An exception is taken on behalf of the respondent to the jurisdiction of the court in this case, upon two grounds:—
1. Upon the general ground that maritime courts will not entertain suits for wages brought by foreign seamen against foreign masters or owners.
2. Upon the terms of the shipping articles, by which the libellant agreed that if any difference arose between him and the respondent, he would bring no action therefor, except in the courts of Bremen, after the end of the voyage; and that he would appear in the courts of Bremen, and await their sentence, in reference to his services and duties.
In respect to the question raised by the first objection, it is sufficient to say, that the nature and limits of the jurisdiction of admiralty courts of the United States over suits between foreigners have been several times brought under careful consideration in this court. And while I recognize very sufficient reasons why our courts should, in general, decline to take jurisdiction of such controversies, yet I am clear that the power exists, and that the court may hear and determine an action of this description between foreigners, whenever the general interests of justice demand that it should be done. The reasons for this view were fully stated in Davis v. Leslie [Case No. 3,639]. See, also, The Napoleon [Case No. 10,015]; The Infanta [Id. 7,030]; One Hundred and Ninety-Four Shawls [Id. 10,521].
A further question arises, however, upon the effect of that stipulation in the shipping articles which limits the libellant, in case of controversy, to a resort to the courts of Bremen for redress.
Such stipulations in the shipping articles are regarded by the American courts as valid. A contract by which the seaman binds himself not to sue in any case, or not to sue in the proper court, or in the courts of his own country, is not to be supported. But a stipulation in a shipping contract between foreigners, by which the parties bind themselves not to sue except in the courts of their own nation, is lawful and should be sustained. Thompson v. The Catharina [Case No. 13,949]. And I believe it to be the recognized doctrine, as now established in our courts, in respect to suits by foreign seamen for their wages, where the shipping contract contains a provision of this kind, that if the contract remains in force, and the voyage is yet unended, the courts will decline jurisdiction, especially if the suit is not sanctioned by the representatives, diplomatic or commercial, of the nation to ' which such seamen belong. Abb. Shipp. 786, and note; Curt. Merch. Seam. 359, and note.
The English and American tribunals, however, never decline jurisdiction in these cases, when the voyage is broken up, or the seamen discharged, or other emergency has occurred, entitling them clearly to their wages. A leading authority on this point is the case of The Wilhelm Frederick, 1 Hagg. Adm. 138, between which and the case now before me are many points of resemblance. That cause was instituted against the ship by the seamen for their wages. The owners appeared under protest to the jurisdiction, based on the following facts: The owners were subjects of the king of the Netherlands, and the ship was a Dutch ship. Previous to sailing from Amsterdam, the crew had stipulated by the shipping articles that none should have a right to take proceedings at law against the master in foreign ports, but all disputes and complaints against the master should be settled or prosecuted on arrival in their own country. In case the ship while abroad should be sold, or condemned, or the continuation of the voyage be suspended, so as to render it necessary to discharge the crew, the master was to make a settlement with every one upon terms prescribed in the articles, and no one should claim a larger sum; and in case the master should be remiss in the performance of his duty, the injury was to be made good at Amsterdam. On the arrival of the ship at Oowes, she was surveyed; and, in consequence of the damage she had received, was found to be utterly unable to proceed on her voyage, the further prosecution of which was, therefore, abandoned, and the men discharged on a tender of wages and a passage home, which they refused. The owners abandoned the ship to the discretion of the master, who assigned her in trust to pay the wages, and for other purposes. The protest to the jurisdiction was overruled. Lord Stowell says: “The owners had abandoned the ship to the discretion of the captain, who assigns her over to British creditors at Oowes. Here, then, was a disclaimer by the owners of their own articles of agreement; their contract with the seamen was at an end; and I am satisfied that the seamen may, under these circumstances, proceed on the general law to establish their claims.”
