« AnteriorContinuar »
claimed to be by the State of Mississippi, and that such boundary line has become the true boundary of the States irrespective of the decision of this court in Iowa v. Illinois, supra, followed in Arkansas v. Tennessee, supra. We have examined the constitutions and decisions of the respective States, and find nothing in them to change the conclusions reached by this court in determining the question of boundary between States. A similar contention was made in Arkansas v. Tennessee as to the effect of the Arkansas and Tennessee legislation and decisions, and the contention that the local law and decisions controlled in a case where the interstate boundary was required to be fixed, under circumstances very similar to those here presented, was rejected. In that case the Arkansas cases, which are now insisted upon as authority for the respondent's contention, were fully reviewed. The Mississippi cases called to our attention, of which the leading one seems to be. The Steamboat Magnolia v. Marshall, 39 Mississippi 109, as well as the legislation of the State, seem to sustain the claim that local jurisdiction and right of soil to the middle of the river, is fixed by a line equidistant from the banks. But whatever may be the effect of these decisions upon local rights of property or the administration of the criminal laws of the State, when the question becomes one of fixing the boundary between States separated by a navigable stream, it was specifically held in Iowa v. Illinois, supra, followed in later cases, that the controlling consideration is that which preserves to each State equality in the navigation of the river, and that in such instances the boundary line is the middle of the main navigable channel of the river. In Arkansas v. Tennessee, supra, p. 171, we said:
The rule thus adopted (that declared in Iowa v. Illinois) known as the rule of the "thalweg," has been treated as set at rest by that decision. Louisiana v. Mississippi, 202 U. S. 1, 49; Washington v. Oregon, 211 U. S. 127, 134; 214 U. S. 205, 215. The argument submitted in behalf of the defendant State in the case at bar, including a reference to the notable recent decision of its Supreme Court in State v. Muncie Pulp Co. (1907), 119 Tennessee, 47, has failed to convince us that this rule ought now, after the lapse of twenty-five years, to be departed from.
We are unable to find occasion to depart from this rule because of long acquiescence in enactments and decisions, and the practices of the inhabitants of the disputed territory in recognition of a boundary, which have been given weight in a number of our cases where the true boundary line was difficult to ascertain. (See Arkansas v. Tennessee, supra, and the cases cited at p. 172.)
This record presents a clear case of a change in the course of the river by avulsion, and the applicable rule established in this court, and repeatedly enforced, requires the boundary line to be fixed at the middle of the channel of navigation as it existed just previous to the avulsion. The location and determination of such boundary is a matter which we shall leave in the first instance to a commission of three competent persons to be named by the court upon suggestion of counsel, as was done in Arkansas v. Tennessee. See 247 U. S. 461. This commission will have before it the record in this case, and such further proofs as it may be authorized to receive by an interlocutory decree to be entered in the case. Counsel may prepare and submit the form of such decree.
1 THE PROTON
Judicial Committee of the Privy Council
March 15, 1918
This was an appeal from the judgment of the Supreme Court of Egypt (in Prize), pronouncing the Proton to have belonged at the time of capture and seizure to enemies of the Crown, and condemning her as good and lawful prize.
Lord Sumner, delivering their Lordships' judgment, said that on February 8, 1916, the Proton was condemned in prize. The present appeal was brought by George Kotsovillis, master, and Michael Kouremetis, claiming as owner of the ship. The former only represented the title of Kouremetis, his employer. The Proton was on the Greek register, and flew the Greek flag. There was nothing in the evidence to show that she was not entitled to do so. The ground of condemnation was that she belonged to the German Government. The appellants contended that her flag was conclusive. They relied on Chapter VI of the Declaration of London, which dealt with enemy character, and by Article 57 provided : “Subject to the provisions respecting transfer to another flag" (which did not apply here) "the neutral or enemy character of a vessel is determined by the flag which she is entitled to fly.” It was not necessary to consider whether that provision would in any case apply if the use of the neutral flag were only part of a fraudulent design to defeat belligerent rights.
1 34 The Times Law Reports, 309.
Their Lordships held in The Zamora (32 The Times L. R., 436;  2 A. C. 77) that while the Crown could not by Order in Council prescribe or alter the law to be administered by a court of prize, the court would act on Orders in Council in every case in which they amounted to a mitigation of the Crown's rights in favor of the enemy or neutral, as the case might be. The Declaration of London Order in Council, No. 2, 1914, which declared that the provisions of the Declaration of London should be adopted and put into force, was in force at the material time in this case. Did Article 57 prescribe the law to be administered by a court of prize or did it direct that the rights of the Crown were to be mitigated in favor of a neutral or of the enemy? In their Lordships' opinion, the former was the effect of the article. It declared that a court of prize should determine the character of a vessel alleged to be of enemy character by one single circumstance, the character of the flag which she was entitled to fly, and not by the entire body of relevant circumstances which determined the truth as to that character. That was a positive prescription as to a material part of the law of evidence. Furthermore, the surrender of the rights of the Crown was a thing not to be inferred from doubtful language or from general considerations, especially in a case of fraud and in a matter so grave as the exercise of sovereign belligerent rights. The terms of this article were little adapted to a waiver of His Majesty's rights in favor of others; they clearly purported to prescribe the law on a topic which had been the subject of many decisions. Their Lordships were of opinion that, notwithstanding the Order in Council, it was their duty, sitting in prize, to consider the facts proved in order to ascertain what the character of the Proton really was.
