International Law Part 32

(_c_) =Blockade a War Measure.= The so-called pacific blockade differs in its purpose and method to such an extent as to cause many to deny it any standing in international law. Only a belligerent can inst.i.tute a blockade which other states are bound to respect, as, without war, there are no neutrals. The blockade may continue even until the conclusion of peace. The agreement to a truce or an armistice does not put an end to the blockade.

(_d_) =Declaration.= Blockade can be declared only by the proper authority.

As war is a state act, only the person or authority designated by the const.i.tution or law of the state can declare a blockade. Such a declaration must, in general, come from the chief of the state. In certain cases a blockade declared by an officer in command of forces remote from the central government is held to be valid from the time of its proclamation, if the act of the commander receives subsequent ratification from the central authority.

(_e_) =Notification.= Neutrals must be notified of the existence of a blockade. This notification may be:--

1. By official proclamation announcing the place to be blockaded, and the time when the proclamation becomes effective.

2. By notification to vessels when they come near the place blockaded.

3. The use of both the above methods.

The theory of the American and English authorities has been to a.s.sume a knowledge of the blockade on the part of subjects if the political authority of their state had been informed of the existence of the blockade before the neutral vessel left port. In practice both powers have in recent years given a neutral vessel warning of the existence of blockade of a port before seizure.[470]

The French rule is to give in every instance an approaching neutral vessel warning of the existence of a blockade, and to consider the notification to the neutral state authorities as merely a diplomatic courtesy.

Sometimes local notification is made to port and consular authorities of the place blockaded.

In recent years the time allowed a vessel to discharge, reload, and to leave port has been specified.

In case of special notification by the officer in command of a blockading s.h.i.+p, the fact with particulars should be entered in the log of the neutral vessel over the officer's signature.

(_f_) =A Blockade must be Effective.= This principle applies both to the place and to the manner of enforcement.

1. It must apply to a place which may be blockaded, _i.e._ to seaports, rivers, gulfs, bays, roadsteads, etc. A river which forms the boundary between one of the belligerent states and a neutral state may not be blockaded. Rivers flowing for a part of their course through belligerent territory but discharging through neutral territory may not be blockaded. Certain waters are not liable to blockade because exempt by agreement; as in the case of the Congo River by the Act of 1885.

2. "Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy."[471] This is interpreted in the United States Naval Code as a "force sufficient to render hazardous the ingress to or egress from a port."[472] The subject of the degree of effectiveness which is necessary has been much discussed, and can only be determined by the circ.u.mstances in a given case.[473] The English interpretation in the main agrees with that of the United States. The Continental states are inclined to give a more literal interpretation to the rule.

(_g_) =Cessation.= A blockade comes to an end:--

1. By the cessation of any attempt to render it effective.

2. By the repulse by force of the vessels attempting to maintain the blockade.

3. For a given neutral vessel when there is no evidence of a blockade, after due care to respect its existence. This may happen when the blockading force is absent in pursuit of an offending vessel, or for similar reason.

In this last case the Continental authorities hold that the neutral is free to enter without question, as it is the duty of the belligerent to render the blockade at all times evident and effective. The English and American authorities generally consider such a case merely an interruption, and hold that it does not require that the blockade be proclaimed again. There is a general agreement that in the other cases it must be formally inst.i.tuted again as it was in the beginning.

-- 137. Violation of Blockade

"A breach of blockade is not an offense against the laws of the country of the neutral owner or master. The only penalty for engaging in such trade is the liability to capture and condemnation by the belligerent."[474] The American and English practice is to regard as the breach of blockade the act of pa.s.sing into or out of a blockaded place, unless by special privilege, or a manifestation of an intent to thus pa.s.s. The French courts impose a penalty only upon those who actually attempt to run the blockade. The American practice would make the vessel liable to penalty from the time of its departure from neutral jurisdiction with intent to enter the blockaded port until its return, unless the blockade is raised meantime.

Under proper regulations, certain vessels are usually allowed to pa.s.s a blockade without penalty:--

1. Neutral vessels in actual distress.

2. Neutral vessels of war.

3. Neutral vessels in the port at the time of the establishment of the blockade, provided they depart within a reasonable time. In the War of 1898, the United States allowed thirty days after the establishment of the blockade to neutral vessels to load and to depart.

The penalty for the violation of blockade is forfeiture of vessel and cargo, although when vessel and cargo belong to different owners, and the owner of the cargo is an innocent s.h.i.+pper, it has been held that the cargo may be released. This may happen if a vessel deviates from her original destination to a blockaded port. Even though a vessel pa.s.s a blockade, she is liable to capture while at sea before the termination of the voyage, provided the blockade continues.[475] The crews of neutral vessels violating a blockade are not prisoners of war, but may be held as witnesses before a prize court.

