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the produce of those islands, to French or foreign ports in Europe. Of course, it was so carried, either really or ostensibly, on neutral account; the object being to avoid capture on the passage.
But the prize courts of Great Britain, regarding this new trade as unwarranted by the rights of neutrality, condemned such vessels as were captured while engaged in it, together with their cargoes; however clearly the property of both might appear to be in those neutral merchants, on whose behalf they were claimed.
As these vessels were admitted to a trade, in which prior to the war, French bottoms only could be employed, they were considered as made French by adoption: but the substantial principle of the rule of judgment was this — "that a neutral has no right to deliver a belligerent from the pressure of his enemy's hostilities, by trading with his colonies in time of war, in a way that was prohibited in time of peace.” —(James Stephen, War in Disguise, Fourth ed., pp. 12, 13.)
NOTE. As long as states of importance exclude foreign vessels from portions of their sea-borne commerce, their coasting trade for instance, and reserve it for their own ships, the question raised by Great Britain in 1756, and again in 1793, will crop up if the trade is thrown open to neutrals during a war or in immediate contemplation of one. At the Naval Conference of London in 1908-1909 Germany brought the matter forward. “It was proposed to treat as an enemy merchant vessel a neutral vessel, making at the time, and with the sanction of the enemy government, a voyage which she has only been permitted to make subsequently to the outbreak of hostilities or during the two preceding months” (Report of the Drafting Committee of the Conference). But strong opposition to this proposal was raised at once, notably by the American delegation. It was therefore dropped, and the question remains unsettled.
9. Judgment of the Supreme Court of the United States in the
Case of the Olinde Rodrigues
WHAT CONSTITUTES AN EFFECTIVE BLOCKADE Mr. Chief Justice Fuller delivered the opinion of the court.
We are unable to concur with the learned district judge in the conclusion that the blockade of the port of San Juan at the time this steamship was captured was not an effective blockade.
To be binding, the blockade must be known, and the blockading force must be present; but is there any rule of law determining that the presence of a particular force is essential in order to render a blockade effective? We do not think so, but on the contrary, that the test is whether the blockade is practically effective, and that that is a question, though a mixed one, more of fact than of law.
The fourth maxim of the Declaration of Paris (April 16, 1856) was: “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.” Manifestly this broad definition was not intended to be literally applied. The object was to correct the abuse, in the early part of the century, of paper blockades, where extensive coasts were put under blockade by proclamation, without the presence of any force, or an inadequate force; and the question of what might be sufficient force was necessarily left to be determined according to the particular circumstances.
This was put by Lord Russell in his note to Mr. Mason of February 10, 1861, thus: “The Declaration of Paris was in truth directed against what were once termed 'paper blockades,' that is, blockades not sustained by any actual force, or sustained by a notoriously inadequate naval force, such as an occasional appearance of a man-of-war in the offing or the like. ... The interpretation, therefore, placed by her Majesty's Government on the declaration was, that a blockade, in order to be respected by neutrals, must be practically effective. ... It is proper to add, that the same view of the meaning and effect of the articles of the Declaration of Paris, on the subject of blockades, which is above explained, was taken by the representative of the United States at the Court of St. James (Mr. Dallas) during the communications which passed between the two governments some years before the present war, with a view to the accession of the United States to that declaration." Hall's Int. Law, $ 260, p. 730, note.
The quotations from the Parliamentary debates, of May, 1861, given by Mr. Dana in note 233 to the eighth edition of Wheaton on International Law, afford interesting illustrations of what was considered the measure of effectiveness; and an extract is also there given from a note of the Department of Foreign Affairs of France of September, 1861, in which that is defined: "Forces sufficient to prevent the ports being approached without exposure to a certain danger.”
In The Mercurius, 1 C. Rob. 80, 84, Sir William Scott stated: "It is said, this passage to the Zuyder Zee was not in a state of blockade; but the ship was seized immediately on entering it; and I know not what else is necessary to constitute blockade. The Powers who formed the armed neutrality in the last war, understood blockade in this sense; and Russia, who was the principal party in that confederacy, described a place to be in a state of blockade, when it is dangerous to attempt to enter into it."
