United States v. Maine
475 U.S. 89 (1986)

Annotate this Case

U.S. Supreme Court

United States v. Maine, 475 U.S. 89 (1986)

United States v. Maine

No. 35, Orig.

Argued December 12, 1985

Decided February 25, 1986

475 U.S. 89



This case, which was instituted by the United States to quiet title to the seabed along the coast of the Atlantic Ocean, presents the question whether Nantucket Sound qualifies as "internal waters" of Massachusetts rather than partly territorial sea and partly high seas as the United States contends. Massachusetts has excepted to the portion of the Special Master's report that concludes that Nantucket Sound is not a part of Massachusetts' inland waters under the doctrine of "ancient title." Massachusetts contends that, under such doctrine, the English Crown acquired title to Nantucket Sound as a result of discovery and occupation by colonists in the early 17th century, and that Massachusetts has succeeded to the Crown's title.

Held: Massachusetts cannot prevail under the doctrine of "ancient title." Pp. 475 U. S. 93-105.

(a) Principles of international law have been followed consistently in fixing the United States' coastline. Massachusetts contends that the doctrine of "ancient title" is a sufficient basis for identifying a "historic bay," under Article 7(6) of the Convention on the Territorial Sea and Contiguous Zone, so as to constitute "internal waters" of the sovereign. To claim "ancient title" to waters that would otherwise constitute high seas or territorial sea, a sovereign must base its title on "occupation," that is, a title based on "clear original title" which is fortified "by long usage." The parties agree that effective "occupation" must have taken place before the freedom of the seas became a part of international law -- no later than the latter half of the 18th century. Pp. 475 U. S. 93-96.

(b) The pertinent exhibits and transcripts show that Massachusetts did not effectively "occupy" Nantucket Sound so as to obtain "clear original title" and fortify that title "by long usage" before the seas were recognized to be free. For purposes of the "ancient title" doctrine, "occupation" requires, at a minimum, the existence of acts, attributable to the sovereign, manifesting an assertion of exclusive authority over the waters claimed. The historical evidence introduced by Massachusetts does not show occupation by the colonists of Nantucket Sound as a whole. Massachusetts' evidence of occupation is also deficient because it does not warrant a finding that the colonists asserted any exclusive right to the waters. Moreover, Massachusetts has not established any linkage between the colonists' activities and the English Crown. Thus, Great

Page 475 U. S. 90

Britain did not obtain title which could devolve upon Massachusetts. Pp. 475 U. S. 97-103.

(c) The determination that Massachusetts had not established clear title prior to freedom of the seas is corroborated by its consistent failure to assert dominion over Nantucket Sound since that time. Rather, during the 18th and 19th centuries Massachusetts continued to treat Nantucket Sound in a manner inconsistent with its recent characterization of that body as internal waters. Pp. 475 U. S. 103-105. Exception overruled.

STEVENS, J., delivered the opinion of the Court, in which all other Members joined, except MARSHALL, J., who took no part in the consideration or decision of the case.

JUSTICE STEVENS delivered the opinion of the Court.

The question now before the Court is whether Nantucket Sound qualifies as "internal waters" of the Commonwealth of Massachusetts, rather than partly territorial sea and partly high seas as the United States contends. We agree with the Special Master's conclusion that the Commonwealth's claim should be rejected.


Pursuant to an earlier decree of this Court, [Footnote 1] the United States and Massachusetts in 1977 filed a joint motion for supplemental

Page 475 U. S. 91

proceedings to determine the location of the Massachusetts coastline. After our appointment of a Special Master, 433 U.S. 917 (1977), the parties agreed on a partial settlement, which we approved in 1981. 452 U. S. 429. Left unresolved was the status of Vineyard Sound and Nantucket Sound, a dispute which gave rise to extensive hearings before the Special Master. The Master concluded that Vineyard Sound is a "historic bay," and therefore a part of the inland waters of Massachusetts. However, he reached a contrary conclusion concerning Nantucket Sound. Explaining that the decision concerning Vineyard Sound has only minimal practical significance, [Footnote 2] the United States has taken no exception to the Master's report. Massachusetts, however, has excepted to that part of the report concerning Nantucket Sound. Specifically, although Massachusetts acquiesces in the determination that the doctrine of "historic title" does not support its claim, it continues to maintain that it has "ancient title" to Nantucket Sound.

