she will remain useless in port during the uncertain period that the blockade may continue. Nor is it admitted, in such cases, as an adequate excuse, that the object of the voyage was to bring away property that was absolutely locked up by the blockade, and which there was no other mode of extricating. It can rarely happen that other channels of communication are not open, and, in all cases, the property may be sold, and its value remitted in money or in bills. The only adequate excuse, is that of physical necessity.' '

§ 29. We have already stated that any attempt to enter a blockaded port, after due information or warning, subjects the party to the penalty of the law; but, whether the mere declaration of the master, when detained and warned by a ship of the blockading force, of his intention to persist in the voyage, notwithstanding the warning, is to be considered as evidence of an actual attempt, justifying an immediate capture, is exceedingly doubtful.' The mere hasty expressions of the master, resulting from resentment and surprise, certainly ought not to produce the condemnation of property entrusted to his care. But where the declaration of the master is proved to be deliberate and is accompanied by such facts as induce the court to believe that he really intended to carry it into effect, Sir William Scott was of opinion. that it supersedes the necessity of proving further facts, and it is of itself a sufficient ground of condemnation. Chief Justice Marshall, in enumerating several general acts that would be justly regarded as evidence of such an attempt, adds: Possibly the obstinate, determined declarations of the master, of his resolution to break the blockade, might bear

1

1 Duer, On Insurance, vol. i. pp. 671, 672; the 'Comet,' I Edw. R., 32; the Charlotte Christine,' 6 Rob., 103; the 'Charlotta,' I Edw. R., 252. A neutral professing to be engaged in trade with a neutral port, under circumstances which warrant close observation by a blockading squadron, must keep his vessel, while discharging or receiving cargo, so clearly on the neutral side of the blockading line as to repel, as far as position can repel, all imputation of intent to break the blockade. Neglect of that duty may well justify capture and sending in for adjudication; though in the absence of positive evidence that the neglect was wilful, it might not justify a condemnation.-The 'Dashing Wave,' 5 Wall.,

170.

Communication of neutral ships of war with a blockaded port is permissive only, and such ships should on no account embark any property with the object of passing the blockade, except official despatches of the consul of their own nation or of consuls of nations in amity with the blockading power.

the same interpretation.' The Supreme Court of Pennsylvania have clearly decided that the declarations of the master, however positive and unequivocal, are evidence merely of intention, which, unless followed by some voluntary act after his release, can never constitute the offence to which alone the penalty attaches.1

§ 30. Although the declarations of the master, during his detention, will not constitute in itself sufficient cause for condemnation, his subsequent conduct, either with or without such declarations, may determine the lawfulness of his capture. It is his duty, on being duly warned, to alter the course of his voyage, as soon as he is at liberty to resume it, and to depart at once from the vicinity of the blockaded port. He has no right to linger in its neighbourhood, on the pretence of a deliberation as to the course he shall pursue, thus compelling the belligerent ship, either to leave him to enter the blockaded port without obstruction, or to wait for an indefinite time to watch his motions. He is bound to manifest, by his immediate acts, his determination to obey the warning he had received. Hence a very short delay, an interval probably of less than an hour, will enable the belligerent to determine whether the master is pursuing the course he is bound to observe, or whether the temporary detention may not lawfully be followed by a final capture. It is scarcely possible that a neutral ship, thus circumstanced, shall escape, otherwise than by an abandonment in good faith of the voyage, that the warning she had received has rendered illegal.

§ 31. If the master persist in his voyage to a blockaded port, in defiance of a sufficient and legal warning, no excuse is ever admitted for his conduct, and the ship and cargo are

The Apollo,' 5 Rob., 289; Fitzsimmons v. Newport Ins. Co., 4 Cranch. R., 185; Calhoun v. Ins. Co. of Penn., 1 Binny R., 293.

Intoxication of the master is no excuse for a breach of blockade. Sir William Scott remarked on this subject, that if such excuse were permitted, there would be eternal carousings in every instance of violation of blockade.'-The 'Shepherdess,' 5 Rob., 262.

A vessel and cargo were condemned for breach of blockade, the evidence showing an actual hostile destination.-The 'Alma,' 2 Sprague, 203.

The case of the 'Revere' (2 Sprague, 107) shows what circumstances were considered sufficient to warrant the condemnation of a vessel for an attempt to violate the blockade of Beaufort, N.C., during the American Civil War, 1861.

invariably condemned. His misconduct may, in no degree, be imputable to his owners, yet their innocence affords no protection to their property. His acts may be in direct violation of their express instructions, may even amount to fraud or barratry: yet his owners will continue to be bound by their legal consequences, to the same extent, as if they had been performed under their previous sanction and authority. Indeed the rule, so far as relates to the ship, and the property of its owners, is universal, that they are concluded by the acts of the master. He is their agent, and the property they have entrusted to his care is, in all cases, responsible for his just observance of the duties of neutrality.

