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reason for holding the delictum to be at an end, by the mere arrival of the vessel at her destined port, upon the
of the offence. The true ground upon which the offending vessel is, at any time during the existence of the blockade, absolved from liability, is, that the rights of third parties may have intervened, who should not be exposed to loss for the commission of an offence in which they did not participate, and of which they had no knowledge.
But when a vessel arrives at her destination, fresh from a blockaded port—having successfully run the gauntlet of the naval force, stationed for the protection of the belligerent right—the achievement is ordinarily so paraded as a triumphant and meri. torious evasion of an obnoxious, if not tyrannous right, that the last employment of the vessel becomes matter of notoriety. No parties, therefore, who may see fit, then and there, to entrust their capital in the succeeding enterprise of the vessel, can be regarded in the light of innocent parties in that sense in which innocence consists of ignorance of the stain of guilt resting upon her, by reason of her recent and last employment.
The reason for the rule of limitation, in this view, would rarely, if ever, exist, until after the vessel had made a distinct voyage, subsequent to that of her offence.
There have been several occasions for the application of this doctrine, during the existing war in the United States, and it has been recognized and enforced by the learned judge of the United States Court, in the District of New York, although no case has occurred in which condemnation has been
decreed, solely upon the ground of violation of the blockade upon the voyage preceding that of the capture, because, in each case, other and distinct grounds of condemnation have also existed. The affirination of the doctrine of the English cases, has, however, been so clear, as to leave no doubt that condemnation would have been decreed in a case where no other cause of capture was averred.
In March, 1862, the schooner Elizabeth, then at the port of Charleston, South Carolina, and owned by a citizen of that place, took on board a cargo of cotton, and successfully running the blockade of the port, arrived at the convenient neutral British port of Nassau, New Providence. At this port, her name was changed to The Mersey, and her nationality was ostensibly changed by a transfer to a British subject; and she was laden with a cargo consisting of articles of great scarcity at Charleston, but as common, and of not more value, than coals at Newcastle, in the port of Baltimore, to which port she was documented for a voyage. Upon this voyage she was captured, when two days sail from Nassau, hy the United States cruiser Santiago de Cuba, and sent to New York for adjudication. It will be seen by this recital, that other grounds of capture were involved in the case; but the court, in assigning the causes upon which condemnation was de creed, indicates this as the second cause, in the words following:
“ She came out of Charleston, by evading the blockade of that port, and was seized on her first voyage subsequent thereto.” (The Christiansberg, 6 Rob., 376, 382, and notes. The General Hamil ton, 6 Rob., 62.)
By the same learned judge, this was made a distinct ground and cause of condemnation in the case of the Major Barbour, captured in February, 1862, by the United States cruiser De Soto, on a voyage succeeding that
upon which she successfully violated the blockade of the port of New Orleans.
Also, in the case of the Joseph II. Toone, captured October 1st., 1861, by the United States cruiser South Carolina, while (being documented for a voyage to Tampico), she was steering into Barataria Bay, a bayou connecting with the Mississippi River below New Orleans; and, having on the preceding voyage, in August, successfully violated the blockade of the port of New Orleans, by taking a cargo out of that port, by way of Berwick Bay, a place of which New Orleans is the port of entry and clearance, and connected with that port by a short railroad.
The question whether a neutral, knowing of the establishment of a belligerent blockade, may lawfully sail to the mouth of the blockaded port, river, or estuary, with the bona fide intent to inquire there, as to the continued existence of the blockade, has been made the subject of frequent and earnest discussion in several cases of prize, recently adjudicated, in the District of New York. (Vide vol. of MS., Decisions. The Cheshire,—The Delta,The Empress.)
In the cases of The Cheshire and The Delta, the dishonesty of the approach to the blockaded port, was manifested, among other criminating circumstances, by the false destination of the vessels, as set forth in their papers.
The Cheshire was captured off the port of Savannah, Georgia. She was documented for a voyage from Liverpool to Halifax, or Nassau, not as ports of contingent destination, in the event of the blockade being found, upon inquiry, to be still in existence, but as ports of absolute destination, the design to deliver her cargo at Savannah in any event, heing sedulously concealed.
The Delta was captured off the port of Galveston, Texas. She was documented for a voyage to the Mexican ports of Minatitlan, or Matamoras, as ports of absolute destination, not contingent upon finding Galveston still blockaded, no mention being made of Galveston.
In these cases, therefore, the question was not so directly presented, as in that of The Empress, which vessel sailed from Rio de Janeiro, upon a voyage to New Orleans, by the very terms of her charter, and all her papers, with written instructions, “if she found that port still under blockade, to turn away and proceed to the port of New York."
It will be seen that here was no direction to inquire, and not attempt an entry without inquiry, but to go to New Orleans, and there deliver her cargo, unless turned away by a blockading force.
This furnished grounds of suspicion of dishonesty of design, in the approach. And there were, in the case, in the opinion of the court, other and more pregnant grounds of suspicion of criminal intent. But the ground of simulation of papers, and false destination, regarded by Sir William Scott as so conclusive of dishonesty of purpose, in the case of The Carolina, 3 Rob., 75, was wanting here, and
therefore the question of the neutral right to approach the very port blockaded, for the honest purpose of inquiry, was more nakedly presented, and was earnestly and elaborately argued.
The doctrine laid down by Sir William Scott, in the case of The Betsy, 1 Rob., 322, and The Spes and Irene, 5 Rob., 76, was adhered to and affirmed by the learned judge in the following language:
“ The earlier decisions of the prize courts indicated, that the act of sailing for a blockaded port, with knowledge of the blockade, was itself evidence of an attempt to evade the blockade; but the state of the law upon that point now is, that some overt act denoting the forbidden attempt, must be shown, in addition to an intention to commit such infraction, however strongly the latter may have been indicated and persisted in. (Phillips, on Ins., 459, art. 832, and cases cited; Graves vs. U. S. Ins. Co., 1 Caines' Ca., 1; Fitzsimmons vs. Newport Ins. Co., 4 Granch, 410; 1 Kent, 148.)
“The rule is also so far mitigated in its application, that going purposely to a blockaded port, with the intention properly notified on the ship's papers, or otherwise fairly disclosed, to enter the port, may be excused in a neutral ship, if the object is honestly to inquire elsewhere, whether the blockade is still in continuance, and if so, to avoid the blockaded port, and complete the voyage at a
The hazard of allowing such privilege, and the necessity of observing the utmost ingenuousness in its indulgence, is emphatically noted in the authorities (Kent, 148, 149; 1 Duer, on Ins., 669, $$ 42, 43); and accordingly, the courts take heed, in administering it, that neutrals be not permitted,