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nations, for most of the important blockades of the last fifty years were so enforced. This is true of the blockade by Great Britain of the Russian Baltic coast in the Crimean War; of the blockade of the Confederate ports by the North in the American Civil War; of the blockade by Denmark of the coast of Prussia in 1864; of the Turkish blockade of the Russian Black Sea coast in the Russo-Turkish War; of the blockade of the Peruvian and Bolivian coast by Chile in 1880; of the American blockade of Cuba and Porto Rico in the Spanish-American War; and of the Japanese blockade of Liaotung peninsula in the Russo-Japanese War.

The test of the efficacy of a blockade is whether it renders it dangerous for vessels to attempt to enter the blockaded port. The instructions issued by the American Government in the Spanish War to its naval commanders express this test in the following language: "A blockade to be binding and effective must be maintained by a force sufficient to render ingress to or egress from the port dangerous." 10 Woolsey defines a sufficient force as such as "will involve a vessel attempting to pass the line of blockade in considerable danger of being taken.” 11 Oppenheim states that "real danger of capture suffices, whether the danger is caused by cruising or anchored men of war."

"12

During the Civil War some question was raised as to the sufficiency of the blockade of the coast line of the Confederate States. All doubts on this subject were, however, set at rest in a communication sent by the British Foreign Secretary, Earl Russell, to the British Ambassador to the United States, Lord Lyons. In this letter, which is dated February 15, 1862, Earl Russell states: 13

Her Majesty's Government, however, are of opinion that, assuming that the blockade is duly notified, and also that a number of ships is stationed and remains at the entrance of a port, sufficient really to prevent access to it or to create an evident danger of entering or leaving it, and that these ships do not voluntarily permit ingress or egress, the fact that various ships may have successfully escaped through it will not of itself prevent the blockade from being an effective one by international law.

• The Olinde Rodrigues, supra.

10 Proclamations and Decrees during the War with Spain, 85.

11 Page 343.

12 II, 162.

13 Parliamentary Papers: Papers relating to the Blockade of the Ports of the Confederate States, p. 119.

The adequacy of the force to maintain a blockade being always, and necessarily, a matter of fact and evidence, and one as to which different opinions may be entertained, a neutral state ought to exercise the greatest caution with reference to the disregard of a de facto and notified blockade; and ought not to disregard it, except when it entertains a conviction, which is shared by neutrals generally having an interest in the matter, that the power of blockade is abused by a state either unable to institute or maintain it, or unwilling, from some motive or other, to do so.

Another point involved in the question of the efficacy of a blockade is the distance of the blockading squadron from the blockaded coast. Here, again, the Declaration of Paris is silent, for it merely requires the presence of a squadron sufficient really to prevent access to the coast of the enemy, and, as generally construed, the fact that ingress and egress are rendered dangerous constitutes a sufficient compliance with the requirement. While the writers who hold to the so-called Continental view claim that ships should be stationed in the immediate offing of the blockaded ports, the Anglo-American doctrine, which allows blockades by cruisers, imposes no such restriction. It would seem that the Anglo-American doctrine is justified by the Declaration of Paris, for the presence of a blockading squadron at a considerable distance from the enemy's coast may be quite as effective in preventing access to it, as ships anchored or cruising within a few miles from the littoral. Neither are the interests of neutrals in any way jeopardized by a blockade carried on at a distance, inasmuch as the purpose of the Declaration of Paris, which was made in the interest of neutrals, was to prevent "paper" blockades. So long as there is a cordon of ships intercepting vessels attempting to reach the blockaded coast from any quarter whatsoever, the blockade is real, and not fictitious, and the distance of the blockading squadron from the enemy's littoral would seem to be immaterial. This theory finds strong support in Hall, who writes as follows:14

Provided access is in fact interdicted, the distance at which the blockading force may be stationed from the closed port is immaterial. Thus Buenos Ayres has been considered to be effectually blockaded by vessels stationed in the neighborhood of Montevideo; and during the Russian War in 1854 the blockade of Riga was maintained at a distance of one

14 Page 702.

hundred and twenty miles from the town by a ship in the Lyser Ort, a channel three miles wide, which forms the only navigable entrance to the gulf.

Modern developments in naval warfare make it essential that a blockading squadron be placed at a considerable distance from shore. The increased range of coast defense guns, the use of controlled and contact mines, the perfection of the submarine,-all make a blockade where the ships are within a few miles of the coast no longer possible. To so limit blockades would be equivalent to prohibiting them altogether. As such a restriction is not imposed either by the letter or the spirit of the Declaration of Paris, we cannot but come to the conclusion that the legality of a blockade is in nowise affected by the distance between the enemy's littoral and the cordon of blockading ships.