And in The Frederick Molke, 1 C. Rob. 86, the same great jurist said: "For that a legal blockade did exist, results necessarily from these facts, as nothing farther is necessary to constitute blockade, than that there should be a force stationed to prevent communication, and a due notice, or prohibition given to the party."
Such is the settled doctrine of the English and American courts and publicists, and it is embodied in the second of the instructions issued by the Secretary of the Navy, June 20, 1898, General Order No. 492: "A blockade to be effective and binding must be maintained by a force sufficient to render ingress to or egress from the port dangerous."
Clearly, however, it is not practicable to define what degree of danger shall constitute a test of the efficiency and validity of a blockade. It is enough if the danger is real and apparent.
In The Franciska, 2 Spinks, 128, Dr. Lushington, in passing on the question whether the blockade imposed on the port of Riga was an effective blockade, said: “What, then, is an efficient blockade, and how has it been defined, if, indeed, the term definition' can be applied to such a subject? One definition mentioned is, that egress or entrance shall be attended with evident danger; another, that of Chancellor Kent (1 Kent's Com. 146), is, that it shall be apparently dangerous. All these definitions are and must be, from the nature of blockades, loose and uncertain; the maintenance of a blockade must always be a question of degree, - of the degree of danger attending ships going into or leaving a blockaded port. Nothing is further from my intention, nor, indeed, more opposed to my notions of the law of nations, than any relaxation of the rule that a blockade must be efficiently 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."
"It is impossible," says Mr. Hall (260), "to fix with any accuracy the amount of danger in entry which is necessary to preserve the validity of a blockade. It is for the prize courts of the belligerent to decide whether in a given instance a vessel captured for its breach had reason to suppose it to be nonexistent; or for the neutral government to examine, on the particular facts, whether it is proper to withhold or to withdraw recognition."
In The Hoffnung, 6 C. Rob. 112, 117, Sir William Scott said: “When a squadron is driven off by accidents of weather, which must have entered into the contemplation of the belligerent imposing the blockade, there is no reason to suppose that such a circumstance would create a change of system, since it could not be expected that any blockade would continue many months, without being liable to such temporary interruptions. But when a squadron is driven off by a superior force, a new course of events arises, which may tend to a very different disposition of the blockading force, and which introduces therefore a very different train of presumptions, in favour of the ordinary freedom of commercial speculations. In such case the neutral merchant is not bound to foresee or to conjecture that the blockade will be resumed." Undoubtedly a blockade may be so inadequate, or the negligence of the belligerent in maintaining it may be of such a character, as to excuse neutral vessels from the penalties for its violation. Thus in the case of an alleged breach of the blockade of the island of Martinique, which had been carried on by a number of vessels on the different stations, so communicating with each other as to be able to intercept all vessels attempting to enter the ports of the island, it was held that their withdrawal was a neglect which “necessarily led neutral vessels to believe these ports might be entered without incurring any risk.” The Nancy, 1 Acton, 57, 59. .
But it cannot be that a vessel actually captured in attempting to enter a blockaded port, after warning entered on her log by a cruiser off that port only a few days before, could dispute the efficiency of the force to which she was subjected.
As we hold that an effective blockade is a blockade so effective as to make it dangerous in fact for vessels to attempt to enter the blockaded port, it follows that the question of effectiveness is not controlled by the number of the blockading force. In other words, the position cannot be maintained that one modern cruiser though sufficient in fact is not sufficient as matter of law.
Even as long ago as 1809, in The Nancy, 1 Acton, 63, where the station of the vessel was sometimes off the port of Trinity and, at others, off another port more than seven miles distant, it was ruled that: “Under particular circumstances a single vessel may be adequate to maintain the blockade of one port and co-operate with other vessels at the same time in the blockade of another neighbouring port”; although there Sir William Grant relied on the opinion of the commander on that station that the force was completely adequate to the service required to be performed.
The ruling of Dr. Lushington in The Franciska, above cited, was to that effect, and the text-books refer to other instances.
The learned district judge, in his opinion, refers to the treaty between France and Denmark of 1742, which provided that the entrance to a blockaded port should be closed by at least two vessels or a battery on shore; to the treaty of 1760 between Holland and the Two Sicilies prescribing that at least six ships