
    Ephraim Locke versus Samuel Swan.
    A. vessel was chartered from Boston to the Coast of Africa, and back to the United States, at a certain rate per month, and at that rate for a less time, as she should be continued in the said service, in thirty days after her return tn 
      Boston. She touched and traded at several places on the coast, and, returning for the United Slates, was captured. It was holden, that hire was due from the inception of the voyage, until the expiration of half the time spent at the last place visited by her on the coast for the purpose of trade.]
    t Swift vs. Clarke, 15 Mass. Rep. 172.
    This was an action of covenant broken, brought upon a charter-party, bearing date the 4th of February, 1812, by which the plaintiff let to freight to the defendant the brig Federal, and appurtenances, for a voyage to be made by the defendant “from Boston to the coast of Africa, and *back to the United States, where she was to be discharged ”; and covenanted, among other ■ things, that the defendant or his agents might lade on board the said brig, “ as well at Africa as at Boston,” any goods they should think proper, contraband goods excepted. The defendant covenanted to pay, for the freight or hire of the said brig, the sum of $2.50 per ton, per month ; “ commencing with the sixth day of February aforesaid, during the voyage aforesaid, and time employed, and so in proportion for a less time, as the said brig shall be continued in the aforesaid service, in thirty days after her return to Boston” ; to pay all port charges, &c., and to deliver the vessel, on her return to Boston, to the plaintiff, the danger of the seas excepted.
    The cause was submitted to the determination of the Court upon an agreed statement of facts, to the following effect. The vessel was taken into the employment of Swan on the said 6th of February, and after being loaded with his own goods and those of other persons upon certain agreements, sailed for the coast of Africa, and after touching and trading at Goree, Sierra Leone, and several other places on the coast, sailed for Prince Island, where, after careening, she took in wood, water, &c., and there finished trading, a small part of her outward cargo remaining on board. The whole time thus occupied in trading was three or four months ; in the course of which, a return cargo was made up, consisting of gold dust and various other productions of the country, with about $ 300 in specie, which, on the capture of the vessel, hereafter mentioned, was distributed among the crew. On the 17th of September, 1812, being on her return voyage from Prince Island for Boston, she was captured, as prize of war, by the British frigate Acasta, and was carried to Halifax. The defendant was permitted to be on shore on his parol, a mulatto servant of his being the only one of the original crew remaining on board. While the brig lay at Halifax, the defendant; with the aid of the said mulatto, succeeded in secreting and * getting into his possession gold dust to the value of $4000 ; which he brought home with him, and sent to Philadelphia, where it was sold. He wat allowed a salvage upon this, by those interested in the voyage ; and the net proceeds of the sale, $ 2795.73, were divided among the owners under an award of arbitrators, to whom the defendant and the other owners had submitted the question. The plaintiff was one of the owners or shippers of the cargo, and received his proportion of the said proceeds. The vessel and the residue of the cargo were condemned as prize at Halifax.
    
    If, upon the facts stated, the plaintiff, in the opinion of the Court, was entitled to any freight or charter by reason of the hire of the vessel, or to recover any thing by reason of the loss of the vessel, the defendant was to be defaulted, and judgment rendered for the plaintiff, for such sum as the Court should assess, with costs ; otherwise, the plaintiff was to become nonsuit.
    
      Prescott and Hubbard, for the plaintiff,
    contended, that he was entitled, by the covenant in the charter-party, to hire, inception of the voyage to the capture ; for so long the vessel continued in the service of the defendant. But, at least, he had a valid claim, by the marine law, to the hire until the commencement of the homeward voyage. Further, the plaintiff has a right to a pro rata freight on the homeward voyage for the part of the cargo finally saved by the defendant. 
    
    Gorham, for the defendant,
    argued, that the voyage in this case could not be divided into an outward and a homeward. There was no opportunity, in coasting the shore of Africa, to realize the profits, that might have been made upon an outward cargo ; as in a voyage to a commercial city in a civilized country. No profits could be perceived until the return of the vessel to the United States. The principle, then, which had given freight or hire for the outward voyage, when the homeward one was lost, had no applicate tion here. This case, in this part of it, agrees with *the case of Coffin & al. vs. Storer; 
       and though a pro rata freight was there allowed, the demand was submitted without regard to the form of action ; and the Court expressly say, that “no hire could be demanded by force of the charter-party.” The marine law does not apply to this action of covenant. If the plaintiff should recover in this action, the defendant must pay the whole hire, although he was owner of a small part of the cargo only ; whereas, if freight is due, it is due by the marine law, and from all the shippers in proportion to their interest in the cargo.
    
      
      
        Mackrell vs. Simon & al., Abbott on Shipping, 209.—Ibid. 267.—Brown vs. Hunt, 11 Mass. Rep. 45. — Havelock vs. Geddes, 10 East, 555.
    
    
      
       5 Mass. Rep. 252.
    
   Parker, C. J.,

delivered the opinion of the Court. Upon the covenants in this charter-party, taken strictly according to the true import and meaning of the words, and without regard to the marine law, the plaintiff would be entitled to recover for the hire of his vessel down to the time of her capture ; for, until that time, she was, in the words of the covenant, in the employment of the defendant. The stipulation, that the hire was to be paid in thirty days after her arrival at her port of discharge, would be construed to limit the time of payment only ; but would not operate to render it contingent whether any thing should be due or not. This was settled in the case of Brown vs. Hunt, cited in the argument.

But the marine law is let in to regulate this contract, and to affect the rights of the parties equitably, according to the beneficial use of the subject for which hire is to be paid. By that law, the contract is divisible, and the owner is to be paid, in case of capture or other destruction of the property, for so much of the term only as the vessel shall appear to have been earning profit for the hirer. The rule which seems to have been adopted is, that, where the voyage may be considered to be divided into an outward and a homeward voyage, they shall be deemed two voyages ; and, in case of a dissolution of the contract by an unavoidable peril on the homeward voyage, the hire for the outward voyage shall be paid. This rule is also applicable to seamen’s wages, as well as to contracts of * affreightment; and it is probably the best general rule which could be established; although its application may not do exact justice in each particular case. When the outward voyage is completed, the freighter may remit the proceeds by bills of exchange or otherwise ; and he frequently does so, without regard to the homeward voyage. If he chooses to ship the proceeds, he may be considered as engaging in a new adventure, the risks of which he voluntarily incurs.

It is objected, that the voyage, in this case, was but one entire voyage ; because the vessel was to coast along the shore and islands, and there was no one place at which she was to discharge her outward cargo and take on board one for her return. But, if this were true, it would not help the defendant; for, in that case, according to the contract, he would be liable to pay until the capture. The voyage out, however, is considered to have ended at Prince Island, that being the place where she took in the last of her cargo, and from which she departed for home. The hire is due up to half the time of her stay at that place.

With respect to the claim of the plaintiff to salvage, on account of the gold dust brought from Halifax, we think he must fail : because it has no relation to this contract. The article was brought home ay the master in another vessel. It must be considered as lost by the capture, and recovered by the master by an act of his own wholly independent of the contract which is the subject of this action.

Defendant defaulted.

[See Griggs & al. vs. Austin & al., 3 Pick. 20; Abbott on Shipping (Story's ed.), 239, note 1. —Ed.]  