
    Thomas Brown versus John Hunt and Another.
    By a deed of charter-party, the hire of the vessel was at an agreed price per ton per month, on a voyage from Boston to Savannah, thence to the West Indies, and back to a port of the United States, and thence to Boston. The vessel, having performed the first passages, was captured on her return to Boston; and the hire was held due to the discharge of her cargo at the port from which she last sailed for Boston.
    
    Covenant upon a deed of charter-party, dated December 17, 1811, by which the plaintiff let to freight to the defendants the schooner Fame, burden eighty-five tons, for a voyage from Boston to Savannah, and from thence to a port in the West Indies, and from thence to Boston, with liberty to return from the [ *46 ] West Indies to any port in the *United States, and from thence to Boston, where the vessel was to be discharged; the defendants agreeing, on their part, to pay for the freight or hire of the said schooner the sum of two dollars and seventeen cents per ton per month, and so in proportion for a less time, as the schooner should be continued in the said service, in thirty days after her return to Boston.
    
    In a case stated by the parties for the opinion of the Court; il was agreed that the said schooner Fame was received into the service of the defendants on the 17th of December, 1811, and proceeded to Savannah, where the defendants laded on board thereof, on their own account, a full cargo of merchandise, with which she proceeded to the West Indies, and there discharged her cargo, and received on board another cargo on account of the defendants, with which she arrived in safety at Savannah; and by the 23d of June, 1812, the said last-mentioned cargo was discharged in good order. On the 4th of July following, the defendants despatched the schooner in ballast from Savannah for Boston, to be there delivered to the plaintiff; and on the 14th of the same July, as she was proceeding for Boston for the purpose aforesaid, she was captured by a British frigate, and burnt and wholly destroyed. The hire, from the 17th of December, 1811, to the 23d of June aforesaid, amounted to 1143 dollars 59 cents; and from the same commencement to the said day of capture it amounted to 1272 dollars 71 cents.
    The parties further agreed that, if the Court should be of opinion that the- plaintiff was entitled to recover any thing upon the facts stated, in any form of action, the defendants should be defaulted, and judgment be rendered against them for such sum as the Court should find to be due; if, in the opinion of the Court, the plaintiff was entitled to recover nothing, he agreed to become nonsuit.
    
      Prescott, for the plaintiff,
    contended that hire was due until the arrival of the vessel and discharge of her cargo at * Savannah, notwithstanding the stipulation that the hire [ *47 ] was to be paid after the vessel’s arrival at Boston. The defendants had perfectly accomplished all their object in the contract ; and it would be gross to permit them, in addition to their regular profits, to put the hire in their pockets also. By the marine law, contracts for freight, for wages, &c., may be apportioned. In this case, the whole voyage was performed, and the capture after-wards took place, while the defendants were returning the vessel to Boston, for the sole purpose of delivering her to her owners. 
    
    
      Thatcher, for the defendants.
    One voyage only is contemplated in this charter-party ; and that never having been completed, the plaintiffs can claim nothing by the terms of their contract, in the construction of which no consideration, whether the defendants have received a profit or not, ought to mix itself. If the bargain has proved a hard one for the plaintiff, he made it himself; and he .made it with an understanding of the law' applicable to it. The case of Minott vs. Durant 
       was a hard one upon the defendant; but the Court say that parties must be bound by their contracts, if they will not provide against contingencies, as they may. 
    
    
      
       10 East, 555, Havelock vs. Geddes. — Abbot on Shipping, 266, Mackrell vs. Simona & Al. — Ibid. 249, Lutwidge & Al. vs. Grey & Al.—2 Burr. 882, Luke vs. Lyde. —5 East, 316, Mulloy vs. Bacher. — Molloy, lib. 2, c. 4, § 15.—1 Johns 26, Post vs Robinson.
      
    
    
      
       7 Mass. Rep. 436.
    
    
      
       11 East, 232, Puller vs. Staniford. — 7 D. & E. 381, Cook vs. Jennings. — 8 East, 437, Smith vs. Wilson. —10 East, 526, Liddard vs. Lopes & Al. — 5 Mass. Rep. 252, Coffin vs. Storer.—Abbot, 265, cites Molloy, lib. 2, c. 4, § 9, and Brownl. 21, Bright vs. Cowper.—Malyne. 98. — Abbot, 270, Byrne & Al. vs. Pattinson.
      
    
   Sewall, C. J.,

pronounced the judgment of the Court.

It is not disputed that, where an outward voyage and a homeward voyage are spoken of in a contract as distinct, there the freight becomes due upon the performance of each voyage. It would, however, be unreasonable to suppose this construction to be restricted to the particular expressions and' case of an outward and homeward voyage. Any other expressions, descriptive of a voyage or adventure consisting of several distinct and separate passages or voyages, are within the same reason, and seem to be governed by the same rule ; or rather, in the case of more than two passages or voyages, we are- led more forcibly to distinguish them, and the description of them has peculiarly that effect.

