimant argued that the vessel should not be proceeded against since the reason for inflicting punishment, namely, the prevention of future offenses, had ceased. The Higher PrizeCourt affirmed the decree of condemnation imposed by the lower court, saying: The liability to condemnation of a vessel which has committed a breach of blockade, whether the blockade is still in force or not at the time of trial, so long as she is captured after the blockade is established, and while the blockade is still in existence, is recognised by International Law. The "King Arthur”, II Russ. and Jap. P.C. 217, 226 (1905). The Instructions for the Navy of the United States Governing Place of Maritime Warfare, dated June 1917, provided in paragraph 31: The liability of a blockade runner to capture and condemnation begins and terminates with her voyage. If there is good evidence that she sailed with intent to evade the blockade, she is liable to capture from the moment she appears upon the high seas. If a vessel has succeeded in escaping from a blockaded port, she is liable to capture at any time before she completes her voyage. But with the termination of the voyage the offense ends. In condemning for breach of blockade a vessel captured 60 or 70 miles from the blockaded port of Port Arthur, the Japanese Prize Court at Sasebo said: It has been recognised both in the doctrine and practice of International Law that when a blockade is effectively main 440083-43—vol. VII- -10 capture tained, any ship, aware of the existence of the blockade, which proceeds with the intention of entering the blockaded area, is to be considered a blockade runner and condemned, whether her owner knew of the intention or not. On appeal the claimant said that "it is denied that the doctrine and practice of International Law regard an uncompleted action as a breach of blockade" and that "According to the continental principle, only an actual breach of blockade is punishable, while no cognisance is taken of actions which are not overt or completed." On this point the procurator argued to the following effect: It was contended that, according to the continental principle, only the actual running of a blockade is punished, while actions which are not overt and uncompleted are not recognised; and it was argued that the capture was therefore unlawful. But, in the laws which serve as precedents and in practice also, there are at present two systems of International Law generally recognised by civilised powers, the English and the continental systems, the most widely practised of which is the English system. That Japan adopted the English system was generally known to all nations from the time of the war of 1894. As, therefore, our system is different from the continental, why should it not have different results? The Higher Prize Court affirmed the decision, saying on this point: Moreover, since International Law recognises that a ship that is making an attempt to break the blockade may be captured, the third point of the appeal is also groundless. The "Veteran", II Russ. and Jap. P.C. 190, 192, 194, 196, 198. This question was discussed at the Hague Peace Conference of 1907, conflicting views being presented by Italy on the one hand, supported by several continental powers, and the United States on the other hand. An agreement was not reached and no action was taken. For report of the Fourth Commission, including reference to discussions in the Commission and texts of proposals, see Scott, Proceedings of the Hague Peace Conferences: The Conference of 1907 (1920), vol. I, pp. 255–257. Among the views submitted by the various powers preparatory to the London Naval Conference of 1908-9, the "continental" position was concisely expressed by Germany as follows: "12. . . . The capture is permitted only so far as the vessel tries to cross the lines of the blockade or as it is pursued in flagranti by a vessel of the blockading force." To the same general effect, see the views of France, Italy, and the Netherlands. The views presented by the United States corresponded to article 43 of the Naval War Code of 1900 providing as follows: ". . . The liability of a vessel purposing to evade a blockade, to capture and condemnation, begins with her departure from the home port and lasts until her return, unless in the meantime the blockade of the port is raised." The British position was similar. Scott, The Declaration of London, February 26, 1909 (Official Documents) (1919) 63-67. In his instructions to the British Delegation, Sir Edward Grey, after pointing out that "There has been a wide-spread impression that the opposing views are totally irreconcilable", stated that it was the view of the British Government that this impression was not warranted by the actual practice of states. He said in this respect: "... an attentive examination of all the reported cases in the British prize courts relative to questions of blockade has shown that, while the principle of liability to seizure at any point of a voyage to or from a blockaded port or coast has been maintained in theory, there is, in fact, no such case in which a vessel has been condemned for breach of blockade except when actually close to, or directly approaching, the blockaded port or coast. The possibility of change of