When she was seized on May 16, 1915, she was loading oats at the Turkish port of Kiuluk, having lately arrived from Calymnos. One “Mihail Kromatis” was entered on the ship's papers as a seaman, and was on board purporting to act in that capacity, but he stated to the British officer who searched the vessel that he was really her owner traveling in the vessel to buy goods at one port and sell them at another, and he was now the chief appellant. The ship had left Piræus in ballast on April 22 for Adalia, where he bought eggs, chickens, and bullocks, and he left with them for Samos and Piræus. It was suggested that he was entered in the ship’s papers as a seaman because there was no other capacity in which he could be entered, but that was mere guesswork. He came to Alexandria, presumably in the vessel, but he did not think fit to remain for the trial or to give evidence on oath.
The master, however, gave evidence on his behalf. He swore that on the passage from Adalia, as the weather was rough, some of the bullocks became seasick, whereupon it was decided to land them and the other cargo at the island of Calymnos. That was how the vessel came to be loading at Kiuluk. That story the learned judge did not believe, nor were their Lordships invited to give it credence. It was admitted that the Proton had been taken into Calymnos to pick up and run a cargo of contraband-namely, fuel oil in tins—into the Turkish port of Budrum, only a few hours away on the mainland. That enterprise, however, was forestalled. No doubt that was true .so far as it went, but there was a good deal more in her manæuvres. Calymnos was the birthplace of M. Michael Kouremetis, and the day after his arrival in the Proton there arrived the steamship Vassilefs Constantinos laden with fuel oil consigned to his uncle, who was a tailor. M. Kouremetis promptly boarded her and tried hard, without success, to induce the captain to take the cargo of oil on to Budrum. He then tried to get it transferred to the Proton, but the ship's agent insisted that the oil must be landed. When that had been done the Italian authorities, who were in occupation of the island, declined to let it go again. They suspected an attempt to supply this fuel to the Turks.
Who, then, was M. M. Kouremetis? Of Greek race and a Calymniote born, and therefore an Ottoman subject; for 14 years or more he had been in business as a sponge merchant at Hamburg. He said that he prospered there, but there was evidence that about 1913 he failed in business, having quarrelled with, and become heavily indebted to, his German partner, Herr Emil Stiller. He was then taken into the service of the Deutsche-Tripolitanische Handels-AktienGesellschaft. He further said that, having made a considerable fortune, he realized it at the outbreak of war and quitted Germany for home. On April 15, 1915, he obtained a certificate of Greek nationality and became a subject of the King of the Hellenes, and two days later he bought the Proton for about 160,000 fr. As he was also able about the same time to buy the fuel oil cargo shipped in the Vassilefs Constantinos, and the flour, the corn, and some of the bullocks shipped in the Proton at Adalia, he must have disposed of considerable sums. He said that there were further sums amounting to about 20,000 fr., which he had placed in the hands of two Calymniote merchants, Vouvalis and Manglis, and he claimed to have used a great deal more money than that. There was, however, evidence to the contrary given by persons competent to speak of the facts. The brother of the appellant, P. Kouremetis, could not say whether he was a poor man or a millionaire, but Aristotelis Manglis, a merchant of Calymnos, swore that Michael Kouremetis came home from Germany in the autumn of 1914 practically penniless, and in April, 1915, was well provided with funds, and he appeared to be quite innocent of any knowledge that he held 10,500 fr. on deposit from M. Michael Kouremetis. Nicholas Vouvalis, too, was equally unaware of the deposit alleged to have been made with him. According to Dimitri Michael Maroulakis, of Calymnos, M. Michael Kouremetis told him that he was supplied with funds from the Turkish and German Embassies, had paid 24,000 fr. to the Mutessarif of Adalia (which seemed a large sum for mere baksheesh on the shipment of flour and bullocks), and was in the habit of frequently calling at the Germany Embassy in Athens.
All these facts were deposed to in affidavits, or, in the case of Vouvalis, were stated in a letter, which, as it appeared without objection in the record, their Lordships took to have been admitted in evidence by consent. It was true that the affidavits contained many other statements which were not evidence and were not trustworthy. They revelled in rumors, they abounded in hearsay, they contained many exaggerations and some extravagancies, and after all they were affidavits. Still, the learned judge was vigilantly on his guard against such parts of them as were inadmissible; he was well qualified to appraise them at their true value, and in the result he accepted them. On the other hand, the appellant gave no evidence on oath. A letter which he wrote to the Minister for Foreign Affairs of the Hellenic Government was allowed to be read in evidence, and probably would have been of no greater weight if formally attested, but the learned judge did not believe it. Numerous and precise statements were to be found in it as to the appellant's ample means, every one of which could have been readily and cogently