Assuming an effective and binding blockade, it becomes necessary to inquire what acts constitute a breach subjecting a captured vessel or its cargo or both to condemnation. On this subject also there are two divergent views, the Continental and the Anglo-American. The Continental writers unanimously uphold the theory that only an attempt to pass the line of blockade for the purpose either of ingress into or egress from a closed port, can constitute a breach of blockade, and that a ship may be successfully accused of violating a blockade only if caught in flagrante delicto.15 On the other hand, the rule developed by the British prize courts is to the effect that the mere sailing for a closed port is a violation of the blockade and that such a vessel is subject to capture at any time after its departure.16 The theory underlying this rule is that the inception of a voyage with an intention of evading a blockade is a beginning of the execution of the intention. The principle applied by the British prize courts has been adopted in the United States. It was accepted as law by the Supreme Court during the Civil War. Thus in the case of The Circassian, 17 the court stated:

15 Nys, III, 192; Ortolan, 357; Hautefeuille, II, 221; F. de Martens, III, 290; Calvo, V, § 2887; Heffter, 347.

16 The Columbia (1779), 1 C. Rob. 154; The Vrow Johanna (1799), 2 C. Rob. 109; Westlake, II, 269; Hall, 710; Oppenheim (2d ed.), II, 469; Halleck (4th ed.), II, 228-9; Phillimore (3d ed.), III, 488.

17 (1864), 2 Wall. 135, 151.

It is a well established principle of prize law as administered by the courts, both of the United States and Great Britain, that sailing from a neutral port with intent to enter a blockaded port, and with knowledge of the existence of the blockade, subjects the vessel and, in most cases, its cargo, to capture and condemnation.

This rule was acted upon by the Government of the United States in the Spanish War. The Instructions to Blockading Vessels and Cruisers provided as follows: 18

8. 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 good prize from the moment she appears upon the high seas. Similarly, if she has succeeded in escaping from a blockaded port she is liable to capture at any time before she reaches her home port. But with the termination of the voyage the offense ends.

The United States Naval War Code of 1900 formulated the same principle in the following language:

19

Art. 44. 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.

An amelioration has been at times introduced into the somewhat rigorous Anglo-American doctrine, to the effect that if the blockaded port is distant from the port of departure, a vessel may in good faith sail for the blockaded port on the expectation of finding the blockade lifted by the time it arrives, provided its intention is not to attempt to enter if the blockade still continues. This idea was adopted by Lord Stowell in the case of The Betsey, 20 an American ship which had sailed from an American port for Amsterdam during the British blockade of that city and was captured on the way. Lord Stowell held that as Americans were at such a distance from Europe they might send their ships conjecturally upon the expectation of finding the blockade broken up when they arrived, and ordered the ship restored. In view of the 18 Proclamations and Decrees during the War with Spain, pp. 85 et seq.

19 International Law Discussions, 1903, p. 113. This code was withdrawn in Febru1904.

ary,

20 (1799), 1 C. Rob. 332; see, also, Oppenheim, II, 469.

fact, however, that modern improvements in navigation have practically obliterated all notions of distance, this exception to the general AngloAmerican doctrine that the inception of a voyage for a blockaded port subjects the vessel to capture and condemnation, must be deemed obsolete.

The chief weakness of the general doctrine is that it fails to provide for any locus penitentiæ, or to permit vessels to sail in good faith with alternative destinations. This fact was evidently recognized by the American authorities during the Spanish War, for the Instructions to Blockading Vessels and Cruisers contained the following relaxation of the general principle: 21

A neutral vessel may sail in good faith for a blockaded port with an alternative destination to be decided upon by information as to the continuance of the blockade obtained at an intermediate port. But, in such case, she is not allowed to continue her voyage to the blockaded port in alleged quest of information as to the status of the blockade, but she must obtain it and decide upon her course before she arrives in suspicious vicinity; and if the blockade has been formally established with due notification, any doubt as to the good faith of such a proceeding should go against the neutral and subject her to seizure.

This modification of the rule was also enacted in the United States Naval War Code of 1900.22

The Declaration of London, which to a very large extent represents a compromise between the views of Continental and Anglo-American jurists, has attempted to discard the Anglo-American rule on this point and to give effect to the Continental doctrine. In Article 17 of the portion of the Declaration which relates to blockades, it is provided that "neutral vessels may not be captured for breach of blockade except within the area of operations of the warships detailed to render the blockade effective." Article 20 is to the effect that "a vessel which has broken the blockade outwards, or which has attempted to break the 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." Inasmuch, however,

21 Proclamations and Decrees during the War with Spain, pp. 86 et seq.

22 International Law Discussions, 1903, p. 113.

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