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The Franciska

State Trials Cited authorities 18 Cited in 1 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date30 November 1855
Date30 November 1855
CourtState Trial Proceedings
THE FRANCISKA. NORTHCOTE against DOUGLAS. PROCEEDINGS IN THE HIGH COURT OF ADMIRALTY BEFORE DOCTOR LUSHINGTON, DECEMBER 20TH, 1854, JANUARY 27TH, 1855, FOR CON- DEMNATION OF PRIZE. (Reported in 2 Ecc. & Adm. 113, in Spinks, Prize Cases, p. 111, and in a special report by Deane.) PROCEEDINGS BEFORE THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL ON APPEAL FROM THE HIGH COURT OF ADMIRALTY, JULY 26TH, 27TH, 30TH AND 31ST, AUGUST 1ST, AND 30TH NOVEMBER, 1855. (Reported in 10 Moo. P.C. 37.) In April 1854, during the war between the Allies and Russia, Vice-Admiral Sir C. Napier, as Commander-in-Chief of Her Majestys naval forces in the Baltic, established an effective de facto blockade of the Gulf of Riga. It had not been diplomatically notified by the Allies to neutral governments. The belligerent powers had previously agreed to relax any such blockade of ports in the Baltic in relation to their own ships until the 15th May. The Franciska, a neutral ship, left Copenhagen for Riga on the 13th May, touching at Elsinore the next day, and was captured on the 22nd off Riga without having been warned off by the blockading forces. On the 13th and 14th May, it was notorious at Copenhagen and at Elsinore that a blockade had been established, but it was understood to extend, and was officially described as extending, to all Russian ports in the Baltic. Held by the Judicial Committee, on appeal from the High Court of Admiralty, which had condemned the vessel for breach of blockade- 1. Authority to institute blockade. The admiral must be presumed to have had authority to establish such de facto blockade as he might deem advisable, without express authority from his Government. (See p. 417.) 2. Undue Relaxation. If belligerents wholly or partially relax a blockade in favour of any of themselves, it cannot be enforced against neutrals. Quare, however, as to a partial relaxation, if extended equally to neutrals and fully notified to them. (See pp. 417-424.) 3. Dc facto blockade Breach Knowledge Notoriety. A vessel cannot be condemned for breach of a de facto blockade, unless the port for which she was sailing was known by her master or owner to be in a state of legal blockade. Notoriety of a de facto blockade may be evidence of knowledge of it, but iu order to make it sufficient evidence, the facts which are notorious must appear to be such as to leave no reasonable doubt as to the existence of the blockade (1) and to indicate its real de facto limits. (See pp. 424-426.) 4. Evidence Further Proof. Further proof as to the legality and notice of the blockade beyond the ships papers and the standing interrogatories was rightly allowed both to the claimant and to the captor, the formal proofs not being decisive. (See p. 415.) (1) See Sir Godfrey Lushington and Professor Hollands Manual of Naval Prize Law, p. 31. The practice of France, Italy, and Spain is to regard a special warning to the neutral vessel as necessary in every case. See Calvo, Droit International, 2845 ; Pistoye et Duverdy, Traiti des Prises Maritimes, vol. 1, p. 370 ; and Hall, International Law, 258. 351] The Franciska, 1854-55. [352 By Dr. Lushington in the court below- 5. Effectiveness Distance Due Maintenance. A blockade is efficient if ingress and egress involve imminent risk of capture.(i) The distance of the blockading force is not material so long as it is effective. The evidence of a commander-in-chief is the best evidence of efficiency. Occasional elusion does not avoid a blockade ; but it may be avoided if ingress or egress be capriciously permitted. (See pp. 370-374.) 6. Prize Court(2) Evidence. Prize Courts are not bound by municipal rules of evidence. (See p. 392.) 7. Construction of Treaties (3) Revocation Alteration Treaty with Denmark of 1670 Special warning. (See p. 397, &c.) The Judicial Committee reversed the sentence of condemnation because the blockade had been unduly relaxed, and because the vessel had not been affected with due notice. (1) Dr. Lushingtons definition is adopted in Halls International Law, 260. See, also, Manual of Naval Prize Law, p. 29 ; Lawrence, Principles of International Law, p. 582. The Declaration of Paris (see below, p. 352n.) states that " 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." This has been interpreted in the sense here laid down ; see Mountague Bernard, The Neutrality of Great Britain during the American Civil War, citing despatch of Earl Russell to Lord Lyons of February 15th, 1862, p. 245, and letters of Earl Russell to Mr. Mason, pp. 292, 295. As to the divergent views of Continental writers, see Hall, 260. (2) See App. D., below, p. 1,223. (3) As to the construction of treaties, see Vattel, Book 2, c. 17 ; Phillimore, International Law, part v. c. 8 ; Calvo, Droit International, 1627, &e. ; Pntdier Fodere, Traite de bruit International ; Protocols