Page images

It is to be noticed, however, that the ship and the cargo are so far distinct, that neutral goods may be put on board a belligerent ship without being liable to be made prize of war; and that if the ship be neutral, it is no breach of the warranty of her neutrality, that she takes on board and carries belligerent goods.?

The law of nations in respect to neutral property is controlled to a considerable extent by treaties, between different countries, and it would seem that the terms and provisions of the treaties must be strictly complied with.?.

Another division of this question of neutrality is that of blockade. The questions in respect to this subject have been treated somewhat at length in the first volume, and we do not consider it necessary to repeat them here; merely adding some additional rules which have been the subject of adjudication. It has been held that if notice of a blockade has been formally made to a foreign government, no individual of that nation will be allowed to aver ignorance of it as against the blockading power. But as between the parties to the contract of insur

[ocr errors]

1 Barker v. Blakes, 9 East, 283. In the case of The Nereide, 9 Cranch, 388, Marshall, C. J., said: “ The rule that the goods of an enemy found in the vessel of a friend are prize of war, and that the goods of a friend found in the vessel of an enemy are to be restored, is believed to be a part of the original law of nations, as generally, perhaps universally, acknowledged. . . . . In the practical application of this principle, so as to form the rule, the propositions that the neutral flag constitutes no protection to enemy property, and that the belligerent flag communicates no hostile character to neutral property, are necessarily admitted. The character of the property, taken distinctly and separately from all other considerations, depends in no degree upon the character of the vehicle in which it is found.”

This question has been materially affected by late treaties made with reference to the war of the allies, England, France, and Turkey, against Russia.

2 The treaty of 1778, between France and the United States, provided “that in case either of the parties should be engaged in war, the ships and vessels belonging to the people of the other ally must be furnished with sea-letters or passports, expressing the name, property, and bulk of the ship, as also the name and place of habitation of the master or commander of the said ship.” Under this clause it has been held that a passport to G. D., master or commander of the ship called The Mount Vernon, of the town of Philadelphia, of the burden of 424 27-95 tons, being at present in the port of Philadelphia,” etc., was not sufficient, because the place of habitation of the master was not set forth, the words “of the town of Philadelphia" being held to apply to the ship and not to the master. Baring v. Christie, 5 East, 398.; Baring v. Clagett, 3 B. & P. 201.

3 See Vol. 1, p. 276. 4 See Vol. 1, p. 277.

[ocr errors]

ance, it is always a question of fact, whether there was actual notice or knowledge.

If the blockading squadron is driven off by a storm or a change of wind, the presumption is that there is an intention to return, and there is therefore no discontinuance of the blockade. But this presumption does not exist when the squadron is driven off by a superior force; but notice must be given of the recommencement of the blockade, either by public declaration or by the notoriety of the fact. The blockade must be strictly observed on the part of the blockading force. If, therefore, they permit some vessels to pass the line of blockade and enter the port, other ships may presume the blockade to be raised, and attempt to enter without leave. And a relaxation of a blockade in favor of belligerents, to the exclusion of neutrals, is illegal. If permission to enter is obtained from the commander of the blockading force through fraud or falsehood, it is certainly of

1 In Harratt v. Wise, 9 B. & C. 712, Lord Tenterden, C. J., said : “ Although the blockading nation may, by the law of nations, be allowed to consider its notification of a blockade, as notice thereof to all the subjects of the nation to which the notification has been made, for it cannot be expected that the blockading nation should be able or required to prove actual knowledge in the master of every vessel of the other country, yet such a rule, allowing it to prevail to the supposed extent (though it appears probably to be open to some qualification and relaxation for the furtherance of justice and the benefit of commerce), cannot, in our opinion, be applied to the case of insurance. And, if the possibility, or even probability, of actual knowledge should be considered as legal proof of the fact of actual knowledge, as a presumptio juris et de jure, the presumption might, in some cases, be contrary to the fact, and such a rule might work injustice. We therefore think that such a rule cannot be established as a rule of insurance law; but that knowledge, like other matters, must become a question of fact for the decision and judgment of a jury.” See also, Naylor v. Taylor, 9 B. & C. 718; Medeiros v. Hill, 8 Bing. 231.