-- 138. Continuous Voyages

The Rule of War of 1756 declared that during war neutrals were not permitted to engage with the colonies of a belligerent in a trade which was not permitted to foreigners in time of peace.[476] Ordinarily in the time of peace, trade between the mother country and the colony was restricted to domestic s.h.i.+ps. This rule was adopted in order that a neutral might not, by undertaking trade denied him in time of peace, relieve one of the belligerents of a part of the burdens of war which the interruption of domestic commerce by the other belligerent had imposed. Trade with neutral ports was allowed in time of peace.

Therefore, to avoid technical violation of the rule, neutral vessels sailing from a port within belligerent jurisdiction, touched at a port within neutral jurisdiction, and in some cases landed and res.h.i.+pped their cargoes. Lord Stowell decided that it was a settled principle "that the mere touching at any port without importing the cargo into the common stock of the country will not alter the nature of the voyage, which continues the same in all respects, and must be considered as a voyage to the country to which the vessel is actually going for the purpose of delivering her cargo at the ultimate port."[477] In the case of the _William_ in 1806, Sir William Grant declared that "the truth may not always be discernible, but when it is discovered, it is according to the truth and not according to the fiction that we are to give to the transaction its character and denomination. If the voyage from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have ended. That those acts have been attended with trouble and expense cannot alter their quality or their effect."[478] The English authorities held that the visit to a neutral port did not const.i.tute the trip two voyages, but that the voyage was continuous and the property liable to confiscation, though Hall says the "cargo was confiscated only when captured on its voyage from the port of colorable importation to the enemy country."[479] British cruisers, however, seized three German vessels, the _Herzog_, the _Bundesrath_, and the _General_, during the South African War of 1899-1900, while on a voyage to the Portuguese port of Lorenco Marques, which was the natural port of entry for Pretoria, the capital of the South African Republic. Germany protested. The vessels were released and the English authorities promised that in the future they would refrain from searching vessels until the vessels had pa.s.sed beyond Aden, or any other place at the same distance from Delagoa Bay.

The American doctrine of continuous voyages is a considerable extension of the English doctrine and has met with severe criticism. In the case of the _Bermuda_, captured during the Civil War of 1861-1864, it was held that:--

"Destination alone justifies seizure and condemnation of s.h.i.+p 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 last case the s.h.i.+p, and cargo, not contraband, are free from seizure, except in cases of fraud or bad faith."[480]

In the case of the _Stephen Hart_, a British schooner, bound from London to Cuba with a cargo of war supplies, captured in 1862 off the coast of Florida, Judge Betts condemned both vessel and cargo. He maintained that:--

"The commerce is in the destination and intended use of the property laden on board of the vessel, and not in the incidental, ancillary, and temporary voyage of the vessel, which may be but one of many carriers through which the property is to reach its true and original destination.... If the guilty intention, that the contraband goods should reach a port of the enemy, existed when such goods left their English port, that guilty intention cannot be obliterated by the innocent intention of stopping at a neutral port on the way.... This court holds that, in all such cases, the transportation or voyage of the contraband goods is to be considered as a unit, from the port of lading to the port of delivery in the enemy's country; that if any part of such voyage or transportation be unlawful, it is unlawful throughout; and that the vessel and her cargo are subject to capture; as well before arriving at the first neutral port at which she touches after her departure from England, as on the voyage or transportation by sea from such neutral port to the port of the enemy."[481]

This position of the United States, which has been so criticised, is liable to be abused to the disadvantage of neutral commerce. The absence of some such rule would open the door to acts which, though neutral in form, would be hostile in fact. The present tendency seems to be to allow the exercise of a certain amount of supervision over commerce of neutrals when it is destined to neutral ports having convenient communication with the enemy. This may extend to the seizure of neutral vessels bound for that port only in form, provided there is no doubt as to the true destination, but such seizure must be made with the greatest care not to violate the proper rights of neutrals. There is less reason for the general exercise of this supervision over vessels sailing to a neutral port which is separated from the belligerent territory by a considerable expanse of water, than for its exercise over vessels sailing to a port which is separated only by a narrow expanse of water.

In cases where the neutral port is upon the same land area with the belligerent territory and has easy communication by rail or otherwise, so that it may become a natural port of entry for goods bound for one of the belligerents, the other belligerent may properly exercise a greater degree of authority in the supervision of commerce than would ordinarily be allowable. It was on this ground that England could justify her action in the seizure of vessels bound for Delagoa Bay during the war in South Africa, in 1899-1900; and similarly Italy justified her seizure of the Dutch vessel, _Doelwyk_, in August, 1896, during the Abyssinian war.

This vessel was bound for a friendly port, but a port from which its cargo of war supplies would pa.s.s overland to the enemy without difficulty.

