real danger of capture suffices, whether the danger is caused by cruising or anchored men-of-war. This is the standpoint of the theory and practice of Great Britain and the United States, and it seems likewise to be that of Germany and several German writers.1 The blockade during the American Civil 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 had more theoretical than practical importance. The Declaration of London, if it had been ratified, would have settled the controversy at least to the extent of determining that the question whether a blockade is effective, is a question of fact,'2 and thereby by implication recognising the before-mentioned decision of Dr. Lushington. But, as has been explained, the declaration remains unratified, and it was abandoned by Great Britain and France during the World War. If the Anglo-American standpoint be adopted, since the question of effectiveness is one of fact, and real danger to passing vessels is the characteristic of effectiveness, it must be recognised 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 it. 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.4 Moreover, in certain cases, and in the absence of a sufficient number of men-of-war, a blockade may be made effec 1 See Perels, § 49; Bluntschli, § 829; Liszt, § 41, iii. • Article 3. 3 Above, §§ 292, 368. 4 The Franciska, (1855) Spinks 287. See Hall, § 260, and Holland, Studies, pp. 166-167. Amount which Effectiveness. tive through planting land batteries within range of any vessel attempting to pass,1 provided that there be at least one man-of-war on the spot. But a stone blockade,2 so called because vessels laden with stones are sunk in the channel to block the approach, is not an effective blockade. § 381. It is impossible to state exactly what degree of Danger of danger to a vessel attempting to pass is necessary creates to prove an effective blockade. It is recognised that a blockade does not cease to be effective because now and then a vessel succeeds in passing the line unhindered, provided that there was so much danger as to make her capture probable. Dr. Lushington strikingly dealt with the matter in the following words: 3 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 1 The Nancy, (1809) 1 Acton 63; The Circassian, (1864) 2 Wall. 135; The Olinde Rodrigues, (1898) 174 U.S. 510. See also Bluntschli, § 829; Perels, § 49; Geffcken in Holtzendorff, iv. p. 750; Walker, Manual, § 78. 2 See above, 368. As to laying mines off enemy ports and coasts to interrupt commercial navigation, see above, § 182a. * In his judgment in The Franciska, (1855) Spinks 287. ingress or egress did not take place with the consent of the blockading squadron.' of Effec § 382. A blockade is effective so long as the danger Cessation lasts which makes probable the capture of such vessels tiveness. as attempt to pass the approach. It 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. Thus, further, when, during the Crimean War, Great Britain allowed Russian vessels to export goods from blockaded ports, and accordingly permitted the egress of such vessels from the blockaded port of Riga, the blockade ceased to be effective, because it tried to interfere with neutral commerce only; and the capture of the Danish vessel Franciska 2 for attempting to break the blockade was not upheld. On the other hand, practice, and the majority of writers, have always recognised 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 unratified Declaration of London adopted this view by providing that 'a blockade is not regarded as raised if the blockading force is temporarily withdrawn on account of stress of weather.' English 4 1 See Mountague Bernard, Neutrality of Great Britain during the American Civil War (1870), pp. 237239. 2 Spinks 287. See above, § 370. 3 The Columbia, (1799) 1 C. Rob. 154. 4 See Twiss, ii. § 103, p. 201, and Phillimore, iii. § 294. writers have also denied that a blockade ceases to be effective because a blockading man-of-war is absent for a short time for the purpose of chasing a vessel which succeeded in passing the approach unhindered,1 but the unratified Declaration of London did not recognise this.2 Definition of Breach IV BREACH OF BLOCKADE See the literature quoted above at the commencement of § 368. §383. Breach or violation of blockade is the unof allowed ingress or egress of a vessel in spite of the Blockade. blockade. An attempted breach is, so far as a punish No Breach ment is concerned,3 treated in the same way as a consummated breach; but the practice of States has differed as to the time at which, and act by which, an attempt to break a blockade commences. § 384. Since breach of blockade is, from the standwithout point of the blockading belligerent, a criminal act, Notice of 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. 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 its existence. For the same reason some States, as France and Italy, have never considered a vessel to have committed a breach of blockade unless, before her attempted ingress, one of the blockading 1 See Article 37 of U.S. Naval War See the Report of the Drafting It has already been pointed out (above, § 296) that a blockade-runner does not violate International Law, but rules made by the belligerent, violations of which International Law permits him to punish. cruisers stopped her, gave her special warning, and recorded the warning in her log-book.1 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.2 Actual notice has been understood to mean 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 understood to arise when a vessel has been presumed to know of the blockade 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. Knowledge of the existence of a blockade has always been presumed if sufficient time had elapsed after the home State of the vessel had received diplomatic notification of the blockade, for it to inform all vessels sailing under its flag, whether or no they had actually received, or taken notice of, the information.3 The unratified Declaration of London followed, to a certain extent, British, American, and Japanese practice; it differed chiefly in that the presumption of knowledge of a blockade was never to be absolute, but might in every case be rebutted. Article 14 provided 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 was to be presumed, failing 1 See above, § 376. See Holland, Prize Law, §§ 107, 114-127; U.S. Naval War Code, Article 39; Japanese Prize Law, Article 26. VOL. II. 2 L 3 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. |