clearance called, will not save the vessel from condemnation as prize. she having been captured close by the blockaded port, standing in for it, and without ever having made an inquiry anywhere whether the port was blockaded or not.

The Admiral, 3 Wall. 603.

Where a neutral vessel, which had apparently set out on a lawful voyage, was captured, she was restored, the only evidence against her being that, when captured, she was out of the most direct and regular course, which was explained by the fact of there having been rough weather, which made it desirable for her to take the course she did.

The Sea Witch, 6 Wall. 242.

"6. 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 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."

Instructions to U. S. Blockading Vessels and Cruisers, General Orders, No. 420, June 20, 1898, For. Rel. 1898, 780.

3. ATTEMPT TO ENTER.

$1274.

A British prize sentence, condemning an American vessel, recited that, the vessel having been cleared for Cadiz, a port actually blockaded by the British, the master of the brig" persisted in his intention of entering that port, after warning from the blockading force not to do so." The condemnation occurred in August, 1800. By article 18 of the treaty between the United States and Great Britain of 1794 it was provided that if a vessel sailed for a blockaded port without knowledge of the blockade, she might be turned away, but should not be detained, nor the cargo, if not contraband, be confiscated. "unless after notice she shall again attempt to enter." It was held that "persisting in an intention" was not an "attempt to enter," and that the decree did not show a valid ground of condemnation. This being so, it was held that the parties might look to other evidence in the case. The facts were recited in a special verdict, by which it appeared that the vessel, instead of being first turned away, was,

though she had no previous knowledge of the blockade, simply detained, and that her master was drawn into certain conversations in which he used expressions which might be construed as evidence of an intention to sail for Cadiz, should he be liberated. These facts were held not to amount to an attempt again to enter that port. As to what might constitute such an attempt, the court observed: "Lingering about the place, as if watching for an opportunity to sail into it, or the single circumstance of not making immediately for some other port, or possibly obstinate and determined declarations of a resolution to break the blockade, might be evidence of an attempt, after warning, to enter the blockaded port."

Fitzsimmons . Newport Ins. Co. (1808), 4 Cranch, 185, 200.

No neutral can, after knowledge of a blockade, lawfully enter or attempt to enter the blockaded port; and to do so would be a violation of neutral character, which, according to established usages, would subject the property engaged therein to the penalty of confiscation.

McCall. Marine Ins. Co., 8 Cranch, 59.

Preparations towards entering a blockaded port, such as hovering around it, with other acts from which an intention to enter may be inferred, are grounds for seizure, unless the blockade is exclusively for ingress or egress.

The Coosa, 1 Newb. Adm. 393; The Hiawatha, Blatchf. Pr. Ca. 1; The Empress, Blathehf. Pr. Ca. 175; Halleck, Int. Law (1861), ch. 23, § 23.

If a vessel is found without a proper license near a blockading squadron, under circumstances indicating intent to run the blockade, and in such a position that if not prevented she might pass the blockading force, she cannot thus, flagrante facto, set up as an excuse that she was seeking the squadron with a view of getting an authority to proceed on her desired voyage.

The Josephine, 3 Wall. 83.

A neutral professing to be engaged in trade with a neutral port situated so near to a blockaded port as to warrant close observation by the blockading squadron must keep his vessel, while discharging or receiving cargo, so clearly on the neutral side of the blockading line as to repel, so far as position can repel, all imputation of intent to break the blockade; and neglect of that duty may well justify capture and sending in for adjudication, though it might not justify a condemnation in the absence of evidence that the neglect was willful.

The Dashing Wave, 5 Wall. 170.

A neutral vessel, completely laden with a neutral cargo and at anchor on the neutral side of a river which washed a blockaded coast, drifted into hostile waters and was captured while temporarily at anchor there on suspicion of intent to break the blockade. It was held that temporary anchorage in waters occupied by the blockading vessels did not justify capture in the absence of other grounds.

The Teresita, 5 Wall, 180.

To justify a neutral vessel in attempting to enter a blockaded port she must be in such distress as to render her entry a matter of uncontrollable necessity.

The Diana, 7 Wall. 354.

During the blockade of Port Royal in 1861 a Spanish steam vessel, with the permission of the commander of the blockading squadron, put into that port in distress, and was there seized as prize of war, and used by the Government till June, 1862, when she was brought to New York and condemned. In June of the following year, however, the Government in the meantime using the vessel, a decree of restitution was ordered; but the vessel never was restored. Subsquently the case was referred to a commissioner to ascertain the damages for the seizure and detention, and final judgment was rendered by the court on his award. This judgment was reversed on account of the impropriety of one of the items included in the decree of the district court. But it was held that clearly the vessel was not lawful prize of war or subject to capture, and that her owners were entitled to fair indemnity, though it might well be doubted whether the case was not more properly a subject of diplomatic adjustment than of determination by

the courts.