-- 139. Prize and Prize Courts

_Prize_ is the general term applied to captures made at sea. The s.h.i.+ps and goods of an enemy liable to capture by the laws of war, and the s.h.i.+ps and goods of a neutral when involved in acts forbidden by the laws of war, may be brought into port for adjudication and disposition.

Enemy's goods, except contraband of war, are not liable to capture on neutral s.h.i.+ps.[482] Certain s.h.i.+ps engaged in charitable or scientific pursuits, and coast fis.h.i.+ng vessels, are exempt from capture,[483] as are also certain specially exempted by treaty. In general other goods and vessels of the enemy are liable to capture. Contraband goods of a neutral, vessels attempting to violate blockade, vessels performing unneutral service, or goods or vessels otherwise involved in a way contrary to the laws of war are liable to capture.

A _prize court_ is the tribunal which determines the rights of the parties concerned in the capture and the disposition of the goods or vessel. All captures belong to the state in whose name they are made. An inchoate t.i.tle to the prize is acquired by possession, but complete t.i.tle is acquired only after condemnation by a properly const.i.tuted prize court.

A prize court may be established by the belligerent in its own state, in the territory where the belligerent has military jurisdiction or in the territory of an ally.[484] The establishment of a court in neutral jurisdiction is not permitted. When Genet, the minister of France, tried, in 1793, to set up consular prize courts in the United States, Was.h.i.+ngton protested and Genet was recalled. Takahas.h.i.+ says, "It is clear that if we admit the prevailing principle concerning the establishment of a prize court in a belligerent's own dominions or its ally's, or in occupied territory, we may infer that a court can be held on the deck of a man-of-war--a floating portion of a territorial sovereignty--lying in the above-mentioned waters, provided the processes of procedure are followed."[485] He maintains, however, that a court might not be established on the high seas, as proper procedure for the interested parties would not be possible.

The tribunals which have jurisdiction of prize cases differ in the different countries. In the United States, the District Courts possess the powers of a prize court, and an appeal lies to the Supreme Court.[486]

The methods of procedure of prize courts are similar in different countries. The practice in the United States is as follows:--

Dana calls the prize tribunal _an inquest by the state_, and regards it as the means by which the sovereign "desires and is required to inform himself, by recognized modes, of the lawfulness of the capture." The commanding officer of the capturing vessel, after securing the cargo and doc.u.ments of the captured vessel, makes an inventory of the last named, seals them and sends them, together with the master, one or more of the other officers, the supercargo, purser, or agent of the prize, and also any one on board supposed to have information, under charge of a prize master and a prize crew, into port to be placed in the custody of the court. The prize master delivers the doc.u.ments and the inventory to prize commissioners, who are appointed by the court, and reports to the district attorney, who files a libel against the prize property and sees "that the proper preparatory evidence is taken by the prize commissioners, and that the prize commissioners also take the depositions _de bene esse_ of the prize crew, and of other transient persons cognizant of any facts bearing on condemnation or distribution."[487] The libel should "properly contain only a description of the prize, with dates, etc., for identification, and the fact that it was taken as prize of war by the cruiser, and brought to the court for adjudication, that is, of facts enough to show that it is a maritime cause of prize jurisdiction and not a case of munic.i.p.al penalty or forfeiture."[488] Notice is then published that citizens or neutrals, but not enemies, interested in the prize property shall appear and enter their claims. As there are no allegations in the libel, the answer of the claimant is only a general denial under oath. The prize commissioners then examine the witnesses privately; and this evidence, which is kept in secret until complete, is called _in preparatorio_.[489]

If the court is in doubt it will order "further proof," that is besides the s.h.i.+p, cargo, doc.u.ments, and witnesses. The burden is on the claimant to prove t.i.tle.[490] If the claimant's right is not sufficiently established, the property is condemned. The captors are, however, liable to damages if there is found no probable cause for the capture.[491]

It has been the general practice to distribute the proceeds, or a part of the proceeds, of a capture among the captors. This distribution is a matter of munic.i.p.al law. In England the sum realized from the sale of the goods and vessel is distributed among the captors, though the crown reserves the right to decide what interest the captors shall have, if any.[492] By a royal decree of June 20, 1864, Prussia provided in detail what each of those partic.i.p.ating in the capture should receive.[493] By the act of March 3, 1899, the United States provided that "all provisions of law authorizing the distribution among captors of the whole, or any portion, of the proceeds of vessels, or any property hereafter captured, condemned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy hereafter occurring in time of war, are hereby repealed."[494]

"If there are controlling reasons why vessels that are properly captured may not be sent in for adjudication--such as unseaworthiness, the existence of infectious disease, or the lack of a prize crew--they may be appraised and sold, and if this cannot be done, they may be destroyed. The imminent danger of recapture would justify destruction, if there should be no doubt that the vessel was a proper prize. But in all such cases all of the papers and other testimony should be sent to the prize court, in order that a decree may be duly entered."[495]

APPENDICES