? The Neptunus, 1 Rob. Adm. 170, 171; The Frederick Molke, id. 86; The Columbia, id. 154, 156; The Juffrow Maria Schroeder, 3 Rob. Adm. 147 ; Radcliff v. United Ins. Co., 7 Johns. 38, 54.

3 The Triheten, 6 Rob. Adm. 65; The Hoffnung, 6 Rob. Adm. 112.

4 The Rolla, 6 Rob. Adm. 364, 372. In Oldden v. M'Chesney, 5 S. & R. 71, the court said: “ There is no necessity for perfect uniformity in maintaining a blockade, because there may be particular reasons for permitting particular vessels to go in, or out. But the blockade should be preserved in so steady a manner, as not to give neutrals just cause for supposing that it is raised. This they must suppose, if ships are capriciously permitted to enter, or depart. The neutral certainly goes upon ticklish ground, who ventures to depart, while any of the belligerent ships are in the neighborhood. All that can be said of the law is, that a neutral ship onght not to be condemned for breach of blockade, if other ships under the same circumstances have been permitted to depart.”

5 Northcote v. Douglas, 10 Moore, P. C. 37.


no validity ; but if permission is given, upon a bonâ fide statement of all the facts in the case, it would clearly seem that the vessel could not afterwards be arrested. And it has been held that if a vessel sails for a blockaded port and is informed on the way by a vessel of the blockading power, though it does not belong to the blockading fleet, that the port is open, the master

, may proceed on his course.

It has been said that in some instances, "licenses are to be favorably regarded, and that it imports the good faith and honor of the government which grants them, not to press the letter too rigorously.”

A distinction exists between the liability of the cargo and of the ship to condemnation for a breach of a blockade. Primâ facie

a the cargo is considered as liable to condemnation, if any breach has been made which subjects the ship to condemnation. But the cargo is not liable to condemnation if it is the property of a person other than the owner of the ship, and its owner was not cognizant of the intended violation. If, however, the owners of the cargo gave the master discretionary power, they are liable for his acts; 6 or if the cargo was loaded after notification of the blockade, the parties having full knowledge of the fact.? And so they are a fortiori, if they are also owners of the ship.8

1 Oldden v. M'Chesney, 5 S. & R. 71. Some doubt is expressed in this case whether such a right would exist if it were manifest “that the commander acted in violation of an order of his sovereign, which had been made known to the world.”

2 The Neptunus, 2 Rob. Adm. 110.

8 The Juno, 2 Rob. Adm. 116. In this case the vessel sailed for Amsterdam, not knowing that the port was blockaded. The master, when he found it out, petitioned for leave to export to the Vlie, Embden, or Rotterdam ; and permission was given him to go to the ports of the Vlie, Embden, Rotterdam, or elsewhere. It was held that he might go to Amsterdam through the Texel as well as through thé Vlie passage. And although the license said nothing about coming out again, yet it was held that this was a benefit incidental to the license, and inseparable from it. And under all the circumstances of the case, the master having taken a return cargo and sailed openly and bonâ fide, it was held that if he was wrong he acted under a misapprehension that the blockade as to him was entirely relaxed, and that his vessel therefore was not liable to condemnation.

4 The Neptunus, 3 Rob. Adm. 173.

6 The Mercurius, 1 Rob. Adm. 80; The Exchange, Edw. Adm. 39, 43; The Adelaide, 3 Rob. Adm. 281.

6 The Columbia, 1 Rob. Adm. 154.
7 The Adonis, 5 Rob. Adm. 256.
8 The Mentor, 1 Act. 60.


" 2

[ocr errors]

A blockade may be broken by egress as well as by ingress.? No notice of a blockade, after it has existed de facto for any length of time, is necessary to be made to vessels confined in the port, “ the continued fact being of itself sufficient notice." A vessel may leave a blockaded port in ballast, or with a cargo placed on board before the declaration of the blockade. But if placed on board afterwards, both vessel and cargo are condemned, provided the cargo belongs to the owner of the ship, or its owner was cognizant of the act of the captain. And this right to leave a port with a cargo laden on board before the declaration of the blockade is to be construed strictly, and does not exist unless the cargo was actually on board, or in lighters for the purpose of being conveyed to the ship, although it may have been purchased and warehoused previously to the notification.

