
    HOOE AND CO. v. GROVERMAN.
    Error from the circuit court of the district of Columbia, in an action of covenant by Groverman, owner of the brig Nancy, against Hooe and co. the freighters, for demurrage, at the port of Falmouth, in England, from the 19th of June to the 11th of September, 1798, at the rate of £.6 6 0 Sterling per diem.
    The declaration alleged the breach of the covenant in not paying the demurrage, and the cause went to trial in the court below, upon the issue of covenants performed. The jury found the following special verdict, viz.
    “ We, of the jury, find that the defendants and plain- “ tiff made and executed the charter-party hereunto an- “ nexed, in these words, to wit: “ This charter-party “ indented,” &c. “ witnesseth that the said Groverman “ hath granted, and to freight letten to the said R. T. “ Hooe and company the brig, whereof he is owner, “ called the Nancy, commanded by James Davidson, a “ citizen of the United States aforesaid, now lying in “ the port of Alexandria, of the burthen of 197 tons or “ thereabouts; and for and in consideration of the cove- “ nants herein after mentioned, doth grant, and to freight “ let unto the said R.T. Hooe and co. the whole tonnage of “ the aforesaid vessel, called the Nancy, from the port of “ Alexandria in Virginia, to the port of Havre de Grace “ in France, and back to the said port of Alexandria; “ in a voyage to be made by the said R. T. Hooe and co. with “ the said brigantine, in manner after mentioned, that is “ to say; to sail, with the first fair wind and weather “ that shall happen after she is fully and completely laden, “ from the said port of Alexandria, with a cargo of to- “ bacco, to be shipped by the said R. T. Hooe and co. “ to the said port of Havre de Grace; and there deliver “ said cargo to Messrs. Andrews and co. of that town, “merchants, or to their assigns, in good order, the dan- “ ger of the seas only excepted. And at the said port of “ Havre de Grace to take on board a full freight or lading “ of such goods as the said Andrews and co. may think “ proper to put on board said brig, as a return caro; “ with which said vessel is to make the best of her way “ directly back to the port of Alexandria, and there safe- “ ly deliver such cargo, the danger of the seas only ex- “ cepted, to the said R. T. Hooe and co. And the said “ Groverman doth further covenant and agree to and with “ the said R. T. Hooe and co. their executors, &c. that “ the said brig now is, and at all times during the said “ voyage shall be, to the best endeavours of him the said “ Groverman, and at his own proper cost and charges, in " all things made and kept tight, stiff, staunch, strong, " and well apparelled, furnished and well provided, as “ well with men and mariners sufficient and able to sail, “ guide and govern the said vessel, as with all manner of “ rigging, boats, tackle and apparel, furniture, provi- “ sions and appurtenances fitting and necessary for the “ voyage aforesaid. And the said Groverman doth further “ covenant and agree to and with the said R. T. Hooe " and co. that he will allow them twenty-five running “ days from the date hereof for the lading on board the “ said vessel, the aforesaid cargo of tobacco at the port of “ Alexandria; ten working days for discharging said car- “ go at the port of Havre de Grace, to be computed from “ the day after the comes to her moorings at the said port ; “ and twenty days more after the said ten days run out, “ for lading on board the aforesaid return cargo; also ten “ working days after said vessel arrives back and is per- “ mitted to an entry at the custom house at Alexandria “ for receiving her inward cargo, which is to be delivered “ at the wharves of said R. T. Hooe and co.
    “ In consideration whereof the said R. T. Hooe and co. “ doth covenant, promise and grant to and with the said “ W. Groverman, his executors &c. by these presents; “ that they, the said R. T. Hooe and co. or their con- “ signee, shall and will pay to the said W. Groverman, or “ his assigns, at the port of Havre de Grace, the sum of “ 21,000 livres, tournois, in hard money, on discharge of “ the cargo of tobacco aforesaid ; also 7,200 livres, in “ hard money, on shipment of the return cargo aforesaid, “ and further, that they, the said R. T. Hooe and co. “ shall and will pay, or cause to be paid, to him the said " W. Groverman, or his assigns, the sum of £8. 8. 0. " current money of Virginia, day by day, and for every “ day’s demurrage, if any there should be by default of “ them the said R. T. Hooe and co. at the port of Alex- “ andria. And the sum of 150 livres, in hard money, day “ by day, and for every day’s demurrage, if any there “ should be by default of them the said R. T. Hooe and “ co. or their assignee, at the port of Havre de Grace. And “ the said R. T. Hooe and co. doth further covenant to “ and with the said W. Groverman, and the aforesaid. " James Davidson, commander of the brigantine afore- “ said, that Andrews and co. their consignee aforesaid, “ shall pay to the said captain, for his primage, five per “ cent, upon the outward and inward freights at Havre “ de Grace and before his departure therefrom. For the “ true and faithful performance of the covenants in this “ charter party, the parties bind themselves, each to the “ other, in the penal sum of £ 3000, current money of “ Virginia, to be recovered by the party observing, against “ the party sailing to perform, the same. In witness “ whereof, we have hereunto interchangeably set our “ hands and affixed our seals, this tenth day of April, “ 1798.”
    “ W. GROVERMAN, Seal.
    “ R. T. HOOE & Co. Seal.”
    “ And the provisional articles in these words, to wit,
    “ The following provisional articles are concluded “ upon, made and agreed to by and between William “ Groverman, owner of the brigantine Nancy, command- “ ed by James Davidson, and R. T. Hooe and co. since “ entering into the charter party hereto annexed.
    
