Sivut kuvina

ered fraudulent, and the egress of the vessel a vio lation of the blockade.

A vessel coming out of a blockaded port, is, in all cases, liable to seizure, and the onus of proving innocent acts and intentions lies upon the claimant seeking restitution.

A ship transferred from one neutral to another, in a blockaded port, and retiring in ballast, is not guilty of a breach of the blockade. And if a neutral have sent in goods, previous to the blockade, which have proved unsalable, he may withdraw them for the owner without violating the blockade.

If a neutral purchase a ship of the enemy in a blockaded port, that alone is an illegal act; and she may be captured at any time on her voyage to the country of the purchaser, even though driven to an intermediate port by stress of weather, being considered in delicto to the termination of the voy.


What excuses There are cases in which a violation of a blocka violation of blockade. ade is excusable; but the burden of exoneration is

always upon the party claimant setting up the excuse; and it is an invariable rule that, however innocent may have been the intentions of the party, his conduct must be explained, not only in such way as to manifest such innocence, but he must bring it within the principles which have been established for the protection of belligerent rights,

1 The Vrow Judith, 1 Rob., 151; The Frederick Molke, 1 Rob., 87.

* The Welvaart Von Pillau, 2 Rob., 130. 3 The Potsdam, 4 Rob., 39; The Drie Vrienden, i Dod., 269. The General Hamilton, 6 Rob., 61.

and without which, no blockade can be maintained.

The invention of neutrals has been sufficiently fertile in providing excuses for a violation of blockade; such as want of provisions, stress of weather, to ascertain the land,4 intoxication of the master, the misinformation of foreign ministers; but such excuses are rarely allowed, and are always scrutinized by courts of admiralty with the greatest suspicion.

Positive information from a ship belonging to the blockading nation, that a particular port is not blockaded, though the information were erroneous, has been received as a valid excuse, by a vessel acting upon such information.”

If a place be blockaded by sea, it is not considered a violation of the rights of the belligerent, for a neutral to carry on commerce with it by in. land communications, though such trade is not permitted by the citizens of the blockading power.o

The question of blockade in relation to rivers flowing through conterminous states, is very learnedly and elaborately discussed by Lord Stowell in a case on the capture of vessels in the Groningen Watt, on a suggestion that they were bound from Hamburg to Amsterdam, then under blockade; the claim being given under the authority of the Prussian minister, averring that the place in question was within the territories of the king of Prussia.10

"The Arthur, 1 Edwards, 203; The Byfield, ib., 188. · The Fortuna, 5 Rob., 27; 3 The Hurtige Hane, 2 Rob., 124. + ThAdonis, 5 Rob., 256. 5 The Shepherdess, 5 Rob., 262. The Spes and Irene, 5 Rob., 79. * The Neptunus, 2 Rob., 110. & The Ocean, 3 Rob., 297. The Jonge Pieter, 4 Rob., 89. jo The Twee Gebroeders, 3 Rob., 336.

[ocr errors]

Inland countries are allowed to import and to export through the ports of the enemy, subject, however, to strict proof of property.

Excuses for the violation of blockade, are listened to with a disposition to relax the severity of the law in favor of less civilized nations (like the kingdom of Morocco), whom it is considered should not be held bound by all the rules of the law of nations, as practised in more enlightened govern. ments.

Neutral merchants are not allowed to cover enemy's property with other goods belonging to them in the same ship. “The regular penalty of such a proceeding,” says Lord Stowell, “is confiscation; for it is a rule of this court, which I shall ever hold till I am better instructed by the superior court, that if a neutral will weave a web of fraud of this sort, this court will not take the trouble of picking out the threads for him, in order to distin. guish the sound from the unsound. If he is detected in fraud, he will be involved in foto. A neutral surely cannot be permitted to say: 'I have endeav. ored to protect the whole, but this part is really my property; take the rest, and let me go with my own. If he will engage in fraudulent concerns with other persons, they must all stand or fall together." It is no violation of a blockade, where a neutral owner, without knowledge of the fact, sends his vessel to the blockaded port, if the master, bona

The Magnus, 1 Rob., 31; The Active (Lords, Mar. 10, 1798). ? The Hurtige Hane, 3 Rob., 324.

3 The Eenrom, 2 Rob., 9; vide also The Betsy and George, 2 Gallison, 377; The St. Nicholas, 1 Wheaton, 417; and The For tuna, 3 Wheat., 236.

fide, 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

violation of 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 in. tended 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."

1 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.

3 The Columbia, 1 Rob., 154.
· The Mircurius, 1 Rob., 80; The Eenrom, 2 Rob., 8.
The Columbia, 1 Rob., 154.

[The doctrine laid down in the case of The Chrie. 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 pro ceeded 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 oppor: tunity afforded for the vindication of the law, and the case of The Christiansberg, therefore, decides, that the liability to capture is not limited to the termination of the voyage of the offence, but continues 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 Christiansberg : 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 report.

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 com. mitted, and that upon which the vessel was captured, a short but distinct voyage had taken place.

Upon principle, there would seem to be no just

« EdellinenJatka »