SITUATION VI.

Three neutral merchant vessels are successively overtaken on the high seas by a war vessel of the United States when there is a war between the United States and State X.

(a) The first is found to have been guilty of a breach of blockade established by the United States at a port of State X and maintained with reasonably efficiency.

(b) A second neutral merchant vessel is found to have been carrying contraband to an unblockaded port of State X and is on the return voyage to its home port with the goods received in exchange for the contraband.

(c) The third neutral merchant vessel is a collier returning to its home port after accompanying the fleet of State X with a cargo of coal.

What, if any, action should the commander of the United States war vessel take in each case?

SOLUTION.

(a) The commander of the United States war vessel, unless certain that the neutral vessel breaking the blockade is exempt from seizure, should send the neutral vessel to the nearest prize court.

(b) The neutral merchant vessel on her return voyage is not liable to seizure because of carriage of contraband on the outward voyage and should not be detained for such cause.

(c) If a war vessel of the United States overtakes a neutral vessel which has accompanied the enemy fleet as a collier before the neutral vessel has completed her voyage by return to the port of departure or to a home port, the commander of the United States war vessel should not hesitate to seize the collier and send it with its crew to a prize court, or, if necessary, to treat it immediately as an enemy vessel might be treated under similar conditions.

NOTES ON SITUATION VI.

Reasons for Situation VI.-(a) Some recent discus-sions and opinions have raised questions as to what might be considered an effective blockade.

(b) The action of the prize court at Vladivostok in the case of the Allanton has raised questions as to the liability of vessels on the return voyage for carrying contraband on the outward voyage.

(c) The present necessity for collier service has given rise to the question of the liability of a neutral vessel engaged in this service in time of war.

Provision of the Declaration of Paris, 1856.-By the Declaration of Paris, 1856, to which the United States did not accede, but to the principles of which it has in practice adhered

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.

It is evident that even those states which acceded to this Declaration of Paris cannot interpret literally the last clause," sufficient really to prevent access to the coast of the enemy." Probably no blockade could be maintained in this manner for any considerable length of time. During the night a fast vessel might pass in, or in a fog a vessel well acquainted with the locality might pass through, and in these days of submarines it may not be possible to guard against the passing of such a vessel. That it is not expected that the access to the coast will really be prevented is seen in the provisions for penalties for the breach of blockade. No penalties would be necessary under a literal interpretation of the declaration, for the access of vessels would be prevented, and if a vessel obtained access the blockade would not be effective, and hence the vessel would not be liable to penalty. This clause has been given a sane interpretation as meaning that the access of a vessel to the coast or her egress to the sea would be with evident danger. Such a blockade would be regarded as reasonably effective, and it is such a blockade that Situation VI considers.

POSITION OF UNITED STATES.

111

To break such a blockade a neutral merchant vessel must resort to unusual means or efforts. If a vessel does this it would ordinarily imply the taking of an unusual risk for the hope of an unusual reward which would accrue in consequence of some special advantage gained by the blockaded belligerent. Penalty, therefore, would justly be inflicted by the other belligerent if possible in order to prevent aid to the blockaded belligerent.

A neutral merchant vessel may, however, approach a port that has been blockaded and find that there are no belligerent vessels before the port. It may pass in.

Admitting that these belligerent vessels have been scattered by a storm and that the neutral vessel passes out of the port just as the blockading vessels return to their stations, would it be held that the neutral vessel had violated an effective blockade? The general consensus is that the temporary scattering of vessels before a blockaded port by a storm does not break the blockade. The interpretation of the word " temporary " is still open to question. What should be considered a "temporary suspension?" Blumerincq proposes twenty-four hours' absence as the limit of "temporary suspension." Others attempt to fix a limit of distance, the character of the storm, etc., as factors in determining suspension. It is difficult to reconcile the doctrine of "temporary suspension " with the principles of the Declaration of Paris.

Position of the United States.-The United States recognizes the necessity of observing the rules of International law in maintaining a blockade, and in General Order No. 492 of the Navy Department, June 20, 1898, gives quite full statement for the guidance of blockading vessels and cruisers:

INSTRUCTIONS TO BLOCKADING VESSELS AND CRUISERS.

