longs, and consequently the danger of the seizure of delictum § 114. If a neutral vessel has violated a blockade Duration by egress, she is regarded as still in delicto until she afte has reached her port of destination, and completed egress. 69 The Drie Vrienden, 1 Dod- Vrow Barbara, ibid. in notis, p. son, p. 269. 70 The Christina Margaretta, 6 Ch. Rob. p. 63. 71 The Juffrow Maria Schroe der, 3 Ch. Rob. p. 149. The 158 72 The Neptunus, 2 Ch. Rob. p. 110. 73 The Rose in Bloom, 1 Dobson, p. 58. her voyage. Thus we find it directed by the third article of the Ordinance of the States General of 26 June 1630, above referred to, that "vessels returning from the ports of Flanders, with the exception of such as have been driven into them by an extreme necessity, although they should be met with at a great distance from those ports by vessels of the State without having been previously pursued by any of the blockading fleet, shall be confiscated, because such vessels are held to have been taken in the fact as long as they have not completed their voyage, and have not arrived in some port which is free, or belonging to a neutral Prince. Such vessels indeed with their cargoes shall not be liable to be confiscated if they shall have arrived in any such port as specified, unless they have been pursued in coming out of the ports of Flanders by some vessel of war, and have taken refuge in such port, not being their own port, nor the port of their destination, and shall have ventured out to sea again, and been captured on the high seas." Bynkershoek, in commenting on this Ordinance of the States General observes, that the exception in favour of a vessel which has arrived at her own port, if it is intended to distinguish such a port from her port of destination, is not reasonable. "A British vessel," he says, "which has come out of a blockaded port of Flanders, destined to a Danish port, and having taken refuge from the pursuit of the blockading squadron in a British port, afterwards ventures out to sea and pursues her original destination to a Danish port, appears to be still in itinere et ipso actu." He is therefore disposed to construe the Dutch Ordinance, as granting the exemption to ves 74 The Weelvaart Van Pillaw, 75 Quæstiones Jur. Publ. L. I. 2 Ch. Rob. p. 128. The General C. II. Hamilton, 6 Ch. Rob. p. 61. sels which had arrived in their own port, as the terminus of their voyage; and he cites a decision of the Admiralty Court of Zealand (27 Jan. 1631) in regard to a vessel which had been purchased by a Scotchman in the port of Dunkirk, which was at such time under blockade, and which escaped out of Dunkirk, and took refuge from pursuit in the port of Yarmouth, which was not her actual port of destination. On venturing out of Yarmouth in prosecution of her original voyage, the vessel was captured on the High Seas by a Dutch cruiser, and condemned as good prize to the captors. So likewise Lord Stowell, in dealing with the case of a Prussian ship which had escaped out of the port of Amsterdam, then under blockade, and had been captured by a British cruiser off Dungeness, observed, that if the principle is sound that a neutral vessel is not at liberty to come out of a blockaded port with a cargo, he knew no other natural termination of the offence, but the end of the voyage. It would be ridiculous to say, If you can get past the blockading force, you are free this would be a most absurd application of the principle. If that is sound, it must be carried to the extent that I have mentioned, for I see no other point, at which it can be terminated. Being of opinion that the principle is sound, I shall hold that if a ship, that has broken a blockade, is taken in any part of that voyage, she is taken in delicto, and is subject to confiscation 76." Lord Stowell has further laid it down, that a vessel which has committed a breach of blockade by egress, shall not have her offence purged by being driven by stress of weather into a port, which is not her port of destination. Such an accident, he says, is not entitled to 66 76 The Weelvaart Van Pillaw, 2 Ch. Rob. p. 130. Effect of fraud in egress. be considered as any discontinuance of the voyage, or as a defeasance of the penalty which has been incurred". § 115. An exception to the rule, that the offence of violating a blockade by egress is purged upon the arrival of the vessel at her port of destination, was made by Lord Stowell in a case which was altogether novel, but of which the importance was considerable, when viewed in the extent of the consequences to which it might lead. A neutral vessel was blockaded in the port of Rotterdam, and could only come out under the indulgence of a British Order in Council, which made an exception in favour of vessels bound to a neutral port. She came out in cargo with an ostensible destination to the neutral port of Smyrna, but on her voyage she put into Alicant, in Spain, under pretext of requiring repairs; and then having sold her cargo, took on board a return cargo for Copenhagen. She was captured by a British cruiser on her return voyage, and the ship and cargo were condemned, as prize, to the captor. Lord Stowell, in considering this case, observed, that "she was in fact blockaded in the port of Rotterdam, and could not come out with a cargo, unless going to a neutral port. The permission to go to a neutral port, if accepted, implies a contract that that destination shall be bona fide pursued. The vessel avails herself of the indulgence, and comes out with a professed intention of acting conformably to the Order. But the fact turns out, that she deposits her cargo in a port, to which she would not have been permitted to if the real intention of the voyage had been disgo, closed. This is unquestionably an act of perfidy; and I ask by what means can the Order be maintained, 77 The General Hamilton, 6 Ch. Rob. p. 62. or such conduct be repressed, unless by the application of the penalty to the subsequent voyage. Until the vessel had actually entered an interdicted port, nothing appeared whether she was in delicto or not. Cruisers see nothing; she goes in, and then the offence is consummated, and the intention is for the first time declared. It is not till the vessel comes out again, that any opportunity is afforded of vindicating the law, and of enforcing the restriction of this Order"." This case may be regarded as analogous in some respects to a breach of blockade by ingress, in which there is no opportunity of enforcing a penalty until the offending vessel ventures out again to sea. There is however one case in which the offence of entering a blockaded port may be purged before the vessel comes out, and in which likewise the penalty of violating a blockade by egress may be determined, before the offending vessel has reached her port of destination. This case arises, whenever the blockade itself is raised. Lord Stowell observed, in the case of the Lisette, that he knew of no case in which a vessel had been condemned, which had been seized for the breach of a bygone blockade. The same reason for rigour in such a case no longer exists, because the blockade being gone, the necessity of applying the penalty to prevent future transgression cannot continue. When the blockade is raised, a veil is thrown over everything that has been done, and the vessel is no longer taken in delicto79. § 116. It is a general rule that both ship and cargo Cargo not always are confiscable for the breach of a blockade, and the condemned presumption of law is that the violation of a blockade with the is intended for the benefit of the cargo as well as of the ship, and takes place with the sanction of the 78 The Christianberg, 6 Ch. Rob. p. 381. 79 The Lisette, 6 Ch. Rob. P. 392. ship. |