French declared a blockade between certain fixed points of the island of Formosa. This blockade, however, the British Government declined to recognise as pacific, and further protested against it that it was invalid because not effectual as required by the Declaration of Paris.

The affair known as the Don Pacifico case supplies an exceptional instance of blockade short of actual hostilities. Don Pacifico was a Jew at that time resident in Athens, but a British subject born at Gibraltar. Owing to some question of religious observance, the mob attacked and plundered Pacifico's house at Athens, and this gentleman claimed compensation-a grotesquely exaggerated sum, as it turned outthrough the British Government. The Greek Government being slow to afford redress, the British Government adopted the very extreme measure of blockading the Greek ports, so as to prevent the egress of the national public vessels, and went to the further length of capturing and detaining any such vessels found upon the sea. Eventually the matter was settled by arbitration. (On this case, and on the subject of Pacific Blockade generally, see Pitt Cobbett's Leading Cases, pp. 100-102.)

Again, in 1861, owing to the plundering of a British vessel wrecked on the Brazilian coast-for which compensation was demanded by the British Government and refused-the British Government blockaded the port of Rio de Janeiro, and captured five Brazilian vessels. Ultimately these were restored, compensation being paid by the Brazilian Government under protest; but some years elapsed before international relations were resumed between the two countries (u).

Still more recently, viz., in 1886, on the refusal of Greece, Bulgaria, and Servia, to disarm in response to a collective note of the powers, orders were given to the commanders of

(u) Wheat. Int. Law, 2 Eng. ed. 352.

the united squadrons "to establish a blockade of the coasts of Greece against all ships under the Greek flag." The notification of the blockade stated that "every ship under a Greek flag, which may attempt to violate the blockade, will render itself liable to be detained." The instructions given to the British commander, in view of the determination of the blockade, ran as follows:-"Whenever the blockade is raised, you will receive instructions to release the vessels which you have detained. . . . . Her Majesty's Government do not admit any liability whatever to compensation to the owners of such vessels on the ground of damage suffered during such detention" (x).

(For an instructive treatise on the subject of Pacific Blockade generally, reference may be made to the Law Magazine for February, 1889.)

Insurance.

in

The subject of blockade is, for purposes of marine insurance, many respects identical with that of Embargo, and under this head (pp. 36-48, supra) the question of liability under the marine policy in respect of blockade has in some measure already been considered.

As has been observed, there is nothing illegal in the attempt to violate or break, or, as it is currently termed, to run a blockade, but vessels engaging in this enterprise do so with the knowledge that if the attempt fail-or indeed, possibly, as has been shown, though for the moment it may succeed—confiscation of ship and cargo may ensue. The fact that such a risk is to be encountered must consequently be communicated to the underwriter when the insurance is effected; or it must be established that this material

(x) State Papers, 1886, Nos. 4731-2, 4765-6.

fact was within his knowledge notwithstanding that no such special communication was made to him. For otherwise the concealment will be held to have vitiated the insurance (y). But in the event of this country becoming a belligerent, any such insurance in favour of neutral vessels contemplating breach of British blockade would be void on the ground, first, of insurance against British capture, and, secondly, it may be supposed that vessels having as destination a blockaded port and seeking to evade the blockade must be regarded as engaged in the trade of the enemy, and therefore not capable of British insurance. So that knowledge on the part of the underwriter would in such a case be beside the question (z).

If a vessel be warranted neutral property, it is implied that she shall be so navigated as not to forfeit her character of neutrality; and any attempt to violate a blockade would consequently be held a breach of the neutral warranty, and the underwriter would be freed from all liability under the policy (a).

That blockade of the port of destination is not a peril within the policy has already been set forth sub Embargo (pp. 39–48, supra).

If a master, without the knowledge or consent and in disobedience to the orders of his owners, be guilty of intentional breach of blockade, and the vessel be seized in consequence, the loss may be attributed to barratry (b). But if the policy be warranted free from capture and seizure, this warranty, according to the decision in Cory v. Burr (vide p. 79, supra), would exclude capture consequent on barratry (c).

(y) Arnould, 5th ed. vol. 2, 700.

(z) Vide sub Void Insurances, p. 405, infra.

(a) Arnould's Insce., 5th ed. p. 609. Vide, also, sub War Warranties, p. 386, infra.

(b) Goldschmidt v. Whitmore, 3 Taunt. 508.

(c) The following are instances of clauses apparently intended to exclude risks consequent on breach of blockade, or carriage of contraband:

"Warranted free from capture, seizure, or damage received consequent on being engaged in trades contraband of war, or consequent on any breach, or attempted breach, of blockade." Owen's Marine Insce. Notes and Clauses, 2nd ed. 20.

"Warranted free from capture, seizure, or consequence of any attempt thereat, arising from any breach, or attempted breach, of blockade, or from

Whether the master is to be presumed in law to have had notice of the blockade is a question for the Court; but as was decided in The Monarch, whether breach of blockade has been intentional or otherwise must be left to the jury to determine. In this case the vessel was seized when approaching the blockaded port, but the master disclaimed any intention of violation; as to which Lord Tenterden observed that the vessel might have sailed for Buenos Ayres-the blockaded port-without contravening the law of nations, provided it was a part of the original intention to inquire as to the continuance of the blockade at some port of the blockading country; and that inquiry might have been made at Monte Video or of any of the Brazilian ships met with in the River Plata; and that the sailing for Buenos Ayres did not of itself indicate any intention to violate the blockade (d).

With respect to capture in connexion with violation of blockade, reference may be made to the subject of capture generally, p. 68, supra.

being employed in any contraband or unlawful trade, or performing any unlawful act."

Ibid.

(d) Naylor v. Taylor, 9 B. & C. 718, An. 1829. Tide also Medeiros v. Hill, An. 1832, p. 419, infra; and Harratt v. Wise, ibid. 712, An. 1829; and cf. The Columbia, p. 117, supra.

RECAPTURE

CONSIDERED IN CONJUNCTION WITH THE LAW OF POSTLIMINY AND THE PAYMENT OF SALVAGE TO RECAPTORS.

The term recapture is used to denote the retaking, by force of arms or by stratagem from without, of property seized by the enemy. If the recaptors be from within-as, for instance, if the crew of the captured vessel rise and overpower the prize-crew placed on board by the captors-then the recovery of the property is termed "rescue."

Postliminium." The jus postliminii," says Wheaton, in his "International Law" (e), "was a fiction of the Roman law, by which persons or things taken by the enemy were held to be restored to their former state when coming again under the power of the nation to which they formerly belonged." The effect of this law is, that property recaptured or rescued from the enemy and brought within the territory of the original ownership does not vest in the recaptor or rescuer, but is held still to belong to the original owners, to whom it must be restored, against payment of salvage by them. If the property be brought into neutral territory, the law of postliminy does not apply to it, but in the case of prisoners it does apply. Or rather, so long as prisoners remain on board the vessel of their captors, they are appa

(e) 2 Eng. ed. 438.