the court, through Judge NELSON, saying that "the effect of the proof of usage as given in this case, if sanctioned, would be to overturn the whole law on the subject of bills of exchange in the city of New York." The doctrine is adhered to in Bowen v. Newell, 8 N. Y. l!J4. The case presented is this: In a written agreement, parties have used a term which is unambiguous, and which has an accept,ed signification, both in commercial and judicial language. Proolof usage is sought to be introduced to show that in the very respect in which this term had its ongin and has had its world-wide employment, it has a local mel\ning repugnant to its settled sense. To permit this would be to introduce ambiguity where none exists, and defeat the clearly-expressed intent of a written contract. There must be judgment for the libelant upon the answer of the defendants.
. FRY V. COOK
(District Uourt, D.
1. ARREST IN ADMIRALTY.
The limitation in the statutes of the United States and the rules of the supreme court, allowing arrests in civil by virtue of a process from a court of the United States only in cases in which an arrest is authorized by the laws of the state..in which such court was sitting, applies to admiralty as well as to common-law processes
In the absence of showing cruelty or great llardship, the ad· miralty courts of the united States cannot be required or allow themselves to entertain jurisdiction of a case where subjects of a foreign government invoke their assistance against a merchant vessel of a foreign government.
R. H. Sh!lnnon, for libelant. Edward M. Hudson and J. Walker Pearn, for respondents.
BILLINGS, D. J. This is an action brought to recover damages for assault and battery, alleged to have been committed on the high seas. An order of arrest was at first issued, which, on argument, was vacated, on the grounds that the statutes of the United States and the rules of the supreme court allowed an arrest by virtue of a process from a court of the United States only in cases in which an arrest is authorized by the laws of the state in which such court was sit-
.Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
ting; that this limitation applied to admirality as well as law processes; and that according to the laws of the state of Louisi. ana the body of a non-resident could not be taken on any mesne process unless he was an absconding debtor. The case is now before me on an exception to the exercise of juris. diction on the part of this court. I have directed'iestimony to be taken summarily before the commissioner on the merits, so that all the facts are before me. The question is, ought this court, from a regard to the commerce of a friendly government, to refrain from granting relief? It'appears that the libelant is a forl!jigner, and a sea· man on a British vessel, upon which the beating is alleged to have been inflicted, he having shipped in Liverpool for the round voyage' to this country and back, and upon that voyage having at the port of New Orleans; that the defendants are all British sub. jeets. The British consul resident at this port, having been notified,:· came before me and, in behalf. of his government, remonstrated against this court taking cognizance of the cause. Independently of the considerations which arise from the national. ity of the parties and vessel, the weight of evidence is against the libelant. But, as these considerations have been so fully and ably presented, I will avail myself of the aid which the proctors have reno dered, and state my conclusion n.s to the duty of courts in exer· cising or withholding jurisdiction in such cases. It is undoubtedly true, as a general proposition, that au action for a personn.l tort follows the person, and may be brought in any foreign court. It is also true that the courts of a nation are established and maintained for the convenience of its own citizens or subjects, and if foreigners are permitted to become actors therein, it is because of what is termed comity between nations. American Law Review, vol. 7, p 417, and Dan£el Webster's Works, (Everett's Edition) vol. 6, pp. 117, 118. The only ground upon which a foreigner could urge a claim to become a libelant in our courts would be that it was by comity due his government that its subjects should be thus heard, and, so far as this claim could be considered as a right, it could be insisted on only by that government, and, except in cases of inhumanity or gross in· justice, would disappear whenever the claimant's government took a position against it. There is in this case no circumstance such as t,he unwarranted termination of the voyage, the discharge of 110 seaman, brutality, which might possibly cunstitute 110 proper ground for the interposition of the jurisdiction of a foreign court without the request of the representa-