      “ 1. The captain, or commander, shall be instructed “ by his owner, previous to his sailing from the port of “ Alexandria, to touch at Falmouth in such manner as to “ appear to his crew that there was a necessity for his so “ doing, there to lay off and on twenty-four hours, or longer if “ desired, in day light, during which time there will come " off orders from Mr. Fox the American consul, Mr. “ Thomas Wilson, of London, or Messrs. Andrews and “ co. of Havre de Grace. 2. On receiving these orders, " the captain, or commander, must proceed diredtly for “ Havre de Grace, London, Hamburg, Bremen or Rot- “ terdam, as he may be directed, and at one of these ports “ deliver his cargo, to such person or persons as the afore- “ said orders may direct. 3. If the vessel arrives at any “ other of the aforesaid ports than Havre de Grace, the “ time of discharging the outward cargo, taking in her “ inward cargo, demurrage, if any there should be, her “ outward and inward freight, primage &c. shall be the “ same as if the had arrived at and discharged at Havre “ de Grace. 4. The outward freight shall be considered “ as £875 sterling; the inward freight £300 sterling, " primage five per cent. on the freights and the demur- “ rage £ 6. 6. 0. sterling, per day. And if the vessel dis- “ charges in London, the payments shall be made in ster- “ ling cash; if at any other port, in good bills of exchange “ at 60 days on London, without diminution of the above “ sums, except so much as the captain may be authorized “ to receive for his port charges and disbursements. “ 5. If the vessel is detained over 24 hours at Falmouth, de- “ murrage shall be paid for the time at the rate stipulated in “ the charter party. 6. These articles shall not be made “ known to any person whatever, except the captain and “ chief mate. The vessel shall be cleared out for Havre de “ Grace only, and furnished with a role d’equipage, and “ all other papers whatever that may be necessary at this “ custom house. No letters whatever shall be received “ on board except such as the said R. T. Hooe and co. “ puts into the possession and care of the captain.
    “ 7. The charter party first entered into, the copy of “ which is hereunto annexed, shall be in force and con- “ sidered as the only contract between the parties for this “ voyage, and go unconnected with these articles to Havre “ de Grace, and there and from thence govern, unless in “ the case of the vessel being from Falmouth ordered to a “ different port; then, and in that case, the charter party “ shall only be considered as the great outlines of the bar- “ gain between the parties, to be positively governed by “ these articles; but the 4th article to be in force as to “ payments at any place.
    “ In testimony whereof, we have hereunto set our “ hands and affixed our seals, this 11 th day of April, " 1798.
    “WILLIAM GROVERMAN, (Seal.)
    “ R. T. HOOE & co.” (Seal.)
    “ We find that James Davidson, master of the brigan- “ tine Nancy, in the said charter party and provisional ar- “ ticles mentioned, on the morning before the departure “ of said vessel from the port of Alexandria, signed an “ acknowledgment written on said provisional articles “ in these words, to wit, “ I do acknowledge that I am “ to act agreeably to the foregoing provisional articles, “ notwithstanding the charter party to Havre de Grace.
    “ JAMES DAVIDSON. ”
    “ We find that the said James Davidson, before he “ sailed from Alexandria on the voyage in the said pro- “ visional articles mentioned, was told by R. T. Hooe, “ one of the defendants and freighters of said vessel, that “ on his arrival off Falmouth, a town in England, he would “ receive instructions from Mr. Fox, the American consul, “ and that he must abide by such instructions. We find “ that on the twentieth of June, 1798, the said vessel ar- “ rived in Falmouth roads, about three leagues from the “port of Falmouth, and the said James Davidson, the “ master thereof, laid the vessel to, off Falmouth, and im- “ mediately proceeded in a pilot boat to Falmouth, went “ on shore and applied to the said Fox, the American “ consul, for orders where to proceed with the said brig- “ antine and cargo. The said Fox told the said Davidson “ that he had not received any orders for him, and that “ therefore he must bring the brigantine Nancy into the “ port of Falmouth, and there remain with the said brig- “ antine and her cargo, until orders were received for him “ to proceed to his port of discharge. Upon receiving “ which answer and orders from the said Fox, the said “ Davidson, in conformity thereto, returned on board his “ said vessel with a pilot employed by said Fox for the “ purpose of conducing said vessel into the port of Fal- “ mouth; and on the same day the said Davidson brought “ said vessel to an anchor in the port of Falmouth afore- “ said. We find that the said Fox informed the said “ Davidson, that he must wait with said vessel at anchor “ in the port of Falmouth, until the said Fox could pro- “ cure orders for him from Thomas Wilson of London; “ which said Fox and Wilson are the same persons men- “ tioned and named in the aforesaid provisional articles. “ We find that on the 21st. day of June 1798, the said “ James Davidson again went on shore and reported his “ said vessel, and delivered his papers to the collector of “ the customs for the port of Falmouth aforesaid, which “ papers the said collector refused to return, laying that “ he suspected the cargo on board said vessel was French “ property, and on the same day caused the said vessel to “ be seized. We find that on the 23d day of the said month “ of June, the said Davidson received orders from the said “ Thomas Wilson, through the said Fox; to proceed with “ the said vessel and cargo to the Downs, and thence to " London. We find that the said vessel was detained in " the port of Falmouth aforesaid from the said 21st day of “ June, 1798, until the 11th of September following, in “ consequence of the seizure aforesaid. We find that “ on the said 11th day of September the said vessel pro- “ ceded from the port of Falmouth to the Downs by the “ aforesaid order of the aforesaid Thomas Wilson. We “ find that the said Brigantine and cargo were the bona “fide property of American citizens alone; we find “ that by an act of parliament of Great Britain, passed on “ the 29th year of George 3d. ch. 68. §. 12, and in “ force at the time the said Brigantine arrived off Fal- “ mouth as aforesaid, it is enacted and provided in the “ following words, to wit;” “ And be it further enact- “ ed &c.” “ And by the 30th section of the said act, “ it is enacted and provided in the following words to “ wit,” “ Provided always,” &c. “ We find that the “ said Fox urged the danger arising under the said act as “ a reason why the said vessel should be brought to anchor “ in the port of Falmouth, there to wait for the orders “ of the said Thomas Wilson of London, and why the “ said vessel should not lay off Falmouth, without the li- “ mits of the said port. We find that the said vessel “ was, on the said 20th of June, laden in part with “ 240,000 pounds of tobacco of the growth of the “ United States. We find that the said Davidson, at “ Falmouth aforesaid, made and entered a protest in these “ words, manner and form following, to wit, “ To all “ people,” &c.
    
