United States held that a single cruiser was adequate to maintain CHAP. an effective blockade of the port of San Juan in Porto Rico.1

2

XXXII

In addition to being effectively maintained, a blockade must Notification be duly notified to neutral states. Before 1909 Great Britain and the United States held that notification must be made by diplomatic proclamation, and that, following such proclamation, knowledge of the blockade on the part of neutral vessels might be presumed. Moreover, mere notoriety of the existence of the blockade was held to be sufficient to raise a presumption of knowledge. In the leading case of the Neptunus the British court ruled that the fact of official notification raised an absolute presumption of knowledge on the part of the neutral captain; nevertheless, the vessel, captured in attempting to enter the port of Havre, was released in this case owing to misinformation given to the captain by an admiral of the British fleet. In the case of the Adula3 the Supreme Court of the United States upheld the legality of a de facto blockade of Guantánamo in 1898, although no proclamation of the blockade had ever been made.*

On the other hand, France and other continental states held that information of a blockade must be given to the vessel directly by the blockading fleet, so that, in effect, a neutral vessel could make a first test of the effectiveness of a blockade with impunity. This position was abandoned in the Declaration of London, which provided for a general declaration of blockade, with specification of details, together with a notification of the blockade to neutral powers and to the local authorities of the blockaded port. Mere de facto blockades thus became invalid. The liability of the neutral vessel to capture continued to be contingent upon its knowledge, actual or presumptive, of the blockade."

seizure

Prior to the Declaration of London conflicting views were held Place of as to the time when the offense of breach of blockade might be committed and as to the place where a vessel might be seized.

1

1 During the World War the operations of the submarine made it impossible to maintain the cordon of warships formerly regarded as an accompaniment of legal blockade on a large scale. The complete control of the seas by one of the belligerents made it possible, however, to maintain an effective blockade at greater distances from the blockaded coast.

22 C. Rob., 110 (1799). Scott, Cases, 935; Evans, 646.

3176 U. S., 361 (1900). Evans, Cases, 661.

For the important case of the Circassian, 2 Wallace, 135, dealing with the legality of the blockade of a port occupied by the forces of the blockading state, see Hall, International Law, § 263.

Art. 8, 9, 10.

6 Art. 11.

'Art. 14, 15, 16. France abandoned her earlier doctrine in 1914.

CHAP.

XXXII

b. Doctrines

of "continu

ous voyage" and "ultimate destination"

British and American courts enforced the rule that a vessel which sailed from its port of departure with the intention to break blockade might be seized at any point on its voyage toward the blockaded port, and that should the vessel succeed in breaking blockade it was liable to capture at any time during its return voyage. On the other hand, France, Italy, and other states looked upon a blockade as in the nature of a line drawn around the blockaded port, and held that the offense of breach of blockade consisted in attempting to cross this line. A compromise was effected in the Declaration of London which 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."' 1

During the American Civil War new conditions confronted by the blockading fleet resulted in the introduction of new doctrines of blockade. Neutral vessels were captured on their way to neutral ports lying off the Confederate coasts, and were condemned on the ground that the neutral ports were only stopping-places and that the ultimate destination of the vessel was a blockaded port. This doctrine, already applied by British courts in dealing with prohibited colonial trade,2 was known as the doctrine of "continuous voyage." Moreover, the further and more important innovation was introduced that where the vessel itself had a bona fide neutral destination, but its cargo, after being deposited in the neutral port, was to be transshipped to a smaller and swifter vessel to be used as a blockade-runner, the said cargo, whether contraband or not, was liable to seizure. The term "continuous transports, or the doctrine of "ultimate destination," has been applied to the rule governing such cargoes. In the leading case of the Springbok the Supreme Court condemned the cargo of a British vessel captured en route to Nassau on the ground that the character of the cargo was such as to indicate that its true destination was a blockaded port. "We cannot doubt," said the court, "that the cargo was originally shipped with intent to violate the blockade;

Art. 17. For the penalty for breach of blockade, see The Panaghia Rhomba, 12 Moore, P. C., 168 (1858), and The Wren, 6 Wallace, 582 (1867). Scott, Cases, 951, 954. For a modified rule introduced during the World War, see below, p. 541.

See the Rule of 1756, below, p. 549. The doctrine appears to have been extended to blockade first by France during the Crimean War. See the Frau Houwina, Imperial Prize Court, May 26, 1855. Scott, Cases, 995. 5 Wallace, 1 (1866). Evans, Cases, 729; II, 392.

Stowell and Munro, Cases,

XXXII

that the owners of the cargo intended that it should be transhipped CHAP. at Nassau to a smaller vessel more likely to succeed in reaching safely a blockaded port than the Springbok: that the voyage from London to the blockaded port was, as to cargo, both in law and in the intent of the parties, one voyage; and that the liability to condemnation, if captured during any part of the voyage, attached to the cargo from the time of sailing."1

The rule applied in the case of the Springbok brought forth sharp criticism from neutral states as having the effect of extending the blockade of enemy ports to neutral ports as well. A committee of the Institute of International Law condemned the theory as "a serious inroad upon the rights of neutral nations." Finally, the Declaration of London rejected it in laying down the provision that "whatever may be the ulterior destination of a vessel or of her cargo, she cannot be captured for breach of blockade, if, at the moment, she is on her way to a non-blockaded port."

