p. 3804

decision leave no doubt that “ port, haven or creek ” here refer equally to true arms of the sea. After a careful reading of the ease and a study of maps of the locality involved, I do not see how it can be held pertinent to the present issue.*
The geographic setting of the Alaska dispute serves to make clear the meaning of the text relating to it. The Alaskan coast is a true fjord coast, with deep arms of the sea penetrating far into the land and branching most intricately. These true sea arms are usually easily distinguished from the rivers which enter them, the mouths of the latter being most often clearly defined, and in many instances obstructed by deltas or bars. Tides run inland for miles along certain of the rivers, and a few are navigable for a considerable distance. The true sea arms are known as canals, inlets, passages, coves, bays, passes, ports, sounds, gulfs, bights, arms, harbours and straits. It was around the sinuosities of these that the coast-line, used as a reference line for boundary purposes, was to run. The word “ creeks ” does not occur in the Convention of 1903 establishing the Alaskan Tribunal, in the questions submitted to the Tribunal for adjudication, or in the Decision handed down by the Tribunal. The phrase used is always “ the bays, ports, inlets, havens, and waters of the ocean.” The chief point in dispute was not whether the coast-line should run around the inner ends of these arms of the sea, or far up the rivers at the head of the tide ; it was in essence whether it should run from headland to headland across the sea arms, or follow the sinuosities of the coast around their inner ends.
Did the United States, in contending that the eastern boundary of the lisière should follow around the heads of the sea arms, argue that measurement should be made from the head of tide in rivers or lakes, or from the head of salt water in stream channels or lakes basins? By no means.
A careful reading of the Cases, Counter Cases, and Arguments presented before the Alaskan Boundary Tribunal will show : —

(1)  That while the word “ tide-water ” is used by the representatives of the United States in referring to the points from which marine leagues was to be measured inland, it was not used in a technical sense to denote head of tide on rivers, but solely to denote the sea-water of the bays, ports, inlets, havens, and other undoubted arms of the sea.

(2)That the word “ salt-water ” was more commonly employed, but again always as a synonym for the water of undoubted sea arms, and never with respect to the salt water entering the channels of rivers or basins of lakes.

(3)That where surveys were made to secure data for determining the correct position of the boundary at selected localities, the point of departure for calculating the marine leagues was always on the broad expanse of an undoubted sea arm, or at the mouth of a river, and never at the head of tide or salt water in a river channel.

* See Hagg. Adm. Rep. 3, 257-293.

p. 3805

(4)That at no point is the eastern boundary of the lisière more than 10 marine leagues from a broadly open sea arm, whereas the head of tide on many of the rivers is found miles inland from the heads of these open sea arms ; and, what is even more pertinent,

(5)That at no point did the eastern boundary of the lisière as claimed by the United States before the Tribunal exceed the distance of 10 marine leagues from the water of an undoubted sea arm, whereas had head of salt water or head of a tide on the rivers been used as a basis of measurement the boundary claimed must have lain much farther eastward in Canadian territory.

It is true that the use of the word “ tide-water ” in connection with the United States' claim gave rise to some uneasiness on the part of the Canadian representatives, and in their printed Argument it is pointed out that New Orleans, 110 miles above the mouth of the Mississippi, is on tide-water. The glaring absurdity of the theory that the ocean extends to all tide-waters is strongly commented on, and the rejection of the theory is called for.* In the oral argument Sir Robert Finlay still further exposed the absurdity of the contention that measurement should be made from salt water or from tide-water. He spoke in part as follows :—
“ The contention put on behalf of the United States comes to this : That you are to measure your distance from salt water or from tide-water. Sometimes it is put in the shape of salt water, and sometimes in the shape of tide-water. Well, these two contentions may have a very different effect, and it is necessary to look at the precise meaning of that contention. This is a point, of course, of the most enormous importance, because if the answer to this question given by the United States is coupled with their contention as to tide-water, it is difficult to say to what point the lisière may not be carried back. I do not know how far the tide runs up these rivers at the various points on this coast, and to set up such a canon as that which the United States seeks to set up, of taking the limit of tide-water as the point from which you are to measure, is to invite a series of controversies of the most irritating and difficult character.”
Mr. Turner, a United States member of the Tribunal, thereupon asked Sir Robert Finlay :
“ Do you not think the United States' contention might be reasonably construed as meaning tide-water within the bays and inlets?”
Mr. Dickinson, of Counsel on behalf of the United States, then explained :—
“ Mr. Attorney-General, if you will permit me, it might save you some trouble and the Court also if I say that what you are referring to was not used in the technical sense in which you are insisting upon, and was only meant to apply to the heads of the inlets. We do not claim that the coast-line goes up the rivers, and the line which has been projected upon these maps