      “ We find that it was by the default of the defend- “ ants or their agents, in sailing to have orders ready on “ the arrival of the said vessel off Falmouth as aforesaid, “ designating and directing to which of the ports of dis- “ charge mentioned in the second article of the provi- “ sional articles aforesaid, the said vessel was to proceed, “ and by the orders given to the said Davidson by the “ laid Mr. Fox, that the said Davidson did bring the “ said vessel to anchor in the said port of Falmouth, and “ that the said vessel and cargo were subjected to the seiz- “ ure and detention aforesaid. If the law be for the plain- " tiff we find for the plaintiff £ 794. 19. 9. Virginia " currency, damages; If the law be for the defendants, “ we find for the defendants.”
    The court below being of opinion that the law was for the plaintiff, judgment was entered accordingly; and the defendants sued out the present writ of error.
    
      Swann and Simms for plaintiffs in error.
    
      C. Lee and E. J. Lee for defendant.
    
      Simms. Inthis case it is material to ascertain whether Hooe and co. ought to be considered as the owners of the vessel, and the captain as their agent, for the voyage; or whether Groverman is to be considered as the owner, and the captain as his agent.
    Whether the freighter or owner of a ship, is to be considered as the owner for the voyage, depends upon the nature of the contract between them. If the freighter hires and employs the master, and the master is subject to his orders and direction during the voyage, then the frieghter is considered as the owner for the voyage; but if the owner hires and employs the captain and hands, then he is the owner for the voyage, and liable for their misconduct. This fully appears from the case of Vallejo v. Wheeler. Cowp. 143.
    In the present case, Groverman was to employ and pay the matter and the mariners. He covenants that they shall perform a specific voyage; that the vessel shall sail with the first fair wind after the is fully laden; that the cargo shall be delivered in good order, the danger of the seas only excepted; that the vessel was at the time of making the charter party, and should continue during the voyage, at his expense, tight, staunch and well found. The captain and crew, therefore, must have been subject to the control of Groverman during the voyage, and he was liable for their misconduct, and if any loss happened thereby, he, and not the freighters, was to bear it.
    Indeed, it is expressly stipulated that the owners shall give instructions to the captain to touch, at Falmouth, 
      there to lay off and on 24 hours or longer if desired, in day light, for orders from Mr. Fox, Mr. Wilson or Messrs. Andrews and co. and that on the receipt of such orders, he should proceed to the port directed by those orders.
    
    If the captain has disobeyed his instructions from his owner and employer, the freighters surely can not be liable. Groverman must look to his agent, the captain, for redress. It is probable, however, that the captain did the best he could for the interest of all concerned; and there is no more reason that the owner should look to the freighters for indemnification for the detention of his ship, than there is for the freighters looking to the owner for indemnification for the detention of their goods. If the captain deviated from his instructions, it was at his and his employers’ risk.
    But the captain was bound by the provisional articles to carry the vessel into Falmouth. She was there in the regular course of her voyage, and, by the articles, Hooe and co. had a right to detain her there upon payment of the stipulated sum for demurrage. Being then in the regular course of the voyage, the detention by a foreign power gives no right to claim demurrage, for the time the was in the hands of the British government under the seizure. The remedy of Groverman was against his insurers, and not against the freighters. If he has not insured, it was his own fault and he must stand his own insurer. Park on insurance, 87, 88, 89. 2 Burr. 696, Goss v. Withers. If the owner could recover demurrage from the freighters on the detention by a foreign government, that detention might continue so long that the stipulated demurrage might amount to twice the value of the ship and cargo. He had a right to abandon to the underwriters; but the freighters can never be presumed to have become insurers. Hooe and co. contracted to pay demurrage for such detention only as should happen through their default; but here the detention was by the British government. The court below have therefore erred in giving judgment for the plaintiff on the special verdict for the whole demurrage, from 21st June to 11th of September, 1798. The vessel was seized before the expiration of the twenty-four hours, which were allowed by
    
      the agreement. Hooe and co. therefore, were not liable to pay any demurrage at all. Or if it shall be considered that Hooe and co. were liable for demurrage after the vessel had been twenty-four hours at Falmouth, until orders were received from Thomas Wilson, they could be bound to pay only for two days, because it is found that the captain received his orders to sail for London on she 23d of June. If Hooe and co. were liable for those two days’ demurrage, and no more, the court below ought to have awarded a venire facias de novo.
    