On similar grounds, actions by foreign sdh-men for wages have been sustained, notwithstanding such stipulations, by the English common-law courts. In Sigard v. Roberts, 3 Esp. 71, and in Limland v. Stephens, Id. 269, the plaintiffs were under articles which contemplated a settlement of disputes between the master and crew in the courts of their own country only; yet in both these cases the action in the court of king’s bench was sustained, upon the ground, in the first *558■case, that the master had discharged the seamen; and, in the second, that the seaman had received ill treatment from the master, which entitled him to a discharge. This jurisdiction is also sustained by a dictum of Mr. Justice Le Blanc, in Hulle v. Heightman, 4 Esp. 75. But see Gienar v. Meyer, 2 H. Bl. 603.
In the courts of the United States the same course has been followed; and while, in general, our courts will respect and enforce a stipulation between a foreign master and his crew, which limits them to suing in their own country, they have frequently asserted both the power and the willingness to grant relief to a seaman, notwithstanding such an agreement, whenever the interests of justice demand that they should do so. Cases in which the voyage was broken up or ended- in this country, or in which the men were discharged here, have been specified as those in which the courts would most readily enforce the payment of wages due, although, by the strict letter of his contract, the seaman was forbidden to ask their aid. Aertsen v. The Aurora [Case No. 95]. In one respect, indeed, the American courts show a greater favor to seamen, in these cases, than do the courts of Great Britain; for the former proceed, irrespective of any interference on behalf of the seaman by his consul or other national representative, whilst the English courts would seem still to insist that the sanction of such an officer to the action shall be procured, unless the nature of the case forbids. The Wilhelm Frederick, 1 Hagg. Adm. 138; Edw. Adm. Jur. 128.
I am clear that, notwithstanding a stipulation of this sort, the courts of the United States are open for the protection of foreign seamen, left destitute within their jurisdiction, by improper discharge, or by the breaking up of the voyage for any other cause than the wreck of the vessel.
I have never been disposed, however, to entertain jurisdiction in those cases in which the ground upon which the court is asked to disregard the stipulation prohibiting the suit is a deviation of the foreign ship from the voyage contemplated in the articles. Judge Peters has, indeed, intimated that a gross deviation would be a legitimate ground for the interposition of the local courts. Moran v. Baudin [Case No. 9,785]. And see Weiberg v. The St. Oloff [Id. 17,357]. But I have alwaj-s considered questions of deviation to bo fitly referable to the home tribunals. They are best able to determine what tbe obligations and rights of the respective parties may be under the apparent change of the agreement.
I should not, therefore, entertain this action because of the proposed voyage to Madeira, upon which the bark entered, and her deviation thereby from the voyage described in the shipping agreement; and had the point been the right of the libellant to leave the vessel for that cause, I should have referred him to the courts of Bremen for redress.
This is not the case, however. The crew" refused to serve on board, because of the unseaworthiness of the ship. They left upon that allegation, openly, and with the knowledge of the master and consul. This circumstance, also, takes away from their departure the character of a desertion, endeavored to be given to it by the defence. If done unwarrantably, the men may have incurred, under the law maritime, a penalty equivalent to the value of their wages; but the refusal to go to sea in a ship found to be leaking constantly, and which they desired to leave for no other cause, would not amount to a. technical desertion. I think, therefore, that neither the position taken in favor of the libellant that he could rightfully abandon the vessel because of her deviation from the voyage agreed upon, nor that, on the part of the respondent, that the refusal to sail was a desertion, and involved a forfeiture of the right to wages, is maintainable.
The case then turns upon the question, whether the vessel was unseaworthy at the time of the libellant’s refusal to sail in her; and I think it clear upon the evidence that she was. The slight and exceedingly un-." satisfactory examination made by the marine surveyors, on giving their certificate of seaworthiness, even if it could operate to put-the men in the wrong, in case no facts had afterwards been brought out respecting the condition of the vessel, cannot, nor can their formal certificate, avail against the clear and indubitable evidence furnished within a week after that the ship must have been at that time totally unsafe to undertake the voyage she was to enter upon.2 It is alleged that she encountered heavy weather in the short time during which she was out, and was greatly strained in it; yet if the fact were so, the state of the weather would have no connection with the condition of entire rottenness in which her whole body was found on her return. It cannot, upon the proofs, be matter for question, that the ship was not merely unseaworthy in a nautical sense, but was moreover unfit and unsafe for any navigation whatever.