destination and other circumstances have always been taken into consideration, with the result that, except in cases which admitted of no doubt as to the immediate intentions of the vessel, she has invariably been released. Thus, in practice, the British Courts have acted on a rule which closely approximates to that upheld by continental Governments if freed from the impracticable interpretations and deductions with which the latter has been overlaid by an extreme school of jurists. It therefore appears to His Majesty's Government that it ought not to be impossible to give suitable expression to the common principle. "22. A blockading fleet will, in general, station itself at such a distance from the blockaded coast as will render it reasonably secure from attack from that coast. This distance is likely, under modern conditions of war, to be considerable, and the blockading ships would probably be disposed in two or more lines or groups. The French Government have recently defined the area within which vessels may be seized for breach of blockade, to be the 'rayon d'action of the vessels charged with the duty of insuring the effectiveness of the blockade.' If the rayon d'action may be defined as the area of operation of the blockading force, His Majesty's Government would be disposed to accept a rule to the above effect as fairly representing the actual practice of both the rival systems, and therefore capable of being described as of general application." Ibid. 221-222. The American Delegation reported that: "The question receiving the most attention was that of rayon d'action. Certain States were in favor of a limitation of the rayon d'action to a very small area. The American delegation regarded this limitation as opposed to the principles which it should support." In accepting the basis of discussion resembling article 17 as adopted (infra), the American Delegation made the reservation that the belligerent country or the officer in command of the blockading force should have the right to fix the length of the radius of action, which it was believed should not exceed 1000 miles. The wide expanse of the desired radius of action was said to be based upon the distance that a vessel could travel during the hours of darkness. Ibid. 198, 207-208. Article 17 of the Declaration of London provides: "Neutral vessels may not be captured for breach of blockade except within the area of operations of the warships detailed to render the Blockade measures blockade effective." 1909 For. Rel. 318, 322. See also the comment in the report of the Drafting Committee. Article 20 provides: "A vessel which has broken blockade outwards, or which has attempted to break blockade inwards, is liable to capture so long as she is pursued by a ship of the blockading force. If the pursuit is abandoned, or if the blockade is raised, her capture can no longer be effected." Ibid. The French instructions of Mar. 8, 1934 (art. 80) and the German Prize Ordinance of Aug. 28, 1939 (art. 50) are substantially similar in effect to the Declaration of London. Recueil général périodique et critique des décisions, conventions et lois relatives au droit international public et privé (1935), pt. VI, p. 5; Reichsgesetzblatt (1939) 1585, 1590; Department of Commerce, III Comparative Law Series (1940, no. 1) 35, 44. The Italian Laws of War of July 8, 1938 provide in article 177 that "A vessel can be captured for breach of blockade only by a ship belonging to the blockading force and while it is being pursued." Gazzetta ufficiale, Sept. 15, 1938, no. 211, p. 19. REPRISALS The British and French Governments, in notes dated March 1, 1915 to the Secretary of State, referred to the German declaration of a war zone around the British Isles (see vol. VI, pp. 467-468, of this Digest) and announced: Her opponents are therefore driven to frame retaliatory measures in order in their turn to prevent commodities of any kind from reaching or leaving Germany. These measures will, however, be enforced by the British and French Governments without risk to neutral ships or to neutral or non-combatant life and in strict observance of the dictates of humanity. The British and French Governments will therefore hold themselves free to detain and take into port ships carrying goods of presumed enemy destination, ownership, or origin. It is not intended to confiscate such vessels or cargoes unless they would otherwise be liable to condemnation. The treatment of vessels and cargoes which have sailed before this date will not be affected. This statement was implemented by the British Order in Council of The British Ambassador (Spring Rice) to the Secretary of State (Bryan), Mar. 1, 1915, MS. Department of State, file 763.72/1551; the French Ambassador (Jusserand) to Mr. Bryan, Mar. 1, 1915, ibid. /1550; 1915 For. Rel. Supp. 127. For British Order in Council of Mar. 11, 1915, see 1915 For. Rel. Supp. 144. For corresponding French decree (translation), see IX A.J.I.L. Spec. Supp. (July 1915) 113. For terms of British order of Jan. 10, 1917, see 1917 For. Rel., Supp. 1, pp. 492-493. Bonds captured en route from Germany to the United States were held by the British Prize Court to be goods of enemy origin within the meaning of the Reprisals Order of Mar. 11, 1915, under general rules of prize |