    But if Hooe and co. had not a right to order the brig to Falmouth, yet Groverman has not a right to recover the damages he may have sustained thereby, in the present action, but his remedy was by a special action on the case. An action of covenant can only be maintained for not doing an act covenanted to be done, or for doing an act covenanted not be done. There was no covenant on the part of Hooe and co. that the vessel should not go into the port of Falmouth; and if there was, yet the plaintiff in his declaration does not aver such a covenant, or declare on the breach of it. The only breach assigned is the non-payment of demurrage. If the vessel had no right to go into the port of Falmouth, then her going in is not a case provided for by the contract, and consequently the contract can form no rule for ascertaining the damages.
    If the vessel had a right to go into Falmouth, then the consequent seizure is not chargeable to Hooe and co. If the had not a right to go in, then no damages can be recovered in the present form of action; nor in any other, because the act complained of, is Groverman’s own act, or the act of his agent, the captain, for whose conduct Groverman himself is responsible.
    It is true the jury have found that it was by the default of Hooe and co. in not having orders ready at Falmouth, that the vessel was obliged to go into the port, and that the seizure and detention took place. But if this is a breach of any one of the covenants, yet it is the breach of a covenant not declared upon, nor is the breach assigned, and therefore no damages can be given in this action, for the breach of that covenant.
    
      
      E. J. Lee, for defendant in error.
    Hooe and co. were owners for the voyage. The captain was bound to obey their orders. Fox and Wilson were their agents. They, by their agent, ordered the vessel into port, contrary to the terms of their agreement; the detention was the consequence of their misconduct and they ought to be liable for demurrage.
    If a person hires a chattel, the hirer is the owner for the time for which he has hired it. Cowp. 143, Vallejo v. Wheeler. In that case, p. 147, it is said, that " there " seems to be great reason for a distinction between a “ general ship, and one that is let to freight to a single person " only. The former carries the goods of all mankind; “ every man that chuses it, is at liberty to load his goods " aboard her; and the merchant who ships his goods in “ such a vessel, has no command over her. He does not “ hire or employ the master; neither is the master subject “ to his order or direction during the voyage. But in the " case of a vessel let to freight to one merchant only, and by " him alone freighted, he may be supposed to employ the " master, and have the direction of the vessel and the voy- " age; and therefore whatever is done by the captain is to be “ considered as done by the merchant’s servant.” The captain, therefore, in taking the vessel into the port, when by the agreement he was only to lay off and on, acted as the servant of Hooe and co. and by their orders expressly given through their agent Mr. Fox.
    But if Hooe and co. were not owners pro bac vice, yet having been the cause of the vessel’s going into port, whereby she was seized, they are liable.
    It is said in Molloy, 375, (257,) Book, 2, ch. 4. §. 9, that “ if the ship, by reason of any fault arising from the " freighter, as lading aboard prohibited or unlawful com- “ modities, occasions a detention, or otherwise impedes “ the ship’s voyage, he shall answer the freight contracted “ and agreed for.”
    It is immaterial what was the immediate cause of the detention, if it happened by the fault of Hooe and co. here is a positive covenant to pay demurrage if the vessel is detained.
    
      But it is said, we have not brought our action for damages for carrying the vessel into port. It is true that we have not; and the reason is that the parties themselves having by covenant fixed the rate of damages, no action but covenant would lay.
    The furnishing the vessel with men, furniture, &c. does not make Groverman the owner. The captain signed the provisional articles by which he bound himself to obey the orders of Fox and others, the agents of Hooe and co. and whether the captain was the agent of Groverman or not, still Hooe and co. have rendered themselves liable by ordering him to go into the port.
    
      C. Lee, on the same side.
    It is of no importance who was the owner; for the detention is clearly the consequence of the default of Hooe and co. The action is brought for not paying demurrage according to express covenant. The defence set up is, that the vessel was improperly carried into the port; and that the captain being the agent of Groverman, he must abide the loss. We admit that it was unlawful for the vessel to go into the port; this is the ground of our right. Suppose the captain was the agent of Groverman, and Fox the agent of Hooe and co. By whose fault or orders was the vessel carried in? Clearly by the orders of Hooe and co. No man has a right to order my servant; but if he does, and by that means misleads him, and a loss happens, he must be liable. Hooe gave instructions to the master how to act. If it was lawful for him to do so, then he must be considered as the owner, and the obedience to his orders, in all its consequences, is chargeable to him.
    If it was not lawful, then his improper interference, if it mislead the master, is also chargeable to him. Unless he was the owner he had no right to instruct the captain; it was a wrongful act. If he was the owner, there is no pretence for not paying the demurrage.
    If it should be said that the act of parliament, referred to in the special verdict, and which is generally called the hovering act, justified the orders to carry the vessel into port, the answer is, that the parties must be supposed to have understood that business, and agreed to the risk.
    The finding of the jury respecting the orders not being ready, although it is apparently in favour of the defendant in error, is not considered as materially affecting the case, because, by the agreement, Hooe and co. were not bound to have the orders ready, but might keep the vessel waiting, upon paying the stipulated demurrage.
    