In the ancient case of Bright vs. Cowper, cited by Abbot, it is stated, although it seems not to have been the point decided, that, if a ship be freighted out and in, there arises [ * 48 ] * nothing due for freight until the whole voyage be performed ; and if the ship perish coming home, the freight outwards, as well as inwards, becomes lost. Supposing a contract by the run or great, as it is sometimes expressed, this would be true, and is according to the subsequent decisions, although contrary to the rules of the civil law, which admits an apportionment of the contract.

The case of Post vs. Robinson, decided in New York, was of a vessel hired for a specific sum for the voyage.

The case of Mackrell vs. Simon & Hankey more resembles the case at bar. The hiring, in that case, was by the month, from London to Plymouth and the Island of Grenada, and from thence back to London, with a covenant, in such outward and homeward voyage, to load and unload all lawful goods. In an action of covenant on this charter-party, the vessel having been lost when returning on the homeward voyage, after having performed the voyage to Grenada, the plaintiff recovered his freight for the outward voyage,

This was reasonable and equitable, and fully warrants a decision in the case at bar for the plaintiff, as to all the passages or voyages which were performed. The hire is to be paid when the ship earns freight; and for goods shipped for each distinct passage mentioned in the charter-party, as from Boston to Savannah, from Savannah to the West Indies, from thence to Savannah, and from thence to Boston, the hirers might have been entitled to freight. When that is the case, there must be some very distinct expression, to avoid the presumption thence arising that the hire is to be paid in the same manner, or becomes due, although a different time and place be appointed for the payment.

In the decision of Byrne & Al. vs. Pattinson, cited in the arguments for the defendants, the hiring was by the month, and several passages are distinctly stated. But the mode of payment is remarkable. A part was in advance, a part abroad, and the balance is expressly stated to become due and to be paid at the completion of the return voyage, in good bills, &c. Lord Kenyon decides particularly upon * the expression, becomes due at [ * 49 ] the return of the vessel; and in that case it was adjudged that the balance never became due, the ship having been lost in the homeward voyage.

The case at bar is upon a different footing. Distinct passages are mentioned. Nothing is said when the freight, to be reckoned per ton per month, is to be considered as earned and due. Nor is there any thing in this contract to prevent the analogy between this case and the common cases of goods carried on freight; or to prevent.. in its construction, an application of the ordinary rules of the marine law. The amount per month for the hire is to be paid at the return of the vessel. The hirer is prevented by an inevitable accident, á peril excepted in the contract, from performing his contract to return the vessel to the owners; and the same event, which excuses him in this particular, determines the time when the freight money becomes payable, which had before been earned and become due.

The case of Coffin vs. Storer, decided by this Court, and relied on in the argument for the defendant, is distinguishable from the case at bar. In effect, there, the freight was paid pro rata itineris, although not considered due immediately on the charter-party. The hiring in that case was for a voyage out and home, but so expressed as not to be distinguishable as two voyages. The hiring, reckoned by the month, was to be paid on the completion of the voyage. By the contract, the defendant was a partner in the voyage, the vessel being at the risk of the plaintiff for the whole voyage; which is equivalent to an agreement to risk the freight the defendant paying outfits and expenses.

Upon the whole, the same principle and rule of decision was recognized in that case as governs us in this. .We think this a case where the rule of distinct voyages applies. And although the vessel was not returned to the owner, and the last voyage, commenced at Savannah, was never performed, yet, for the [ *50 ] previous employment of the vessel, to the *time of her last discharge at Savannah, the freight is due; that is, to the 23d of June, when the amount due was 1143 dollars 59 cents, for which sum, with costs, the plaintiff is entitled to judgment 
      
      
         In this case, Lord Mansfield, in delivering the judgment of the court, seems to Have laid peculiar stress on the words “ outward and homeward voyage,” in the charter-party, as indicative of an intent to consider them as two distinct voyages.—Abboti Shipping, 335.
     
      
      
         Lock vs. Swan, 13 Mass. Rep. 76. — But see Blanchard vs. Buckman, 3 Greenl. 1.— Coffin vs. Storer, 5 Mass. Rep. 252. — Storer vs. Gordon & Al. 3 M. & S. 308. — Gibbon, vs. Mendez, 2 B. & A. 17. — Barker vs. Cheriot, 2 Johns. 352. — Scott vs. Libbey, 2 Johns. 336. — Byrne vs. Pattinson, Abbot, 5th ed. 333, 334. — Holt, 2d ed. 351, 431, 447. — Platt. Cov. 83.
     