of London Confennee, 1871 in State Papers, vol. 61, p. 1198. belligerent rights appertaining to Her by the law of nations. " It is impossible for Her Majesty to forego the exercise of Her right of seizing articles contraband of war, and of preventing neutrals from bearing the enemys dispatches, and she must maintain the right of a belligerent to prevent neutrals from breaking any effective blockade elan vessels at the beginning of the war which may be established by an adequate force were consistent with the maintenance of a against the enemys ports, harbours, or coasts." blockade of such ports against neutral vessels ; (2) as to whether neutral vessels Subsequent articles of this declaration approaching the blockaded ports were, waived the right of seizing enemys pro- affected with notice of the blockade, there r perty in neutral ships, and neutral pro-having been no diplomatic notification of perty in enemys shi s, and announced the establishment of the blockade of these ports, but only a communication of an intention to institute a much more extensive blockade, including all the Russian ports in the Baltic and in the gulfs of Finland and Bothnia, and an erroneous communication that such mom extensive blockade had been in fact established ; (3) as to the general law of blockade. BRITISH DECLARATIONS AND ORDERS IN COUNCIL RELAXING BELLIGERENT RIGHTS. On March 28th 1854, the British declaration of the Causes of War against Russia was issued,(a) and, also, a British declaration with reference to Neutrals and Letters of Marque.(b) The latter declaration stated that- " To preserve the commerce of neutral nations from all unnecessary obstruction, Her Majesty (a) State Papers, vol. 46, p. 33. (b) Th. 36. This was a test case affecting several is willing for the present to waive a part of the vessels captured for breach of the blockade of the Russian coast of Courland established by the naval forces of Great Britain during the war with Russia in 1854. It raised questions (1) as to whether the free ingress into and egress from Russian ports allowed to certain classes of RUB- that it was not tierMajestys present intention to issue letters of marque for the commissioning of privateers.(a) The Order in Council No. 1 of March 29th, 1854, granted general reprisals against Russia.(b) The Order in Council No. 2 of March 29th, 1854, prevented vessels be (a) This declaration, which was issued by the Emperor of the French in identical terms, was the result of a compromise between the two allied governments. " France abandoned her doctrine that enemys ships made enemys goods. England agreed to allow, during her alliance with France in the present war, that free ships made free goods." Phillimore, International Law, vol. 3, cc. ; see Calvo, Droit International, 2540, &c. At the close of the wur the principles of this declaration were embodied in the Declaration of Paris as permanently binding on the signatories of the Treaty of Paris of March 20th, 1856. State Papers, vol. 46. p. 136. (6) State Papers, vol. 46, p. 37. 853]a, 1854-55. [354 The Francis longing to British subjects clearing out for Russia, and ordered a general embargo or stop of Russian vessels in any ports, &c., of Her Majestys dominions.(a) The Order in Council No, 3 of March 29th, 1854, provided that Ru: Sian vessels in Her Majestys dominions should be allowed until the 10th of May to load and depart; also that Russian vessels which had sailed before March 29th from any foreign port for any port in Her Majestys dominions should be allowed to enter such port and discharge. and forthwith depart for any port not blockaded.(b) The Order in Council No. 1 of April 15th, 1854, permitted trade not contraband with the enemy, but maintained the prohibition against British vessels entering enemys ports.(c) The Order in Council No. 2 of April 15th, 1854, extended the indulgence granted by the Order in Council No. 3 of March 29th, which would otherwise have been inoperative owing to the ice-bound condition of the Baltic ports, to Russian vessels which should sail from a Russian port in the Baltic or White Sea before May 15th for any port or place in Her Majestys dominions. (d) The Orders No. 3 of March 29th and No. 2 of April 15th were here in question. Similar measures with regard to Russian vessels were taken by the allied Government of France ; and a Russian ukase allowed English and French vessels in the Baltic six weeks from April 25th for taking on board their cargoes and departing unobstructed. ESTABLISHMENT AND NOTIPICATION OP BLOCKADE IN THE BALTIC. On April 11th, 1854, Sir Charles Napier, Vice-Admiral and Commander-in-Chief of the British fleet in the Baltic, addressed the following letter to Mr! Buchanan, Her Majestys Envoy at the Court of Den-mark "Duke of Wellington, in Kioge Bay, "April II, 1854. " Sta,--I have the honour to acquaint your Excellency, for the information of the Foreign Ministers, Consuls, Vice-Consuls, and Consular Agents residing in the kingdom of Denmark, that Her Britannic Majestys...

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