1. Vessels of the United States, while engaged in blockading and cruising service, will be governed by the rules of international law, as laid down in the decisions of the courts and in the treaties and manuals furnished by the Naval Department to ships' libraries, and by the provisions of the treaties between the United States and other powers.

The following specific instructions are established for the guidance of officers of the United States:

BLOCKADE.

2. A blockade to be effective and binding must be maintained by a force sufficient to render ingress to or egress from the port dangerous. If the blockading vessels be driven away by stress of the weather, but return without delay to their stations, the continuity of the blockade is not thereby broken; but if they leave their stations voluntarily, except for purposes of the blockade, such as chasing a blockade runner, or are driven away by the enemy's force, the blockade is abandoned or broken. As the suspension of a blockade is a serious matter, involving a new notification, commanding officers will exercise especial care not to give grounds for complaints on this score.

NOTIFICATIONS TO NEUTRALS.

3. Neutral vessels are entitled to notification of a blockade before they can be made prize for its attempted violation. The character of this notification is not material. It may be actual, as by a vessel of the blockading force, or constructive, as by a proclamation of the government maintaining the blockade, or by common notoriety. If a neutral vessel can be shown to have had notice of the blockade in any way, she is good prize and should be sent in for adjudication; but, should formal notice not have been given, the rule of constructive knowledge arising from notoriety should be construed in a manner liberal to the neutral.

4. Vessels appearing before a blockaded port, having sailed without notification, are entitled to actual notice by a blockading vessel. They should be boarded by an officer, who should enter in the ship's log the fact of such notice, such entry to include the name of the blockading vessel giving notice, the extent of the blockade, the date and place, verified by his official signature. The vessel is then to be set free; and should she again attempt to enter the same or any other blockaded port as to which she has had notice she is good prize.

5. Should it appear from a vessel's clearance that she sailed after notice of blockade had been communicated to the country of her port of departure, or after the fact of blockade had, by a fair assumption, become commonly known at that port, she should be sent in as a prize. There are, however, treaty exceptions to this rule, and these exceptions should be strictly observed.

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

POSITION OF UNITED STATES.

113

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.

7. In accordance with the rule adopted by the United States in the existing war with Spain, neutral vessels found in port at the time of the establishment of a blockade will, unless otherwise ordered by the United States, be allowed thirty days from the establishment of the blockade to load their cargoes and depart from such port.

8. A vessel under any circumstances resisting visit, destroying her papers, presenting fraudulent papers, or attempting to escape, should be sent in for adjudication. The liability of a blockade runner to capture and condemnation begins and terminates with her voyage. If there is good evidence that she sailed with intent to evade the blockade, she is good prize from the moment she appears on the high seas. Similarly, if she has succeeded in escaping from a blockaded port she is liable to capture at any time before she reaches her home port. But with the termination of the voyage the offense ends.

9. The crews of blockade runners are not enemies and should be treated not as prisoners of war, but with every consideration. Any of the officers or crew, however, whose testimony before the prize court may be desired, should be detained as witnesses.

10. The men-of-war of neutral powers should, as a matter of courtesy, be allowed free passage to and from a blockaded port.

11. Blockade running is a distinct offense, and subjects the vessel attempting, or sailing with the intent, to commit it, to seizure, without regard to the nature of her cargo. The presence of contraband of war in the cargo becomes a distinct cause of seizure of the vessel, where she is bound to a port of the enemy not blockaded, and to which, contraband of war excepted, she is free to trade.

From these instructions it may be seen that dispersion from stress of weather is not held to interrupt the continuity of the blockade, though no definite time of absence or other limiting specification is indicated. Voluntary departure, except for chase of a blockade runner, is held to break the blockade, as is flight before an

enemy.

There are numerous conditions under which a neutral vessel may pass through or approach a blockade without guilt. These are mentioned in the clauses under "Notifications to neutrals."

25114-08-8