* Alaskan Boundary Tribunal, V, Part II, 30, 31 (26,27) Washington, 1903.
† Italics are mine.

p. 3806

was not measured up from the water extending up the river, but only from the heads of the inlets. . . . It (tide-water) was only intended to be synonymous with the heads of inlets. No further weight was intended to be given it.”*
Thus it is clear that in the Alaskan Boundary dispute both the United States and Canada expressly repudiated the contention now set up by Newfoundland. that the coast-line enters rivers and that measurement inland from a coast-line should begin at the head of tide on rivers.
The American position was further emphasised by Mr. Hannis Taylor, of Counsel for the United States. The phrase repeatedly used by Mr. Taylor in his oral argument cited in paragraph 33 of the Case of Newfoundland, was not head of tide, but “ where the salt water touches the land,”—a very different thing, as Sir Robert Finlay observed. In fact, Mr. Taylor made it clear that the principle of rise and fall of the tides was not applicable to the issue before the Tribunal ; and it is equally clear from the geographical references in his discussion that when he speaks of salt water touching the land, he has in mind undoubted branches of the sea, like the broad, salt-water inlets characteristic of the coast of Maine and the coast of Alaska. to both of which he refers. In order to show how far he was from advocating any strained interpretation of the extent to which the sea advanced into the land, we may quote the following from his argument, directed specifically to Sir Robert Finlay's reference to tide-water at New Orleans on the Mississippi River :—
“ To avoid any possible question, instead of going 110 miles up some river beyond these inlets, we have stopped at a point at which there can be no claim or controversy. It would be just as easy to prove that the Admiralty Courts had no jurisdiction at the mouth of the Thames as it would be to prove that the water in question is not sea up to the point at which we claim.” He then quotes the Prime Minister of Canada, Sir Wilfred Laurier, as recognizing the head of Lynn Canal as the “ ocean terminus ” of a certain railway, and continues : “ This I am simply giving as a popular interpretation, and it concurs exactly with the scientific, that the end of the head of the inlet is the ocean itself, ...”
The boundary claimed by the United States is shown on Plate 2 of the Atlas accompanying the Case and Counter Case of the United States. In determining the boundary claimed, preparatory studies were made on a base map published by the United States Coast and Geodetic Survey in May, 1903. Several hundred circles were drawn with a radius of ten marine leagues, centering on points selected along the shore-line, the intersections of the circumferences of the circles then being connected by a curved line to give the boundary sought by the United States. From an inspection of these circles it appears that “ these points were chosen without regard to the exact limits reached by salt water or the high points reached by the tides,” but were rather chosen on the shore of mainland or of inlets ; and

* Alaskan Boundary Tribunal, VI, 210-212 (193-195), Washington, 1904.
† Alaskan Boundary Tribunal, VII, 613-614 (549-550), Washington, 1904.

p. 3807

even when at the heads of inlets were almost without exception “ at points where the inlet in each case has an appreciable width and in my judgment might be regarded as an arm of the sea.”* In response to a query as to whether, in reaching its decision, the Alaskan Boundary Tribunal itself paid any attention to head of tide-water or head of salt water, the Engineer to the United States Section of the International Boundary Commission has replied as follows : “ I think you are right in assuming that no attention was ever paid to such fine points as determining whether the ten marine leagues should be measured from the head of tide-water or from any other particular point.”
From the foregoing paragraphs it will be clear that no possible authority can be found in the Alaskan Case for drawing a coast-line into the mouths of rivers or lakes, or for measuring a coastal strip from the head of tide in river channels or lake basins. On the contrary, the Alaskan negotiations served to establish more firmly than ever the principles that the coast-line is limited to the borders of the ocean, including undoubted sea arms ; that it does not enter the rivers ; and that it is not related to the extreme head of salt-water or to the head of tide, where these are found beyond the true borders of the sea.
It is concluded, therefore, that none of the four cases cited by Newfoundland constitute any precedent for deviating from the sound geographic rule, accepted generally by legal authorities and strongly supported by popular usage ; that the coast-line follows the border of the sea and its bona fide bays and inlets by whatever names called, but does not enter rivers or lakes, even where these may be subject to the action of salt water or to the pulsations of the tide.
It now becomes our duty to apply this rule in the vicinity of Hamilton Inlet.