      Swann for plaintiffs in error.
    The questions which seem to arise in this case are these,
    1. Are Hooe and co. liable at all for this detention?
    2. If they are at all liable, are they liable in this form of action?
    1st. The vessel had a right to go into the port of Falmouth, and was therefore in the regular course of her voyage.
    If so, then the seizure and detention of the vessel by the British government was not by the default of Hooe and co. and the case is not within the contract.
    Hooe and co. were not bound absolutely to have the orders ready on the arrival of the vessel at Falmouth ; but the contract provides for the case of the orders not being ready, and Hooe and co. were at liberty to detain the vessel at Falmouth for orders, on paying a stipulated sum for demurrage. The words of the 5th provisional article are, that “ if the vessel is detained over 24 hours at Fal- “ mouth, demurrage shall be paid at the rate stipulated “ in the charter party.” The parties are presumed to know the course of trade in the voyage about which they were contracting, Cowp. 605, Bond v. Nutt. They must have known that the vessel could not lawfully lay off and on more than 24 hours without being liable to seizure under the act of parliament. This created a necessity for the vessel’s going into port. Not indeed a physical necessity; that was not requisite to justify it. It was sufficient if in prudence and discretion it was necessary and advisable for the general benefit of all parties concerned. Cowp. 601, Bond v. Nutt. Park 310. Burns M. In. 103, 133. The words, “ at Falmouth,” strongly indicate this to have been the understanding of the parties themselves; and the very action itself, founded upon the contract, for demurrage at the port of Falmouth, is a direct affirmance of the right to go into the port. If the vessel had no right to go into the port, then demurrage can not be claimed under the contract, because it is a case not provided for by the contract. If the vessel had a right to go into the port, then she was still in the regular prosecution of her voyage at the time when she was seized by the British government, and consequently the detention can not be chargeable to Hooe and co. They have covenanted only against their own default and their own acts. Groverman had other means of securing himself against all other risks. He ought to have insured; if he has not, it is his own fault; he stands as his own insurer, and his remedy is by recourse to the British government. Suppose the vessel had been seized at Havre de Grace by the French government: Can it be supposed that Hooe and co. would have been liable? It will not be contended that they would ; and yet there is in fact no difference between the two cases.
    Hooe and co. can not be considered as the owners, because, in the first place, the hiring of the vessel was not general, it is of the tonnage only ; this excludes the cabin and the captain’s perquisites. Groverman employs the master and crew, and stipulates for the good condition of the vessel during the voyage, and for the safe transportation of the goods, the danger of the seas only excepted ; thereby clearly making himself responsible for the fidelity and good conduct of the master and mariners. Groverman was therefore clearly the owner of the vessel for the voyage. He covenants to instruct the captain to touch at Falmouth and wait for orders. He covenants that the captain shall proceed to such port as shall be mentioned in those orders. Now he never would have done all this if the captain was not subject to his control. If then the captain was the servant of Groverman, and has improperly carried the vessel into port, instead of laying off and on, how can Hooe and co. be liable for the consequences. It is said, because Fox advised or directed it; and Fox was the agent of Hooe and co.
    Then it amounts to this, that Groverman, by his agent the captain, and Hooe and co. by their agent, Mr. Fox, finding the vessel to be in danger by laying off and on, have consulted together as to the best means of preventing loss to all parties, and agreed that the vessel should go into the port. To which of the parties is this error, if it is one, to be imputed? Certainly to neither; it was their mutual act, intended for their mutual benefit, and neither has a right to complain, or to make the other liable for the subsequent, and perhaps consequent seizure by the British government.
    Fox had no authority to order the vessel, except as to which of the ports mentioned in the provisional articles, she should go. The directions to the captain therefore to come into the port, must have been considered by the captain only as matter of advice. He was not bound to follow it.
    Suppose I advise an act to be done and it turns out unfortunately, am I to be liable for the consequences? Suppose even that the vessel went in purely to oblige and benefit Hooe and co. yet they would not thereby become liable for accidents happening without their default. If my friend in coming to serve me, receives an injury from a third person, am I liable?
    If the provisional articles do not provide for the vessel’s going into the port, yet Mr. Fox and the captain acted correctly. A case arose not provided for by express contract; they did right therefore in mutually consulting for the common good of their employers, and although the result of their deliberations may have proved unfortunate, yet neither party can criminate the other.
    2. If Hooe and co. are liable at all, it is not in this form of action.
    The covenants which they are bound to perform are,
    1. To pay the freight.
    
      2. To furnish orders at Falmouth.
    3. To pay so much per diem for their own detentions.
    Now it is admitted, that this detention was by the British government, and if the vessel was in her voyage while in the port of Falmouth, there was no default, of Hooe and co. by which that detention can be chargeable to them. But if the vessel was out of her voyage, and had been carried into port by Hooe and co. contrary to the agreement, then it is a case not provided for by the charter party, and therefore demurrage as such cannot be claimed. In such a case the remedy would be only for the tort. Suppose they had burnt the vessel; no action of covenant would lay for that wrong. The injury complained of is the ordering the vessel into port.
    Feb. 23d.
   The Chief Justice

delivered the opinion of the court.

This is a writ of error to a judgment rendered in the circuit court of the district of Columbia, sitting in Alexandria on the following case.

A charter party was entered into between the parties on the tenth day of April, 1798, whereby Groverman let to Hooe and co. a vessel, of which he was owner, for a voyage to Havre de Grace.