The Nuestra Señora de Regla, 17 Wall. 29.

4. EVIDENCE.

$ 1275.

Evidence of intent to violate blockade may be collected from bills of lading, from letters and papers found on board the captured vessel, from acts and words of the owners or hirers of the vessel and the shippers of the cargo and their agents, and from the spoliation of papers in apprehension of capture.

The Circassian, 2 Wall. 135.

Intent to run a blockade may be inferred in part from delay of the vessel to sail after being completely laden, and from changing the ship's course in order to escape a ship of war cruising for blockade runners. A vessel and cargo, though owned by neutrals, may be con

demned as enemy property because of the vessel being engaged in enemy trade and because of an attempt to violate a blockade and to elude visitation and search.

The Baigorry, 2 Wall. 474.

Presumption of an intent to run a blockade by a vessel bound apparently to a lawful port may be inferred from a combination of circumstances.

The Cornelius, 3 Wall. 214.

A vessel sailing through blockaded waters was seized on suspicion of intent to break the blockade. Besides the fact that her manifest bore date as of a day when only a part of the cargo was laden, her bills of health and clearance pointed to one port as her port of destination, while the captain's letter of instructions required him to stop at another, not in a direct line, for instructions. The vessel's bills of health specified six men and no passengers, there being, in fact, one passenger; and the provisional certificate of registry represented as sole owner one person, and other papers another. It was held that these circumstances justified the seizure.

It further appeared that the vessel's name had been changed, and that her master had ten months before commanded a blockade runner. Not only was her ownership in doubt, the ostensible ownership being apparently but a mere cover, but no claim was put in for her, except by the captain, who put in a claim for the ostensible owners, though without instructions from them and only in his capacity of master. The evidence, too, was very strong that a portion of the cargo was enemy's property. Under these circumstances condemnation was decreed.

The Jenny, 5 Wall. 183.

The British steamship Newfoundland was seized off the coast of Cuba July 19, 1898, by a United States cruiser on a charge of attempt. to violate the blockade of Havana. After the preparatory testimony was taken, an order was made for further proof, and on the subsequent hearing the vessel and cargo were condemned. This sentence the Supreme Court reversed. The case was one chiefly of fact. It was alleged that the vessel was loitering with intent to seize an opportunity to run into Havana; that her usual lights were not displayed, and that she was out of her proper course. These allegations were disputed, and the court was unwilling, upon the mere concurrence of a number of "suspicious circumstances," each one of which "standing alone" could be explained," to hold that guilt was established. The court below, in discussing the proof of loitering,

"

observed that it fell very far short" of the inculpatory evidence in the cases of certain sailing vessels, which the Government had cited as precedents for condemnation; but suggested that proof less full and precise might be accepted in the case of steam vessels, owing to their superior power of movement. "Undoubtedly there is a difference," said the Supreme Court, "but if steam has increased the power of blockade runners, it has increased in greater degree, when conjoined with the range of modern ordnance, the power of blockade defenders. We recently had occasion to consider their power, and decide that a single modern cruiser might make a blockade effective." It was ordered that the vessel and cargo be restored, but without costs or damages.

The Newfoundland (1900), 176 U. S. 97; citing the Olinde Rodriguez,

supra.

The case of the Newfoundland in the court below is reported in 89 Fed.
Rep. 99, 510.

5. DESTINATION.

$1276.

See, as to "Continuous voyages," supra, § 1180.

Destination alone justifies seizure and condemnation of ship and cargo in voyage to ports under blockade; and such destination justifies equally seizure of contraband in voyage to ports not under blockade; but in the latter case the ship, and cargo, not contraband. are free from seizure, except in cases of fraud or bad faith.

The Bermuda, 3 Wall. 514.

For a criticism of this case, see 3 Phillimore Int. Law (3d ed.), 460.

A vessel destined for a neutral port with no ulterior destination for herself, and none by sea for her cargo, to a blockaded place, violates no blockade.

The Peterhoff, 5 Wall. 28.

As to the case, see 3 Phillimore Int. Law (3d ed.), 395, 479.

A cargo shipped from a neutral country by neutrals resident there, and destined ostensibly to a neutral port, was restored with costs after capture in a suspicious region, and where the vessel on its outward voyage had violated a blockade; there having been nothing to fix on the neutrals themselves any connection with the ownership or outward voyage of the vessel (which was itself condemned). nor any thing to prove that their purposes were not lawful. But a certain portion of the cargo, which had been shipped like the rest, except that the shipper was a merchant residing and doing business in the enemy's country, was condemned.

The Flying Scud, 6 Wall. 263.