TERM "COAST" INAPPLICABLE TO TIDAL RIVERS.
THE "TWEE GEBROEDERS," NORTHOLT, MASTER.
3 C. ROB. ADM. 336, 337, 340, 341.November 27, 1801.
Territorial claim to protect capture, on the part of Prussia, held not to be established.
This was a case of considerable importance, as it is respected the claim of a sovereign state for a right of territory over the spot where the capture in question was alleged to have taken place. The case arose on the capture of vessels in the Groningen Watt, on a suggestion that they were bound from Hamburg to Amsterdam, then under blockade ; and a claim was given under the authority of the Prussian minister, averring the place in question to be within the territories of the king of Prussia.*
SIR W. SCOTT.—This is the case of a ship and goods proceeded against for a breach of the blockade of Amsterdam ; they are claimed as being taken on neutral territory ; but it is denied on the part of the captors that they were so taken.
On the blockade of Amsterdam, this court has been inclined to hold, generally, that all sea passages to Amsterdam by that great body of waters, the Zuyder Zee, were blockaded, supposing those sea passages to be in the possession of the enemy. Such as were in the possession of neutrals, it was of opinion, were not included, unless the blockading force could be applied at the interior extremity of their communication. Whether the present capture in question was made in a sea passage to the Zuyder Zee, belonging to the enemy or to a neutral power, will be decided by the considerations which are to be examined in the farther pursuit of this question.
The capture is represented on both sides to have been made in the Watt, which runs along the coast of Groningen, by two or three of his Majesty's
* The claim of the Prussian consul described the captured vessels to have been lying at anchor upon the Outhousen Watt, near Eems, close to the third beacon ; and the capture to have been made, 14th July, 1799, by a boat from the L'Espiegle, then lying in the Wester Balg, and also on the river Eems, and within the territories and dominions of his Prussian Majesty. The affidavit of the captors gave a different account of the situation of the capturing vessel. See Appendix, p. xl. et seq.
ships that went up the Eems. It is not, I think, contended, that the capturing ships were stationed on the neutral territory, unless the whole of the Watt passage is to be so considered.
It will be proper for me to consider, first, the natural quality and position of this place. It is the Watt passage, running along the Dutch coast of Groningen, and called the Groningen Watt, to the Lower Zee.
It is necessary for me to notice here another phrase which has been used, "that all this is river, and not sea." That it is quite so, is not indisputably clear. It is true there are two passages which, during the reflux of the sea, carry down the river title of Eems a great way from the main land ; and for the convenience of navigation they are indicated by buoys. But surely it might be questioned, without impropriety, supposing no decided understanding in this particular case how far such streams, beyond all capes and headlands, are, at all times of the flow of the ocean, to be deemed mere river. In common understanding, the embouchure, or mouth of a river, is that spot where the river enters the open space to which the sea flows, and where the points of the coast project no farther. There may be shoals and-sands beyond, as on the coasts of this kingdom the Godwin sands ; and buoys may be placed, and they may be distinguished from the sea at low water. But what are these when the tide flows up, or at half tide, one way or the other? Undistinguishably parts of the ocean, undique pontus. I will not venture to lay down any thing more positively on this matter, than that the nature of such sea passages must be held to be divisi imperii between the ocean and the main land ; and when the sea flows, for navigation, they should rather seem to belong to the former than the latter.
It is the less necessary to be precise on this point, because the capture in question did not happen in these streams, the eastern or western Eems, but in the Watt. And supposing that these two passages were at all times rivers, and mere rivers, how does it follow that all the waters with which they communicate, are not only river but parts of those rivers? They seem, certainly, not to be so considered by the neighboring states. Do they carry with them the name of Eems? By no means. They have a denomination of their own. In the chart which has been exhibited, and is referred to on both sides, though not introduced by authority, how is the bank of land described? The new Zee dyke, not the river dyke, which it ought to be, if the portion of waters was considered as river, and not sea. How is the portion of waters at the other end of it denominated? The Lower Zee. What do the witnesses say? It is stated in one affidavit, that Groningen extends as far as a man standing on the coast can throw a horse-shoe. So the other witness uses the same expression, standing on the coast, a word very strangely applied to a river, but the proper word applied to the sea. Where is the horse-shoe to be thrown? Into the sea, not into the river, as they all express themselves.
[Plan follows on page 2094A.