The firft article states the indenture to witnefs, “ that “ the said Groverman hath granted and to freight letten “ to the said R. T. Hooe and co. the brigantine Nancy, “ whereof he is owner, commanded by James Davidson, a " citizen of the United States, now lying in the port of “ Alexandria, of the burthen of 197 tons, or thereabouts; “ and for and in confideration of the covenants herein “ after mentioned, doth grant and to freight let unto the “ said R. T. Hooe and co. their executors and adminis- " trators, the whole tonnage of the aforesaid vessel called “ the Nancy, from the port of Alexandria, in Virginia, to “ the port of Havre de Grace, in France, and back to the “ said port of Alexandria, in a voyage to be made by the said R. T. Hooe and co. with the said brigantine, in manner " herein after mentioned ; that is to fay, to fail with the “ first fair wind and weather that shall happen after she is “ completely laden, from the said port of Alexandria, with " cargo of tobacco to be shipped by said R. T. Hooe and " co. to the said port of Havre de Grace, and there de- “ town, merchants, or to their assigns, in good order, the “ danger of the seas only excepted ; and at the said port “ of Havre de Grace to take on board a full freight or “ lading of such goods as the said Andrews and co. may " think proper to put on board said brigantine, as a return " cargo, with which the said vessel is to make the best of “ her way directly back to the port of Alexandria, and “ there safely deliver such cargo to the said R. T. Hooe “ and co.”

Groverman further covenants with the said R. T. Hooe and co. that the vessel is and shall, during the voyage, be kept in good condition, and furnished with all manner of necessary and proper rigging, &c. and with mariners to navigate her. He further covenants to allow twenty-five running days for lading the vessel at the port of Alexandria, thirty days for discharging her cargo and taking on board the return cargo at Havre, and ten days for receiving her inward cargo at Alexandria.

In consideration of these covenants, R. T. Hooe and co. engage to pay the stipulated freight, and £.8. 8. o. for every day’s demurrage, if any there should be by their default at the port of Alexandria ; and one hundred and fifty-one livres by the day for every day’s demurrage, occasioned by their default at the port of Havre de Grace.

On the 11th day of April provisional articles were entered into between the same parties by which it was stipulated, that,

1st. “ The captain or commander shall be instructed “ by his owner, previous to his sailing from Alexandria, “ to touch at Falmouth in such manner as shall appear “ to his crew, that there was a necessity for his so doing, “ there to lay off and on twenty-four hours (or longer if " desired) in day light, during which time there will come “ off orders from Mr. Fox, the American consul, Mr. “ Thomas Wilson of London, or Messrs. Andrews and " co. of Havre de Grace.

2dly. " On receiving these orders the captain or com- " mander must proceed directly for Havre de Grace, Lon- " don, Hamburg, Bremen or Rotterdam, as he may be di- “ rected, and at one of these ports deliver his cargo, to “ such person or persons as the aforesaid orders may di- “ rect.”

The third and fourth articles apply the covenants of the charter party, respecting the conduct of the vessel in the port of Havre, to the contingency of her being ordered to some other port; and to the freight, and stipulate the demurrage to be £. 6. 6. 0. sterling by the day.

The fifth article is in these words.

5th. “ If the vessel is detained over twenty-four hours at " Falmouth, demurrage shall be paid for the time at the " rate stipulated in the charter party.” On the 20th of June, 1798, the vessel arrived in Falmouth roads about three leagues from the port of Falmouth, where the master laid her to and immediately went on shore, and applied to Mr. Fox, the American consul, for orders where to proceed. Fox replied that he had received no orders for him and that therefore he must bring the vessel into the port of Falmouth, and there remain until orders were received for him to proceed to his port of discharge.

These orders were given to avoid the penalties of the British hovering act, which subjected to forfeiture the vessel and cargo if found in the situation in which the Nancy would have been, if the had waited for orders without entering the port. The captain immediately brought his vessel into port where she was seized on suspicion of being French property, and detained for nearly three months.

After the seizure, on the 23d day of June, the captain received orders from Thomas Wilson, through Fox, to proceed with his vessel to London, there to deliver her cargo.

This suit is brought by Groverman to recover damages against R. T. Hooe and co. for this detention.

The declaration states the charter party and provisional agreement, and then assigns a breach of them in these words. “And the said plaintiff doth aver that the said brig " arrived off Falmouth on the 19th day of June, 1798, " when the captain, by the orders of the aforesaid Mr. " Fox, the agent of the said defendants, conveyed her into " the port of Falmouth, by means whereof the said brig “ was detained in the aforesaid port of Falmouth, more than “ twenty-four hours, to wit, from the 20th day of June last “ aforesaid, to the 11th day of September in the year 1798, “ when she failed by the orders of Andrews and co. the “ agents for the said defendants, for the Downs.” And the declaration then charges that the defendant had not paid the demurrage stipulated in the charter party, or in the provisional articles.

Issue was joined on the plea of conditions performed, and the jury found a special verdict, containing the facts already stated, and further, that before the vessel sailed from Alexandria the captain was told by R. T. Hooe, that on his arrival off Falmouth he would receive instructions from Mr. Fox, the American consul, and that he must abide by such instructions; and that it was by the default of the defendants or their agents in sailing to have orders ready on the arrival of the said vessel off Falmouth as aforesaid, designating and directing to which of the ports of discharge mentioned in the second article of the provisional articles aforesaid, the said vessel was to proceed, and by the orders given to the said Davidson, (the master) by the said Mr. Fox, that the said Davidson did bring the said vessel to anchor in the said port of Falmouth, and that the said vessel and cargo were subjected to the seizure and detention aforesaid; if the law be for the plaintiff the jury find £.794. 19. 9. Virginia currency, damages; if the law be for the defendant, then they find for the defendants.