§ 32. There are but few cases where the entrance of a vessel into a blockaded port, or an attempt to enter, is ever justified or excused. A licence from the government of the blockading State to enter the blockaded port is always a sufficient justification, and, as will be shown hereafter, all such licences are to be liberally construed. But a general licence to enter the port before the blockade would not be available after it had commenced; to constitute a sufficient protection it must authorise the vessel to enter the port as one blockaded. Again, a physical necessity, arising from the immediate need of water, or provisions, or repairs, produced by stress of weather, which leave no other alternative for safety. But as, in order to cover a real design to dispose of a cargo,' says Mr. Duer, 'the pretext of a necessity is easily framed, the excuse is necessarily liable to great suspicion, and in all cases as justly subject to a rigid scrutiny. Hence, it is established that the evidence relied on must clearly show an imperative and overruling compulsion to enter the particular port under blockade. It is not enough that it appears that there were existing and adequate causes to justify the ship in deviating from her voyage, to an intermediate port of necessity. It must also appear that she could not have proceeded, without hazard, to any other port than that blockaded, and that in no other port to which she could have proceeded could her necessary wants have been supplied. In short, the necessity that alone can save her, when captured, from condemnation, must be evident, immediate, pressing, and, from its nature, not capable of

removal by any other means than by the course she had adopted.'1

$ 33. As a general rule the egress of a ship, during blockade, is regarded as a violation of the blockade, and renders her liable, in the first instance, to seizure, and to exempt her from condemnation the most satisfactory proof is required to be given. There are, however, many cases where the egress is innocent, although the knowledge of the blockade, by the master, is admitted or proved. But the taking on board a cargo, with a knowledge of the blockade, is considered a fraudulent act, and the sailing of the ship, with such a cargo, a violation of the blockade. Nor is it necessary that the whole of the cargo should be thus laden; where even a portion of the goods are taken on board after the existence of the blockade is known, the act is considered as a fraud that justifies a general condemnation. The ground of these decisions is, that after the commencement of a blockade, the interposition of a neutral to assist in any way the exportation of the property of the enemy, tends directly to relieve him from the distress that the blockade was meant to create. It would defeat a principal object of the hostile proceeding; consequently, after the commencement of the blockade, a

1 Duer, On Insurance, vol. i. pp. 678, 679; the Hurtige Hane,' 2 Rob., 124; the Elizabeth,' I Edw., 198; the Arthur,' 1 Edw., 202; the Charlotta,' Edw., 252; the 'Hoffnung,' 2 Rob., 163; Bello, Derecho Internacional, pt. ii. cap. viii. § 5.

A Spanish owned vessel, in distress, on her way from New York to Havannah, by leave of the Admiral commanding the squadron, put into Port Royal, S. C. (then in rebellion and blockaded by a fleet of the United States), and was there seized and made use of by the Government of the United States. She was afterwards condemned as a prize. The Supreme Court decided that she was not a lawful prize or subject to capture, and that her owners were entitled to fair indemnity, though it might be well doubted whether the case was not more properly a subject for diplomatic adjustment.-The 'Nuestra Señora de Regla,' 17 Wall., 29. Excuse of distress set up as a justification for entering a blockaded port admitted, the deviation into such a port having been proved to have been necessary under the circumstances. Restitution decreed.-The 'Charlotta,' I Edwards, 252.

The permission, by a blockading force, to some unprivileged ships to go in and others to come out, would vitiate even a blockade by notification; but such permission accorded to certain slave ships, from motives of humanity, was held not to work such a result. The liberation of certain vessels, after seizure and detention for breaking the blockade, was hell not to amount to a renunciation of the rights of blockade.-The 'Rolla,' 6 Rob., 374.

Particular licences will not vitiate a blockade.-The 'Fox,' and others, 1 Edwards, 320.

neutral is no longer at liberty to make any purchase in the place, with a view to exportation.

§ 34. There are a number of cases in which the egress of the neutral vessel, during a blockade, is justified or excused: First, If the ship is proved to have been in the blockaded port when the blockade was laid, she may retire in ballast, for such egress affords no aid to the commerce of the enemy, and has no tendency to defeat any legitimate purpose for which the blockade was established. Second, If the ingress was from physical necessity, arising from stress of weather, and the immediate need of water, or provisions, or repairs. Third, Where the entrance with a cargo was authorised by a licence, such licence is construed to authorise the return of the ship with a cargo. Fourth, Where a neutral ship, arriving at the entrance of a blockaded port, in ignorance of the blockade, is suffered to pass, there is an implied permission to enter, which fully protects her egress. But this implied permission does not, of necessary consequence, protect the cargo, for its owners may be guilty of a criminal violation of the blockade even where the ship is innocent. Fifth, A neutral ship, whose entry into the blockaded port was lawful, is permitted to return with her original cargo that has been found unsaleable, and re-shipped during the blockade. Sixth, Another, and a very equitable exception,' says Duer, 'is allowed in favour of a neutral ship that leaves the port in the just expectation of a war between her own country and that to which the blockaded port belongs. In this case, she is permitted to depart, even with a cargo purchased from the enemy during the blockade, if the purchase was made with the funds of neutral owners, and the investment and shipment were probably necessary to save the property, in the event of a war, from a seizure and confiscation by the enemy. But it is not the mere apprehension of a remote and possible danger that will entitle a neutral ship to this exemption. To save the vessel and cargo from condemnation, it must appear that there was a well-founded expectation of an immediate war, and consequently, that the danger of the seizure and confiscation of the property was imminent and pressing.' 1

1 Phillimore, On Int. Law, vol. iii. § 313; Duer, On Insurance, vol. i. pp. 682, 683; the 'Maria Schroeder,' 4 Rob., 89, note; the Drie