The Olinde Rodrigues

174 U.S. 510, 19 S. Ct. 851, 43 L. Ed. 1065, 1899 U.S. LEXIS 1515
CourtSupreme Court of the United States
DecidedMay 15, 1899
Docket704
StatusPublished
Cited by10 cases

This text of 174 U.S. 510 (The Olinde Rodrigues) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The Olinde Rodrigues, 174 U.S. 510, 19 S. Ct. 851, 43 L. Ed. 1065, 1899 U.S. LEXIS 1515 (1899).

Opinion

Mr. Chief Justice Fuller,

after making the above statement, delivered the opinion of the court.

We are unable to concur with the learned District Judge in the conclusion that the blockade .of the port of San Juan at the time this steamship was captured was not an effective blockade.

. To be binding, the blockade must be known, and the blockading force must be- present; but is there any rule of law determining that the presence of a particular force is essential in order to render a blockade effective % We do not think so, but on the contrary, that the test is whether the blockade is practically effective, and that that is a question, though a mixed one, more of fact than of law.

The fourth maxim of the Declaration of Paris, (April 16, 1856,) was: “ 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.” Manifestly this broad definition was not intended to be literally applied. *514 The object was to correct the abuse, in the early part of the century, of paper blockades, where extensive coasts were put under blockade by proclamation, without the presence of any force, or an inadequate force; and the question of what might be sufficient force was necessarily left to be determined according to the particular circumstances.

This was put by Lord Russell in his note to Mr. Mason of February 10, 1861, thus: “The Declaration of Paris was in truth directed against what were once termed ‘paper blockades ; ’ that is, blockades not sustained by any actual force, or sustained by a notoriously inadequate naval force, such as an occasional appearance of a man-of-war in the offing or • the like. . . . The interpretation, therefore, placed by Her Majesty’s government on the Declaration was, that a blockade, in order to be respected by neutrals, must be practically effective. . . . It is proper to add, that the same view of the meaning and effect of the articles of the Declaration of Paris, on the subject of blockades, which is above explained, was taken by the representative of the United States at the Court of St. James (Mr. Dallas) during the communications which passed between the two governments some years before the present war, with a view to the accession of the United States to that Declaration.” Hall’s Int. Law, § 260, p. 730, note.

The quotations from the Parliamentary debates, of May, 1861, given by Mr. Dana in note 233 to the eighth edition of Wheaton on International Law, afford interesting illustrations of what was considered the measure of effectiveness; and an extract is also there given from a note of the Department of Foreign Affairs of France of September, 1861, in which that is defined: “ Forces sufficient to prevent the ports being approached without exposure to a certain danger.”

In The Mercurius, 1 C. Rob. 80, 84, Sir William Scott stated: “ It is said, this passage to the Zuyder Zee was not in a state of blockade; but the ship was seized immediately on entering it; and I know not what else is necessary to constitute blockade. The powers who formed the armed neutrality in the last war, understood blockade in this sense; and *515 Russia, who was the principal party in that confederacy, described a place to be in a state of blockade, when it is dangerous to attempt to enter into it.”

And in The Frederick Molke, 1 C. Rob. 86, the same great jurist said: “For that a legal blockade did exist, results necessarily from these facts, as nothing farther is necessary •to constitute blockade, than that there should be a force stationed to prevent communication, and a due notice, or prohibition given to the party.”

Such is the settled doctrine of the English and American courts and publicists, and it is embodied in the second of the instructions issued by the Secretary of the Navy, June 20, 1898, General Order No. 492: “A blockade to be effective and binding must be maintained by a force sufficient to render ingress to or egress from the port dangerous.”

Clearly, however, it is not practicable to define what degree of danger shall constitute a test of the efficiency and validity of a blockade. It is enough if the danger is real and apparent.

In The Franciska, 2 Spinks, 128, Dr. Lushington, in passing on the question whether the blockade imposed on the port of Eiga was an effective blockade, said: “ What, then, is an efficient blockade, and how has it been defined, if, indeed, the term ‘ definition ’ can be applied to such a subject ? The one definition mentioned is, that egress or entrance shall be attended with evident danger; another, that of Chancellor Kent, (1 Kent’s Com. 146,) is, that it shall be apparently dangerous. All these definitions are and must be, from the nature of blockades, loose and uncertain; the maintenance of a blockade must always be a question of degree, — of the degree of danger attending ships going into or leaving a blockaded port. Nothing is further from my intention, nor, indeed, more opposed to my notions of the Law of Nations, than aity relaxation of the rule that a blockade must be efficiently maintained; but it is perfectly obvious that no force could bar the entrance to absolute certainty; that vessels may get in and get out during the night, or fogs, or violent winds, or occasional absence; that it is most difficult to judge from numbers alone.”

*516 “ It is impossible,” says Mr. Hall, (§ 260,) “ to fix with any accuracy the amount of danger in entry which is necessary to preserve the validity of a blockade. It is for the prize courts of the belligerent to decide whether in a given instance a vessel captured for its breach had reason to suppose it to be non-existent; or for the neutral government to examine, on the particular facts, whether it is proper to withhold or to withdraw recognition.”

In The Hoffnung, 6 C. Rob. 112, 117, Sir William Scott said : “When a squadron is driven off by accidents of weather, which must have entered into the contemplation of the belligerent imposing the blockade, there is no reason to suppose that such a circumstance would create a change of system, since it could not be expected that any blockade would continue many months, without being liable to such temporary interruptions. But when a squadron is driven off by a superior force, a new course of events arises, which may tend to a very different disposition of the blockading force, and which introduces therefore a very different train of presumptions, in favor of the ordinary freedom of commercial speculations. In such a case the' neutral merchant is not bound to foresee or to conjecture that the blockade will be resumed.” And undoubtedly a blockade may be so inadequate, or the negligence of the belligerent in maintaining it may be of such .a character, as to excuse neutral vessels from the penalties for its violation.

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174 U.S. 510, 19 S. Ct. 851, 43 L. Ed. 1065, 1899 U.S. LEXIS 1515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-olinde-rodrigues-scotus-1899.