World War

During the World War the existing rules of blockade were Practice during the enlarged and extended to meet conditions for which no provision had been made. On February 4, 1915, in retaliation for British measures taken in the North Sea, Germany issued a decree making the waters surrounding the British Isles a war zone within which all enemy vessels, of commerce as well as of war, would be sunk without warning. This war zone did not constitute a blockade in the strict sense, both because it failed to meet the test of effectiveness and because it was not directed against neutral trade with the enemy. By way of retaliation, Great Britain announced on March 1, 1915, that it was her intention "to detain and take into port ships carrying goods of presumed enemy destination, ownership, or origin." The procedure was not designated as a blockade and was not planned to conform to the conditions. of a valid blockade. An order in council of March 11 provided that all vessels of enemy destination be required to discharge their

With respect to the character of the cargo the court observed that it referred to it only as evidence of its distination; for "contraband or not, it could not be condemned if really destined for Nassau and not beyond; and contraband or not, it must be condemned if destined to any rebel port.

For cases illustrating the doctrine of ultimate destination as applied to contraband, see below, p. 544. The student should observe that in many cases the courts failed to distinguish carefully between the rules governing blockade and those governing contraband, with resulting confusion on the part of critics and commentators.

Cited by Moore, Digest, VII, 732.

Art. 19.

Garner, op. cit., II, § 511.

CHAP. XXXII

Rationing of neutral countries

goods in a British port and that vessels of neutral destination might be required to do the same.1 The United States refused to accept the plea of retaliation in justification of illegal measures injurious to neutral states, and protested against the provisions of the order as constituting "a practical assertion of unlimited belligerent rights over neutral commerce within the whole European area. In reply the British Government pointed out that the neutral countries adjacent to Germany afforded her convenient opportunities for carrying on trade with foreign countries, and that a blockade limited to enemy ports "would leave open routes by which all kinds of German commerce could pass almost as easily as through the ports in her own territory. If, it was argued, the United States might, when a belligerent, intercept goods destined for enemy territory before they reached the neutral ports from which they were to be reëxported, was it unfair for Great Britain to pursue the same methods when the second stage of the journey was by land?

Pursuant to the policy of cutting off all goods destined to the enemy, Great Britain and France adopted a system of "rationing" neutral countries, so as to deny them food and other commodities to replace their own domestic supplies which were being sold to Germany. Upon the entrance of the United States into the war an embargo was placed upon the shipment of a large number of commodities to the neutral countries adjacent to the Central Powers, except upon condition of obtaining a license from the President.5 This system was the subject of many complaints from neutral states, which contested the statistics upon which the rationing was carried out. With the United States a belligerent, however, the protest of neutrals was of no avail, and the war closed with the doctrine of "ultimate destination" applied in the most rigid form. The final outcome of practice during the World War was, therefore, to leave the whole law of blockade in a much more unsettled condition than it was in 1907.6

1

The right of a belligerent to intercept goods of a military char

Scott, Cases, 1175, 1177.

Note of March 30, 1915, Am. White Book, I, 69 ff. See also note of October 21, 1915. Ibid., III, 25 ff.

Note of July 24, 1915. Ibid, II, 179.

For the reference in mind, see above, p. 540.

See the instance of the Dutch ships detained in port for lack of licenses, above, p. 531.

For a general discussion of practice during the World War, see Garner, op. cit., II, Chap. XXXIII; Hyde, International Law, II, 829-832.

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contraband?

acter on their way to the enemy was at the time Grotius wrote only CHAP. another aspect of the right to maintain blockade. Both were means by which a belligerent sought to isolate the enemy, and the capture c. What is of contraband goods was merely an extension of the scope of blockade beyond the enemy port. The question which Grotius set out to answer remained a subject of international controversy until the adoption of the Declaration of London: what articles destined to the enemy are to be regarded as of such military advantage to him as to warrant the belligerent in capturing them, as well as the vessel carrying them? Arms and other munitions of war were obviously of such character, and Grotius was of the belief that a neutral furnishing them became "of the party of the enemy. On the other hand, there were articles that were of no use in war; and the carriage of these was, therefore, not a matter of complaint by the belligerent. But, again, there were objects "useful both in war and out of war, such as money, provisions, ships, and other fittings." These, it was stated, might be intercepted by the belligerent according to the circumstances of the war, when their carriage to the enemy would prolong his resistance.2

1

doctrines

The classification offered by Grotius became the basis of the Opposing British, and later of the American, doctrine of contraband.3 long and comprehensive list of articles was drawn up and divided between those which were absolute contraband under all circumstances and those which were only conditional contraband depending upon evidence of their intended use for military purposes. The application of the doctrine of conditional contraband, however, frequently involved nice distinctions which left much latitude to the judgment of the prize courts. In contrast with the British and American doctrines, France and other continental states ruled out the class of occasional or conditional contraband, and limited the list of absolute contraband to a smaller number of articles. In both cases the lists of contraband articles changed frequently; and in some instances treaty provisions made the same article contraband with respect to one contracting power and noncontraband with respect to another.*

A final settlement of the long controversy was attempted in

De Jure Belli et Pacis (Eng. trans.), Bk. III, Chap. I, § V.

2 Ibid.

The case of the Peterhoff, 5 Wallace, 28 (1866), offers a modern application of the classification introduced by Grotius. See below, p. 545.

A good survey of the development of the law may be found in Hall, International Law, §§ 237-239.