[Steamboat Orleans v Phœbus.]

has been part of the United States. This rests on the principle of ordinary attachment laws; and it is eonvenient. Every boat has a principal agent at New Orleans to procure freights, of course--the owners are scattered from Pittsburg to New Orleans, as in this case. The boat hands cannot sue them so well as by libel at New Orleans, where the boat certainly is detained-and not elsewhere is she certainly detained.

The question to be decided in advance is, can in any case, the boat's crew enforce the law of lien of Louisiana? If they can, then for the sake of the principle, we wish not to be forestalled by the supposed facts of the present cause. These have not been debated, and are certainly, to an extent, for the libellant.

A part owner may enforce his rights in the admiralty. Brown's Civil Law, 131, 2; 2 Peters' Admiralty Rep. 290, 1. He is a tenant in common, and part owner, just as the boatrights were part owners in case of the Planter; 7 Peters' Rep. 324.

So he who has wages due, is part owner, just as the boat-builders were. In case of the Planter, neither the nature of the vessel, nor the nature of the service performed, gave jurisdiction; it was by reason alone of the boat being in tide water, that the lien created by the local laws was enforced. If the cases are not analogous, it is difficult to distinguish them.

The local law of lien applicable to the cause, will be found in the civil code of practice of Louisiana; 104 S.

It includes the master and all others navigating vessels, or water craft navigating and trading to New Orleans. And when the lien is fixed, the right to seize and sell is expressly given. The main question in this cause being settled for the libellant, puts all the incidents to rest: so if it be adjudged to rest upon the general maritime law, the cause is unon the whole of the incidental points for the defendants.

Mr. Justice STORY delivered the opinion of the Court.

ana.

This is an appeal from the district court of the district of LouisiThomas Phoebus, who is the owner of one-sixth part of the steamboat Orleans, filed a libel on the admiralty side of that court against Forsyth and others, who are the owners of the other fivesixths parts of the same steamboat; alleging himself to be a part owner and master of the steamboat, and that he had been dispossessed by the other owners, who were navigating, trading with, and

[Steamboat Orleans v. Phœbus.]

using the boat contrary to his wishes; that he wished to have an amicable sale of the boat, but the other owners refused, and were about to send her up the Mississippi on another trip, against his wishes; that the boat then lay at New Orleans, within the ebb and flow of the tide, and within the admiralty jurisdiction of the court: therefore he prayed admiralty process against the boat, and that the boat might be sold, and one-sixth part of the proceeds be paid to him; and that the other partners might account to him for the earnings of the boat to the day of the sale.

The appellants, (the claimants and owners of the five-sixths) appeared, and in their answer admitted the title of the libellant to the one-sixth part. But they denied the jurisdiction of the court, alleging that the boat did not navigate waters where the tide ebbs and flows; but that she navigated only between New Orleans and the interior towns on the Mississippi river, and its tributary waters. They further alleged, that she was not a maritime boat, and was never intended to navigate the high seas. They further answered; and in case their objection to the jurisdiction should be overruled, they alleged certain matters to the merits, upon which it is unnecessary to dwell, as our present judgment will be confined exclusively to the questions of jurisdiction.

It seems, that, subsequently, a libel was filed against the same boat by one of her crew, for wages. In that suit Phoebus also filed a claim for wages as master, and for necessaries advanced by him for the boat, while he acted as master. These charges were by the agreement of the partics allowed to be transferred to the present suit; and of course were to be treated as if they had been alleged in the original libel.

It may be here proper to state that it is very irregular and against the known principles of courts of admiralty to allow in a libel, in rem, and, quasi, for possession, (as the present libel assumes in some sort to be) the introduction of any other matters of an entirely different character; such as an account of the vessel's earnings, or the claim of the part owner for his wages and advances as master. In the first place the admiralty has no jurisdiction at all in matters of account between part owners. In the next place the master, even in case of maritime services, has no lien upon the vessel for the payment of them. So that, in both respects, these matters belong ad alium examen.

But to return to the question of jurisdiction; there is no doubt

[Steamboat Orleans v. Phœbus.]

that the boat was employed exclusively in trade and navigation upon the waters of the Mississippi, and its tributary streams; and that she was not employed or intended to be employed in navigation and trade on the sea, or on tide waters. And the wages of the master, and the advances made by him, for which he now claims recompense out of the proceeds of the steamboat, are on account of voyages made on such interior waters. Under these circumstances the question arises, whether the district court had jurisdiction, as a court of admiralty, to entertain either the original libel, or the claims in the supplementary proceedings. We shall shortly give our opinions on both points.

And in the first place, in respect to the original libel. The jurisdiction of courts of admiralty in cases of part owners, having unequal interests and shares, is not, and never has been applied to direct a sale, upon any dispute between them as to the trade and navigation of a ship engaged in maritime voyages, properly so called. The majority of the owners have a right to employ the ship in such voyages as they may please; giving a stipulation to the dissenting owners for the safe return of the ship; if the latter, upon a proper libel filed in the admiralty, require it. And the minority of the owners may employ the ship in the like manner, if the majority decline to employ her at all. So the law is laid down in Lord Tenterden's excellent Treatise on Shipping. Abbot on Ship. part 1, chap. 3, sec. 4 to sec. 7. If, therefore, this were a vessel engaged in maritime navigation, the libel for a sale could not be maintained.