B.THE COAST-LINE OF LABRADOR ENTERS HAMILTON INLET NEAR THAT PART OF THE MAINLAND OPPOSITE INDIAN HARBOUR, FOLLOWS SOUTHWESTWARD ALONG THE MARGIN OF THE INLET TO THE VICINITY OF TIKORALAK HEAD. THENCE EASTWARD ALONG THE SOUTH MARGIN OF THE INLET TO THE VICINITY OF WEST BAY HEAD. IT DOES NOT ENTER THE NARROWS, BUT CUTS ACROSS THEIR MOUTH IN THE VICINITY OF TIKORALAK HEAD.

So obvious is it that Hamilton Inlet as above defined belongs to the domain of the sea, that detailed evidence in support of this conclusion need not detain us. This will more clearly appear in a later section. That the arrows and Lake Melville are not arms of the sea seems to me equally certain,

* Personal communication from the Engineer, United States Section, International Boundary Commission, Washington, D.C.

p. 3808

although perhaps less obvious. Confusion is due largely to the fact that salt water flows from the sea arm, Hamilton Inlet, through the Narrows into Lake Melville, and the ocean tides are likewise propagated through the Narrows into the lake. These facts are abundantly established by competent evidence of qualified experts, and we may therefore pass directly to consideration of the question :—
“ Does the presence of salt water and the propagation of the tides in a river or a lake constitute it an arm of the sea ?” To this the physiographer must reply in the negative.

THE PRESENCE OF SALT WATER IN A RIVER OR A LAKE DOES NOT CONSTITUTE IT AN ARM OF THE SEA.

It is the rule in Nature that rivers join the sea with “ accordant junctions.” That is to say, streams do not normally (although they do under certain special conditions) enter the sea by falling over steep cliffs, but rather flow smoothly into the ocean, with the surface of the river, at its mouth, at the same level as the surface of the sea. This means, necessarily, that the bed of the river channel is below sea-level ; and this condition may continue far into the land. Thus the bottom of the channel of the Mississippi River is below sea-level more than 200 miles inland, measured from the mouths of the principal passes on the delta. Now since the salt water of the sea is heavier than the fresh water of rivers, it is obvious that conditions may be favourable for the penetration of salt water into river channels, especially along the bottoms of the channels. If results of researches by F. L. and V. W. Ekman are valid, this tendency of salt water to penetrate river channels, due to difference in specific gravity, is accentuated by the development of “ reaction currents ” which are alone sufficient to carry salt water “ well into the bed of a river.”* But whatever the cause or causes of the phenomenon, it is one of the commonest at river mouths. In the Hudson the salt water penetrates beyond the Highlands, passing through the lake-like expansion of the river known as the Tappan Zee 25 to 40 miles from the sea, and reaching Poughkeepsie 75 miles inland. In the Mississippi River salt water may extend inland 40 to 45 miles under ordinary conditions, and in exceptional circumstances is reported to have been detected more than 100 miles from the sea.
The amount of salt water which enters a river and the distance inland to which it penetrates will depend in considerable part upon the volume of the river water flowing outward. In time of freshets the salt water will be more effectively washed out than when the river discharge is at a minimum. In some streams the percentage of salt water will always be higher than in others, due to differences in size and depth of the river channel, differences in river discharge, and other factors. But in all cases, and at all times, the

* EKMAN, F. L. “ On the General Causes of the Ocean Currents,” Nova Acta Regiae Societatis Scientiarum Upsaliensis, Serie 3, X, 16-37, 1876. EKMAN, V. W. “ Ein Beitrag zur Eklarung und Berechnung des Stromverlaufs an Flussmundungen.” Kongl. Vetenskaps-Akademiens Ford-handlingar, 479-507. 1899.

[1927lab]



Partnered Projects Government and Politics - Table of Contents Site Map Search Heritage Web Site Home