Nantucket Sound is a relatively shallow body of water south of Cape Cod, northeast of the island of Martha's Vineyard, and northwest of the island of Nantucket. Massachusetts contends that the English Crown acquired title to this territory as a result of discovery and occupation by colonists in the early 17th century, and that it succeeded to the Crown's title by virtue of various Royal Charters or by the Treaty of Paris, which ended the Revolutionary War. [Footnote 3]

Page 475 U. S. 92

To prove that Great Britain acquired title to Nantucket Sound which it could pass to Massachusetts, much of the evidence presented to the Special Master concerned whether Nantucket Sound would have been considered "county waters" under English law in the 17th century. Under the "county waters" doctrine, waters "inter fauces terrae" or landward of an opening "between the jaws of the land" could be subject to the jurisdiction of the littoral county rather than the Admiral if the jaws were close enough to each other to satisfy a somewhat ambiguous line-of-sight test. Under Lord Coke's version of the test, a person standing on one jaw must be able to "see what is done" on the other jaw; [Footnote 4] under Lord Hale's more expansive version, it is merely necessary that "a man may reasonably discern between shore and shore." [Footnote 5]

Page 475 U. S. 93

The relevant jaws of land in this case are the southern tip of Monomoy Island, which extends south from the elbow of Cape Cod, and the northern tip of Nantucket Island. At the present time, those two jaws are 9.2 nautical miles apart, but the distance may have been greater in colonial times. In any event, the parties agree that the distance was too great to satisfy Lord Coke's version of the test. Whether it would meet Lord Hale's test depends, in the opinion of the Master, on whether the Commonwealth's burden of proof is merely to persuade by a preponderance of the evidence or by evidence that is "clear beyond doubt." For purposes of our decision, we put to one side the parties' argument about the burden, and assume that Lord Hale's test is satisfied. [Footnote 6] On the assumption that Nantucket Sound could have been considered "county waters" under the common law of England in the 17th century, we nevertheless conclude that Massachusetts cannot prevail under the doctrine of "ancient title" on which it relies.


This Court has consistently followed principles of international law in fixing the coastline of the United States. [Footnote 7] We

Page 475 U. S. 94

have relied in particular on the Convention on the Territorial Sea and Contiguous Zone, [1958] 15 U.S.T. 1607, T.I.A.S. No. 5639. [Footnote 8] The Convention provides that the sovereignty of a state extends to "internal waters." Art. 1. The Convention also contains a set of rules delimiting those waters. Generally speaking, Article 5(1) defines "internal waters" as those waters landward of a baseline which Article 3 in turn defines as "the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State." Of importance to this case, the Convention also includes as a state's "internal waters" those waters enclosed in "bays" as defined in Article 7. Most of the rules in this Article identify the criteria for defining "juridical bays," but Article 7(6) further includes as "bays" "so-called historic' bays" and waters landward of baselines marked when "the straight baseline system provided for in Article 4 is applied."

In this case, Massachusetts relies exclusively on the provision recognizing "historic bays," for it is agreed both that the United States has legitimately eschewed the straight baseline method for determining its boundaries, [Footnote 9] and that Nantucket Sound does not qualify as a juridical bay. Because "historic bay" is not defined in the Convention, we have previously relied on a United Nations study authored by the U.N. Secretariat and entitled Juridical Regime of Historic Waters, Including Historical Bays, [1962] 2 Y.B.Int'l L.Comm'n 1, U. N. Doc. A/CN.4/143 (1962) (hereinafter Juridical Regime). See United States v. Louisiana (Alabama and

Page 475 U. S. 95

Mississippi Boundary Case),470 U. S. 93, 470 U. S. 101-102 (1985). That study prescribes the three factors of dominion, continuity, and international acquiescence recognized in our own cases for identifying a "historic bay." [Footnote 10] The Commonwealth submits that the three-part test is actually the standard for finding "historic title," and that a different doctrine -- the doctrine of "ancient title" -- is also a sufficient basis for identifying a "historic bay" under Article 7(6) of the Convention. According to Massachusetts, "historic title" is the maritime counterpart of title acquired by adverse possession. It is prescriptive in character, because it arises as a result of a state's exercise of dominion over water that would otherwise constitute either high seas or territorial sea, in which all ships enjoy the right of innocent passage. Before this Court, Massachusetts no longer claims "historic title" as it uses the term. Brief for Defendant Massachusetts 4; Reply Brief for Defendant Massachusetts 22.

The Commonwealth instead relies entirely on a claim of "ancient title." This is the first case in which we have been

Page 475 U. S. 96

asked to evaluate such a claim to coastal waters. According to the Juridical Regime, an "ancient title" is based on a state's discovery and occupation of territory unclaimed by any other sovereign when it was first acquired. To claim "ancient title" to waters that would otherwise constitute high seas or territorial sea, a state must

"affir[m] that the occupation took place before the freedom of the high seas became part of international law. In that case, the State would claim acquisition of the area by an occupation which took place long ago. Strictly speaking, the State would, however, not assert a historic title, but rather an ancient title based on occupation as an original mode of acquisition of territory. The difference may be subtle, but should, in the interest of clarity, not be overlooked: to base the title on occupation is to base it on a clear original title which is fortified by long usage."

Juridical Regime, at 12 (

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