tive of libelant's government. It'is a suit brought by IJ.fol'eigner springing out of a voyage on the ship ofa friendly nation, in the midst of that voyage; against the subjects of that nation; on account of alleged grievances. The libelant not only proposes to disconnect himself from the ship, but asks the detention of ship, officers, and crew in a foreign port, in order to settle a dispute which can far better be settled by the tribunals of the country in which, under whose laws, and in connection with whose commerce, he made his contract, and to which he agreed to return. The representative of that country asks this court not to interfere. It is urged, and that fairly, that by the very agreement of the parties-the articles of shipping-the courts of the kingdom of Great Britain have been made the forum for the settletrent of this dispute; that they afford adeqnate redress; and that for courts to entertain this and similar suits during a voyage which the parties had agreed to make at intermediate points at which the vessel might touch, would impose delays which might seriously and uselessly embarrass the commerce of a friendly power. The exercise of jurisdiction in such a case is discretionary, and, until the congress of 'the United States controls the subject by legislation, is discretionary with its courts, and should be controlled by precedent if that exist. In this case I am satisfied, by reason and abundant authority, that the court should decline to :entertain jurisdiction. Gienar v. Meyer, 2 H.. Bl. 603; The Gol'ubchick, 1 W. Rob. 143; Gonzales v. Minor, 2 Wall. Jr., 348; The Becherdass Ambaidas8, 1 Low. 569; The Maggie Hammond, 9 WalJ. 485; nne Hundred and Ninety jour Shawls, Abb. Adm. 317; Gardner v. Thomas, 14 Johns. 134; Johnson v. Dalton, 1 Cow. 543; and the very able articles on "suits -between aliens in the courts of. the United States," (7 Amer. Law TIev. 417,) from which a reference to many of the above cases was derived. Let the libel be dismissed. Let the suit of the same libelant' against the British bark Carolina., .for the same reasons, be dismissed.
The Mont'!';fedia, post, 427.
. '!rUE llONTAl1EDIA.
(;Di8trict (Jourt, E. D. Loui8iana. Novell\ber, 1882.)
MERCHANT SHIPPING ACT-REV. ST.
H 4501-4512. The stlttute of June 7,1872, (17 St. at Large, p. 262; Rev. St. H 4501 to 4512,) does not apply to a British vessel.
In the absence of circumstances showing cruelty or great hardship the admiraHy courts of tlui United States cannot be required or allow themselves to entertain jurisdiction of a cascwhere sUbjeets.of a foreign government invoke a merchltnt yessel of fox:eign government. their assistance The Carolina, (decided April, 1876, ante, 424,) followed.
In Admiralty. O. B. Sansum·and J. B. White, for libelants. J. R. Beckwith and J. WaZker Fear1/-, forcll1imants. BILLINGS, D.J. This is a suit instituted by subjects of the em· pire of China againet a British vessel. They were. shipped at·a port within the United States. namely, at San Francisco, for a voyage which was to occupy three years,ll.nd were to be discllarged at Hong Kong. The whole question is, does the statute of June 7, 1872, (17 St. 262; Rev. St. at variouslleciions from section 4501-4512,) apply to a British vessel? The copclusion which I· have reached is that it does not. The act of June 7, 1872,is, in the provisions which relate to. the shipping of seamen, a literal copy of the "Merchant Shipping Act," enacted by the pariiament of Great Britain in the year 1854. In section 160 of the act of the parliament of Great Britain' (11 & 18 Viet. c. 104:;· Digest-of St/).tutes relating to Merchant Shipping, 102) it is enacted that British ships 'Yhich engage seamen at any .place out of her majesty's dominions enter into the engage· ment with the sanction of the British consular officers, and accord· ing to that act of parliament. In section 15. of the act of the congress of the United. States. (17 St. at ;Large, 265) it is enacted totidem verbis that merchant ships of the United States who engage seamen at any place out of the United States shall enter into the ment with the sanction of the officers of the United States, and accordingto i thJ1t ;act' q(,congresS. .Such an adoption on the part of the United States, in the year 1872, of a statute of Great Britain passed in the year 1854-such a coincidence in the legislation of the two nations-furnishes a guide to the courts of each in the construction of these statutes equivalent to a treaty stipulation; for it cannot be supposed that our government would copy the stat-lUlported by Joseph P. Hornor,' Esq·· of the New Orleans bar.