« ПретходнаНастави »
fule, changes his course for another port, on information before capture.
A neutral violating a blockade, is considered in delicto until the voyage is terminated. Until that period, the vessel may be captured and proceeded against in like manner as if taken while in the act of violation. This is a well-established principle laid down by the elementary writers, and has been frequently recognized and applied by admiralty tribunals; but if it so happen that the blockade be in fact raised after its violation, and before capture, the offence is held to be wiped away. To use the language
of Lord Stowell: “When the blockade is raised, a veil is thrown over every thing that has been done, and the vessel is no longer taken in delicto.?
The violation of a blockade subjects the proper. Penalty for ty employed to confiscation. This is the well-estab- blockade. blished rule in the law of nations. A breach of the blockade by the master subjects the ship to confiscation, but not the cargo, unless the owner of the ship be also the owner of the cargo; or, unless the owner of the cargo, from cognizance of the intended violation, be considered in pari delictu with the ship-owner, or master, or supercargo.
The penalty of a violation of a blockade, may attach on the property of persons ignorant of the fact, by the conduct of the master, or of the consignee, if intrusted with power over the vessel."
The Imena, 3 Rob., 169. · The Lisette, 6 Rob., 395; Bynkershoek, Qu. jur. pub., Lib., I., c. xi., p. 214; The Christiansberg, 6 Rob., 376. * The Columbia, 1 Rob., 154.
The Hercurius, 1 Rob., 80; The Eenrom, 2 Rob., 8. • The Columbia, 1 Rob., 154.
[The doctrine laid down in the case of The Chris tiansberg, before cited, is not fully expressed in the preceding text.
It might, perhaps, be inferred, from the proposition—that a neutral, having violated a blockade, is considered in delicto until the voyage is terminated --that the vessel could not be captured and proceeded against by reason of the offence, at any subsequent period. This, however, is not so, unless a veil is thrown over the past offence by the raising of the blockade, before the succeeding voyage of the vessel
The voyage next succeeding that upon which the offence has been committed, may be the first opportunity afforded for the vindication of the law, and the case of The Christian-sberg, therefore, decides, that the liability to capture is not limited to the termination of the voyage of the offence, but con: tinues through that which next succeeds it. Two cases, confirmatory of this doctrine, are cited
, by the reporter in a note to the case of The Chris. tiansberg: the case of Parkman vs. Allen, 1 Stairs Decisions, 529; and the case of the Randers Bye, decided at the February term of the year of the
In the latter case, the authority of the case of The Christiansberg was invoked, in favor of a decree of condemnation-condemnation was refused-but the doctrine here stated was affirmed, by the refusal being placed solely upon the ground that between the voyage upon which the offence had been committed, and that upon which the vessel was captured, a a short but distinct voyage had taken place.
Upon principle, there would seem to be no just
reason for holding the delictum to be at an end, by the mere arrival of the vessel at her destined port, upon the voyage of the offence. .
The true ground upon which the offending vessel is, at any time during the existence of the blockade, absolved from liability, is, that the rights of third parties may have intervened, who should not be exposed to loss for the commission of an offence in which they did not participate, and of which they had no knowledge.
But when a vessel arrives at her destination, fresh from a blockaded port—having successfully run the gauntlet of the naval force, stationed for the
protection of the belligerent right—the achievement is ordinarily so paraded as a triumphant and meritorious evasion of an obnoxious, if not tyrannous right, that the last employment of the vessel becomes matter of notoriety. No parties, therefore, who may see fit, then and there, to entrust their capital in the succeeding enterprise of the vessel, can be regarded in the light of innocent parties in that sense in which innocence consists of ignorance of the stain of guilt resting upon her, by reason of her recent and last employment.
The reason for the rule of limitation, in this view, would rarely, if ever, exist, until after the vessel had made a distinct voyage, subsequent to that of her offence.
There have been several occasions for the application of this doctrine, during the existing war in the United States, and it has been recognized and enforced by the learned judge of the United States Court, in the District of New York, although no case has occurred in which condemnation has been
decreed, solely upon the ground of violation of the blockade upon the voyage preceding that of the capture, because, in each case, other and distinct grounds of condemnation have also existed. The affirmation of the doctrine of the English cases, has, however, been so clear, as to leave no doubt that condemnation would have been decreed in a case where no other cause of capture was averred.
In March, 1862, the schooner Elizabeth, then at the port of Charleston, South Carolina, and owned by a citizen of that place, took on board a cargo of cotton, and successfully running the blockade of the port, arrived at the convenient neutral British port of Nassau, New Providence. At this port, her name was changed to The Mersey, and her nationality was ostensibly changed by a transfer to a British subject; and she was laden with a cargo consisting of articles of great scarcity at Charleston, but as common, and of not more value, than coals at Newcastle, in the port of Baltimore, to which port she was documented for a voyage. Upon this voyage she was captured, when two days sail from Nassau, by the United States cruiser Santiago de Cuba, and sent to New York for adjudication. It will be seen by this recital, that other grounds of capture were involved in the case; but the court, in assigning the causes upon which condemnation was de creed, indicates this as the second cause, in the words following:
“ She came out of Charleston, by evading the blockade of that port, and was seized on her first voyage subsequent thereto.” (The Christiansberg, 6 Rob., 376, 382, and notes. The General Hamilton, 6 Rob., 62.)
By the same learned judge, this was made a distinct ground and cause of condemnation in the case of the Major Barbour, captured in February, 1862, by the United States cruiser De Soto, on a voyage succeeding that upon which she successfully violated the blockade of the port of New Orleans.
Also, in the case of the Joseph H. Toone, captured October 1st., 1861, by the United States cruiser South Carolina, while (being documented for a voyage to Tampico), she was steering into Barataria Bay, a bayou connecting with the Mis. sissippi River below New Orleans; and, having on the preceding voyage, in August, successfully violated the blockade of the port of New Orleans, by taking a cargo out of that port, by way of Berwick Bay, a place of which New Orleans is the port of entry and clearance, and connected with that port by a short railroad.
The question whether a neutral, knowing of the establishment of a belligerent blockade, may law. fully sail to the mouth of the blockaded port, river, or estuary, with the bonâ fide intent to inquire there, as to the continued existence of the blockade, has been made the subject of frequent and earnest discussion in several cases of prize, recently adjudicated, in the District of New York. (Vide vol. of MS., Decisions. The Cheshire,—The Delta,The Empress.)
In the cases of The Cheshire and The Delta, the dishonesty of the approach to the blockaded port, was manifested, among other criminating circumstances, by the false destination of the vessels, as set forth in their papers.