But the case is that one of a steamboat engaged in maritime trade or navigation. Though in her voyages she may have touched at one terminus of them, in tide waters, her employment has been, substantially, on other waters. The admiralty has not any jurisdiction over vessels employed on such voyages, in cases of disputes between part owners. The true test of its jurisdiction in all cases of this sort is, whether the vessel be engaged, substantially, in maritime navigation; or in interior navigation and trade, not on tide waters. In the latter case there is no jurisdiction. So that, in this view, the district court had no jurisdiction over the steamboat involved in the present controversy; as she was wholly engaged in voyages on such interior waters.

Secondly; in respect to the wages and advances claimed by the libellant. They are for services not maritime, and for disbursements not maritime. Under such circumstances the admiralty has no ju

[Steamboat Orleans v. Phœnix.]

risdiction; for its jurisdiction is limited in matters of contract, to those, and those only, which are maritime. This was expressly decided by this Court in the case of the steamboat Jefferson; 10 Wheat. R. 429; which, substantially, on this point, decides the present case.

There is another ground equally fatal to the claim of the master for wages, which has been already alluded to. By the maritime law the master has no lien on the ship even for maritime wages. A fortiori, the claim would be inadmissible for services on voyages. not maritime.

But it is said that the law of Louisiana creates a lien in favour of the master of a vessel engaged in voyages like the present: and if so, it may, upon the principles recognised by this Court, in Peyroux v. Howard, &c., 7 Peters R. 343, be enforced in the admiralty. That decision does not authorize any such conclusion. In that case the repairs of the vessel for which the state laws created a lien, were made at New Orleans, on tide waters. The contract was treated as a maritime contract; and the lien under the state laws was enforced in the admiralty, upon the ground that the court, under such circumstances, had jurisdiction of the contract as maritime; and then the lien, being attached to it, might be enforced according to the mode of administering remedies in the admiralty. The local laws can never confer jurisdiction on the courts of the United States. They can only furnish rules to ascertain the rights of parties; and thus assist in the administration of the proper remedies, where the jurisdiction is vested by the laws of the United States.

In this view of the point of jurisdiction, we do not think it necessary to decide whether by the local law of Louisiana, the master had a lien on the steamboat for his wages or not: nor, whether, if such a lien existed by that law, it could be applied to any steamboats not belonging to citizens of that state, for services not rendered in that state.

Upon the whole, our judgment is, that the district court had no jurisdiction of the libel or its incidents; and, therefore, that the decree of the district court must, upon this ground, be reversed, and a mandate awarded to the district court to dismiss the suit, for want of jurisdiction.

BURGESS POOLE AND OTHERS, PLAINTIFFS IN ERROR V. THE LESSEE OF JOHN FLEEGER AND OTHERS.

The plaintiffs in the circuit court of West Tennessee, instituted an ejectment for a tract of land held under a Virginia military land warrant, situate south of a line called Mathews' line, and south of Walker's line, the latter being the established boundary between the states of Kentucky and Tennessee, as fixed by a compact between these states, made in 1820; by which compact, although the jurisdiction over the territory to the south of Walker's line was acknowledged to belong to Tennessee, the titles to lands held under Virginia military land warrants, &c., and grants from Kentucky, as far south as "Mathews' line," were declared to be confirmed; the state of Kentucky having, before the compact, claimed the right to the soil as well as the jurisdiction over the territory, and having granted lands in the same. The compact of 1820, was confirmed by congress. The defendants in the ejectment claimed the lands under titles emanating from the state of North Carolina in 1786, 1794, 1795, before the formation of the state of Tennessee, and grants from the state of Tennessee in 1809, 1811, 1812, 1814, in which the lands claimed by the defendants were situated, according to the boundary of the state of Tennessee, declared and established at the time the state of Tennessee became one of the states of the United States. The circuit court instructed the jury, that the state of Tennessee, by sanctioning the compact, admitted in the most solemn form that the lands in dispute were not within her jurisdiction, nor within the jurisdiction of North Carolina, at the time they were granted; and that consequently the titles are subject to the compact. Held, that the instructions of the circuit court were entirely correct.

It is a part of the general right of sovereignty, belonging to independent nations, to establish and fix the disputed boundaries between their respective limits; and the boundaries so established and fixed by compact between nations, become conclusive upon all the subjects and citizens thereof, and bind their rights; and are to be treated, to all intents and purposes, as the real boundaries. This right is expressly recognised to exist in the states of the Union, by the constitution of the United States; and is guarded in its exercise by a single limitation or restriction. only, requiring the consent of congress.

The grants under which the defendants in the circuit court claimed to hold the land were not rightfully made, because they were originally beyond the territorial boundary of North Carolina and Tennessee; this is, by necessary implication, admitted by the compact between the states of Kentucky and Tennessee.

In the ordinary course of things, on the trial of a cause, before a jurý, if an objection is made and overruled as to the admission of evidence, and the party does not take any exception, he is understood to waive it. The exception need not indeed then be put in form, or written out at large and signed; but it is sufficient if it is taken, and the right reserved to put it in form, within the time prescribed by the practice or the rules of the court.

Where a will, devising lands, made in one state is registered in another state in which the lands lie, the registration has relation backwards; and it is wholly immaterial whether the same was made before or after the commencement of a suit.

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