The circuit court was of opinion the law was for the plaintiff and rendered judgment in his favor.

To support this judgment the special verdict ought to shew that R. T. Hooe and co. the defendants in the circuit court, have broken some covenant contained in the agreements between the parties; and that the breaches assigned in the declaration are upon the covenant so broken.

The breach assigned is the non-payment of demurrage stipulated to be paid, for a longer detention than twenty-four hours at Falmouth ; and it is to be enquired whether the declaration makes a case showing demurrage to be demandable, and how far the special verdict sustains that case.

The case made by the declaration is,

That on the arrival of the vessel off Falmouth the captain took her into port by order of Mr. Fox, by means whereof she was detained more than twenty-four hours.

The question arising out of this case for the consideration of the court, is,

Does it shew a breach of covenant on the part of R. T. Hooe and co. which subjects them to demurrage for the detention stated ?

The fifth article is supposed to be broken. The words of the covenant are, “ if the vessel is detained over 24 “ hours at Falmouth, demurrage shall be paid for the “ time, at the rate stipulated in the charter-party." If this clause provides for every detention whatever, however it may be occasioned, the enquiry is at an end, and the judgment should be affirmed. But on looking into the provisional articles, the general expressions, here used, will be found to be explained.

The first of these articles stipulates that the captain should touch at Falmouth, there to lay off and on for twenty-four hours (or longer if desired) in day light, during which time there will come off orders from Mr. Fox the American consul, Mr. Thomas Wilson of London, or Messrs. Andrews and co. of Havre de Grace.

Here then is a power given to R. T. Hooe and co. to detain the vessel longer than twenty-four hours, lying off and on at the port of Falmouth, waiting for orders, and it is the only rational construction which can be given the contract to suppose that the fifth article refers to the first.

A certain number of days are allowed for lading the vessel in Alexandria. But more days may be required, in which case demurrage is to be paid. So with respect to discharging and relading the vessel at the port of delivery in Europe ; and so with respect to the return cargo in Alexandria : in each case demurrage is stipulated in the event of a longer detention than is agreed on.

When, then, a time is given to wait for orders at Falmouth, it is reasonable to suppose that the demurrage, which is to be paid, for a longer detention than the time given, relates to a detention occasioned by waiting for orders, or some breach of covenant by R. T. Hooe and co.

The declaration does not state the vessel to have waited, lying off and on, for orders, but to have been taken into port, by the orders of Mr. Fox, when she was seized and detained by the officers of the British government.

The covenant then was broken by taking the vessel into port, and it is to be enquired who is answerable for this, breach.

It has been argued that R. T. Hooe and co. are answerable for it, because,

1. Their orders for the further prosecution of the voyage ought to have been in readiness as stipulated.

2. The vessel was taken into port by the orders of their agent, for whose acts they are accountable.

3. The captain was, for the voyage, their captain ; and the stipulation to lay off and on, therefore, being broken by him, was broken by them.

To the first argument, founded on the non-reception of orders, the observation already made may be repeated. The declaration does not attribute the detention to that cause, but to a compliance with the orders of Fox in taking the vessel into port.

If, however, the charge in the declaration had been that orders were not ready on the arrival of the vessel, that charge would have been answered by the contract itself, which allows a delay of twenty-four hours for the reception of orders, without paying demurrage, and a longer time, if required, on paying therefor at the rate of £. 6. 6. 0. sterling, by the day.

The failure then to have the orders, for the further destination of the vessel, in readiness on the arrival of the captain, or even within the twenty-four hours after his arrival, was no breach of contract on the part of R. T. Hooe and co. since it was an event contemplated and provided for by the parties ; and the question whether in the actual case which has happened, that is of a delay longer than twenty-four hours in giving the orders, but of a seizure before that time elapsed, R. T. Hooe and co. are responsible for demurrage accruing between the termination of the twenty-four hours and the receipt of the orders, cannot be made in this case, because there is no allegation in the declaration which puts that fact in issue.

The court will proceed then to consider whether,

2dly. R T. Hooe and co. are made accountable for the vessel’s being taken into port, since that measure was adopted in pursuance of the instructions of their agent, Mr. Fox.

The finding of the jury goes far to prove that the defendants in the court below have made themselves responsible for the conduct of Fox. They find that R. T. Hooe informed the captain before he sailed from Alexandria, that on his arrival off Falmouth, he would receive orders from Mr. Fox, and that he must abide by such instructions. This finding creates some difficulty in the case. But this communication from Mr. Hooe to the captain ought to be taken, it is conceived, in connection with the provisional articles. Those articles explain the nature of the orders to be received, and by which the captain was directed to abide. In them it is expressly stipulated that on receiving these instructions, the captain should proceed directly for Havre de Grace, London, Hamburg, Bremen, or Rotterdam, as he should be directed. The orders then which he was to receive and obey, must be supposed compatible with this agreement, This construction is the more reasonable, because, annexed to the provisional articles, is an acknowledgment on the part of the captain, that he was to act conformably to them. He ought not to have understood declarations of the kind stated in the verdict, as directing a departure from a written agreement entered into by the owner and freighters of the vessel, and to which he had bound himself to conform.

This article seems too to explain the power delegated by Hooe and co. to Fox; and to show that he was their agent for the purpose of directing the further destination of the vessel, but for no other purpose.