If the cargo has been sent in previously to the blockade, it may be withdrawn by the owner. And the minister of a neu

? tral country may charter a vessel to send home distressed seamen of his country; but if a cargo is taken in the vessel both it and the vessel are liable to condemnation. So it is a breach of the blockade, if a vessel, after the blockade is notified, continues to embark cargo.' And if a master voluntarily enters a blockaded port and is there compelled to sell his cargo, this is no excuse

[ocr errors][ocr errors]


1 Tottie v. Heathcote, 10 Moore, P. C. 70.
2 The Vrouw Judith, 1 Rob. Adm. 150.

3 The Potsdam, 4 Rob. Adm. 89; The Juno, 2 Rob. Adm. 116, 119. But a ship cannot enter a port in ballast, even if the purpose be to bring away a cargo purchased previously to the blockade. The Comet, Edw. Adm. 32.

* Olivera v. Union Ins. Co., 3 Wheat. 183; The Vrouw Judith, 1 Rob. Adm. 150. 5 The Frederick Molke, 1 Rob. Adm. 86.

6 Oldden v. M'Chesney, 5 S. & R. 71. In The Rolla, 6 Rob. Adm. 364, 371, it was argued that the rule did not apply to a cargo consisting of hides and tallow, and other articles, of which, in warm climates, it would be necessary to defer the shipment till the last moment, and that a possession in warehouses should be taken as equivalent to the possession by shipment, but Sir William Scott said: "I do not feel that there is any just call upon me to distinguish in their favor, or to depart in this particular case from those rules which the court has felt itself under the necessity of laying down, to prevent the continual danger of being imposed on by particular evidence, if I was to permit the exemption to be carried further than to a delivery on board the ship, or in lighters." i The Juffrow Maria Shroeder, cited 4 Rob. Adm. 89. & The Rose in Bloom, 1 Dods. 57, 58. • The Calypso, 2 Rob. Adm. 298. VOL. II.


for the breach of the blockade. And it is a breach if he there purchases an enemy's vessel. An exception to this rule is made where the vessel was originally the property of the purchaser, in which case the transaction is considered as a ransom or compromise.3 Nor does the rule apply to the case of a vessel purchased of one neutral by another.4

If a vessel escapes from a blockaded port she may be captured in any part of her voyage. And where a vessel sailed from a blockaded port in France for New Orleans, it was held that the voyage was not so terminated by her being driven into a port of Great Britain, as to prevent her being seized there. If a place is not invested by land as well as by sea, it has been held that if goods are taken from it by land, or in any other way which is not blockaded, and then shipped, they are not liable to be seized.?

C. Of the Warranty of Convoy. The clause containing the warranty to sail with convoy, which is common in English policies in time of war, is seldom, if

ever, employed in this country. It may, however, be well to state briefly some of the leading English decisions upon this subject.

As a general rule the convoy must be for the whole voyage;9 but as the entire system of convoys is under the direction and control of government, it follows that the warranty is complied with by joining a convoy, however small it may be,10 even if it is not

1 The Byfield, Edw. Adm. 188.
2 The General Hamilton, 6 Rob. Adm. 61; The Vigilantia, 6 Rob. Adm. 122.
8 The Rose in Bloom, 1 Dods. 57.
4 The Vigilantia, 6 Rob. Adm. 122.
5 The Welvaart Van Pillaw, 2 Rob. Adm. 128.
6 The General Hamilton, 6 Rob. Adm. 61.

7 The Ocean, 3 Rob. Adm. 297; The Stert, 4 id. 65. And goods may be sent to a blockaded port in the same indirect way. The Jonge Pieter, 4 Rob. Adm. 79.

8 In England this subject has been to some extent provided for by statute. See 13 Car. 2, stat. 1, c. 9, § 13; 22 Geo. 2, c. 33, $ 17; 38 Geo. 3, c. 76 ; 43 Geo. 3, c. 57. For decisions under these statutes, see Cohen v. Hinckley, 1 Taunt. 249; Henderson v. Hinde, id. 250, note; Hinckley v. Walton, 3 id. 131 ; Long v. Duff, 2 B. & P. 209; Carstairs v. Allnutt, 3 Camp. 497; Metcalfe v. Parry, 4 Camp. 123.

9 Lilly v. Ewer, 1 Doug. 72; Jeffery v. Legender, 3 Lev. 320. 10 Manning v. Gist, 3 Doug. 74. The commander of the convoy in this case sent a


« PreviousContinue »