The only question is, whether the Court below ought to have exercised jurisdiction in this case.
The Marine Court are authorized, by statute, to hear, try and determine all actions for assault and battery committed by the master or commander of any ship or vessel in any merchant service, upon any officer, seaman or mariner on thp high seas. (2 R. L. 382.) • This power is not limited to cases arising where the vessel and parties are citizens' of this country; for, by the law of nations, the Courts of the country to which the vessel belongs have not exclusive jurisdiction. Our Courts may take cognizance of torts committed on the high seas on board a foreign vessel, where both parties are foreigners ; but on principles of comity, as well as to prevent the frequent and serious injuries that would result, they have exercised a sound discretion, in entertaining jurisdiction or not, according to circumstances, The manifest inconvenience of allowing seamen, at an intermediate port, and before the voyage was ended, to harrass the master by suits, has induced our Courts to decline interference in ordinary cases, and leave the parties to seek redress in the Courts of their own country. (Gardner v. Thomas, 14 John. 134.) ’ In that casé, it appeared that both parties were British subjects on boa,rd a British ves*549sel. A seaman sued the master for an assault—this Court refused to -allow the Justices’ Court of the city of New-York to take cognizance- of the cause. In the opinion delivered, stress seems to be laid on the fact, that, for aught which appeared, the parties intended?to return to their own country, at the completion of the voyage. It is contended, .that the present case is distinguishable ; that the contract of the master, allowing the men to leave the ship at New-YorJc, was valid. '
If this point can be established, I apprehend there can be no well founded objection against the exercise of jurisdiction. If the plaintiff was legally discharged from the vessel, the principle, which declines jurisdiction, ought not to be carried so far as to compel the plaintiff to return with his witnesses to England, to obtain redress for the assault committed. It is undoubtedly true, that where a crew has been shipped for a voyage, and articles executed, fixing the rate of wages, the written agreement, made at the port of -departure, is the only legal evidence of the contract, and a mariner can recover nothing but what is specified therein. (Bartlet v. Wyman, 14 John. 262. 1 Com. on Con. 369. 5 Esp. Rep. 85. Peak. N. P. Rep. 72. 2 B. & P. 116.) It is supposed by the argument, that this doctrine renders every contract made by the master with the crew invalid, and, consequently, that the agreement to permit them to leave the ship at New-York, was not obligatory. The general policy of the law seems not to countenance new contracts made on the voyage, or at intermediate ports, between the master and seaman, variant from the shipping articles signed at the port of departure. If, however, it be admitted that the plaintiff could not rightfully quit the ship, on her arrival at New-York, by virtue of the agreement set up, •a question still remains, whether the plaintiff did not quit by the express permission of the defendant at New-York; and if not, whether his not objecting, when fully apprised of the intention to depart, does not present a case where the plaintiff, acting under a mistaken view of his rights, to which the defendant contributed, is entitled, consistently with sound policy, national courtsey, and entire respect for foreign com*550merce, to ask for redress in our Courts ? - The evidence is very strong that the defendant directed the plaintiff to leave the ship : there is no .evidence that he expressly prohibited |t. jjjs conduct, on the whole, was such as might well warrant the plaintiff in believing the defendant did not wish to • retain him. When the plaintiff returned to the vessel, a day or two afterwards, to obtain an order for his wages, the defendant ordered him to go out of the ship, and said he did not belong to her. These facts are proved by competent witnesses, and cannot be disregarded. Without, therefore, in the least, impairing the doctrine in Gardner v. Thomas, . as establishing the general rule, it seems to me that this case, forms an exception, in which it is proper to entertain jurisdiction. If the plaintiff had not a right to demand his discharge, he became entitled to sue in our Courts for the assault, after the defendant had manifested no objection to his departure, and particularly after declaring he did not belong to the ship. Under such circumstances, to send the plaintiff to a foreign tribunal, would be a denial of justice. I am therefore of opinion, that the judgment of the Court below be affirmed.
Judgment affirmed*