If this be the correct mode of understanding this part of the verdict, and it is believed to be so, then the particular conduct of Hooe and co. did not authorize the captain to obey the orders of the American consul in taking the vessel into port; nor are they responsible for the consequences of that measure, unless they could be considered as responsible for a violation of the covenant by the act of the captain.

If these facts are to be differently understood, and the communication made by Hooe to the captain is to be understood as authorizing him to obey any order given by Fox, though that order should be directly repugnant to the provisional articles, shall the liability of Hooe and co. in this suit, will depend on the question, whether the covenant to lay off and on at the port of Falmouth, was a covenant on the part of the owner, or of the freighters, of the vessel. This depends so much on the question whether Groverman or R. T. Hooe and co. were owners of the vessel for the voyage, that it will more properly be considered with that point.

3. Was the captain under the direction of Groverman or Hooe and co. for the voyage ?

This is to be determined by the whole charter party, ind the provisional articles taken together.

It has been observed at the bar, and the observation has considerable weight, that Groverman lets the tonnage of the vessel, and not the whole vessel, to the freighters. The expression of the charter party, it will be perceived, varies in the part descriptive of the agreement, from what is used in the part constituting the written agreement. The indenture witnesses, “ that the said Groverman hath “ granted, and to freight letten, to the said R. T. Hooe “ and co. the brigantine Nancy, whereof he is owner,” &c. but immediately proceeds to say, “ and for and in “ consideration of the covenants herein after mentioned, “ doth grant and to freight let to the said R. T. Hooe “ and co. the whole tonnage of the aforesaid vessel, from the “ port of Alexandria, in Virginia, to the port of Havre “ de Grace, in France,” &c. As the latter are the operative words which really constitute the contract, it is conceived that they ought to prevail in construing that contract. Groverman, then, has only let to Hooe and co. the tonnage of the vessel, and therefore is the less to be considered as having relinquished ownership of her during the voyage. There are other circumstances which serve to show that the direction of the vessel, during the voyage, was intended to remain with Groverman. The cargo is to be delivered to Messrs. Andrews and co. of Havre de Grace, in good order, the danger of the seas only excepted. This is an undertaking on the part of Groverman, which he certainly would not have made if he had relinquished the direction of the voyage to Hooe and co. If the vessel, pro hac vice, had been their vessel, Groverman would not have contracted for the delivery of the cargo ; and for the delivery to a specified person.

If the freighters had owned and commanded the vessel they might have delivered the cargo in Havre, to any other person, or have discharged at a port short of Havre, without injury to Groverman. So the cargo taken on board at Havre is to be such as Andrews and co. may think proper ; which return cargo is to be delivered to Hooe and co. in Alexandria. These stipulations all indicate that the voyage was to be performed under the orders of Groverman, because the acts stipulated are to be done by him, and the covenants are his covenants.

This is further evidenced by the subsequent language of the charter party. The succeeding sentence begins with the words, “ And the said Groverman doth further " covenant to and with the said R. T. Hooe and co.” &c. showing that the preceding covenants were all on the part of Groverman. This further covenant is not only for the present condition of the vessel, but that she shall be kept well apparelled and well manned by the said Groverman during the voyage. The captain, then, was Groverman’s captain, the mariners were Groverman’s mariners; and this furnishes an additional reason for supposing the captain and mariners to be under his direction.

After some further covenants on the part of Groverman the charter party proceeds thus, “ In consideration “ whereof the said R. T. Hooe and co. do covenant, &c. “ to and with the said W. Groverman, &c. that they “ will well and truly pay the freight stipulated therein.”

Thus the whole language of the charter party goes to prove that the covenants respecting the voyage are on the part of Groverman, and on that account, as well as on the account of his letting only the tonnage of the vessel, and furnishing the captain and mariners, &c. he is to be considered as the owner of the vessel for the voyage, under the charter party. This opinion is strengthened rather than weakened by the provisional articles.

The first article stipulates that particular instructions respecting the voyage shall be given to the captain, by Groverman, before its commencement. The words are, “ The captain or commander shall be instructed by his “ owner, previous to his sailing from the port of Alex- “ andria, to touch at Falmouth,” “ there to lay off and “ on twenty-four hours (or longer if desired) in day light,” &c. These orders, then, to the captain were to be given by Groverman, and it was by his authority that the captain was to act on that occasion. This explains the doubt as to the person who was to be considered as covenanting that the vessel should lay off and on, for twenty-four hours, at the port of Falmouth, and tends to show who was responsible for the breach of that covenant. This too is in addition to covenants in the charter party which are plainly Groverman’s, and is therefore the more to be considered as a covenant on his part. The act was to be performed by his authority, and the covenant was his covenant.

On a consideration, then, of the whole contract between the parties, the court is of opinion that Groverman remained the owner of the vessel during the voyage, and is answerable for any misconduct of the captain.

The covenant to lay off and on at the port of Falmouth, being the covenant of Groverman, the freighters are not answerable in this action, for the breach of it, should the orders of Fox be understood as their orders. It is probable that the course taken by the captain was the most prudent course ; but were it otherwise, the orders of Fox might excuse the owner from any action brought by the freighters for loss sustained by them in consequence of going into Falmouth, but could not entitle him in this action against the freighters.

It is then the opinion of this court, that on this special verdict, the law is for the defendants.

Judgment reversed, and the circuit court to enter judgment for the defendants.  