The libellant tool: the risk of making out tlie unseaworthiness of the vessel, in justification of his refusal to remain by her; and having done so completely, under circumstances demonstrating that such was her condition when he asserted it and left her, he is entitled to every advantage that can arise from the clear establishment of that fact afterwards, with the same effect as if it had been brought to light at the time of her sailing. Manifestly one consequence is, that he was released from all obligation or *559duty to go to sea in her. And it follows no less certainly that the voyage being broken up because of the destruction of the ship for rottenness, the libellant is entitled to his wages upon his contract, as upon its full and faithful performance on his part. The stipulation to refer all actions to the Bremen courts, contained in the articles in this Case, relates, by its terms, to an anticipated ending of the voyage at that port. It cannot be accepted as governing the case of an entire breaking up of the voyage in a foreign country, by a sale of the ship, as in this instance, for incapacity to prosecute and complete it. To give that effect to the contract would be not only wrongful and oppressive to the seamen, but would render it deceptive and fraudulent in respect to their rights and remedies, inasmuch as the master would have it in his own power, by disposing of his vessel abroad, to cut them off from all recovery of wages. The master abandons the vessel in this port as worthless, and leaves the libellant to take care of himself;— accordingly he is liable for wages already earned for the necessary support of the li-bellant here, and for means sufficient for his return home. It must be referred to a commissioner to ascertain these amounts, giving the respondent allowances for past -payments, and for the earnings of the libel-lant since he left the vessel.
[NOTE. Courts of admiralty, while not bound to take jurisdiction in matters of controversy between foreigners, will do so where justice requires it. The Sailor’s Bride. Case No. 12.220; The Bee, Id. 1.219; The Havana, Id. 6,226; Thomassen v. Whitwell. Id. 13,928; Davis v. Leslie, Id. 3,639; Mason v. The Blaireau, 2 Cranch C6 U. S.) 240; The Maggie Hammond, 9 Wall. (76 U. S.) 435; Boult v. The Naval Reserve, 5 Fed. 209; Willendson v. The Forsoket, Case No. 17,682; Bernhard v. Green, Id. 1.349; The Belgenland. 9 Fed. 576; The Noddleburn, 30 Fed. 142; Orr v. The Aehsah, Case No. 10,586. Urgent reasons or special circumstances should exist. Fry v. Cook, Id. 5,-13S; The Carolina, 14 Fed. 424; The Monta-pedia. Id. 427; Thomson v. The Nanny, Case No. 13.9S4; The Pacific, Id. 10,644; Graham v. Hoskins. Id. 5.609; The Becherdass Ambaidass, Id. 1.203; One Hundred and Ninety-Four Shawls. Id. 10,521; Saunders v. The Victoria, Id. 12.377; Gonzales v. Minor, Id. 5.530. See Tile El wine Krepiin, Id. 4,426; The Amalia, 3 Fed. 652. As the breaking up of the voyage or the unlawful discharge of the seaman. The Infanta. Case No. 7.030; Lynch v. Crowder, Id. 8.637; Saunders v. The Victoria, Id. 12,377; Thompson v. The Catharina. Id. 13.949; The Napoleon, Id. 10,015; The Lilian M. Vigus, Id. 8,346; Willendson v. The Forsoket, Id. 17.682. And see Davis v. Leslie, Id. 3,639; The Her-máne, Id. 6,409; The Pawashiek, Id. 10,851. Or where the seaman’s contract has been broken by cruel and unwarrantable treatment. Wei-berg v. The St. Oloffi, Id. 17,357. A deviation such as to entitle a seaman to his discharge will justify the interference of admiralty. Moran v. Baudin, Id. 9,785. The remedy, however, should be no greater than the party would have been entitled to in the foreign jurisdiction. The Infanta, Id. 7,030; Thompson v. The Catharina. Id. 13.949. Comity is no reason for declining jurisdiction. The Russia, Id. 12,168; Fry v. Cook, Id. 5,138. And see Thomassen v. Whitwell, Id. 33,928. Having taken jurisdiction, the proceeds should be distributed according to the rights of the parties. Covert v. The Wexford, 3 Fed. 577.]Decree accordingly.
On the effect of a marine survey, see the authorities cited by Smith, arguendo, in The Lucinda Snow [Case No. 8,591],