
    * Clarissa Minot & Al., Administrators, versus Cornelius Durant.
    Where one had hived a vessel for a voyage, and by the charter-party han cun tracted to pay a certain sum per month for the hire during the voyage, it was held that the hire was payable while the vessel was detained in port by an embargo laid by the government of the United States.
    
    This was an action of covenant broken, brought by the plaintiffs, as administrators of the goods and estate of Thomas Minot, deceased, upon a charter-party of affreightment, dated the 3d of November, 1807, whereby the defendant hired of the said Thomas and others the brig Fortitude, on a voyage from Portland to St. Croix and back to the United States, thence to St. Croix and back to the United States twice. The defendant covenanted to pay for the hire at the rate of 1,75 cents per ton per calendar month, during the time the said brig should be so employed by him, deducting therefrom the time of making any necessary repairs during the voyage.
    The action came before the Court upon an agreed statement ot facts to the following effect: —
    The charter-party was duly executed on the day it bears date. The brig was loaded by the defendant, and, on the 15th of the same November, sailed for St. Croix, where she arrived and discharged her cargo, and from thence sailed for Wilmington, in the state of North Carolina, where she arrived on the 12th of January, 1808, and took on board a cargo of lumber, completing her lading on the 4th of February following, on which day the crew of the brig, except the master and cook, were discharged by the defendant, the vessel being detained from that time until the 15th of March, 1808, by the embargo laws; the master and cook, during that time, were employed by the defendant in taking care of the vessel. On or about the 16th of March aforesaid, a new crew having been shipped, she sailed for the West Indies, and continued in the service of the defendant until the 3d of October, 1809, when she was discharged at Portland.
    
    The plaintiffs’ intestate was owner of six sixteenth parts only of the said brig, and they claim in this action that [ * 437 ] * proportion of the hire thereof, computing from the commencement to the termination of the voyage, it being understood that the owners of the remaining ten sixteenth parts, in their adjustment with the defendant, deducted from the charge the hire during thirteen months and twelve days, while the brig was detained at Wilmington.
    
    It was agreed that the Court should enter into judgment for such sum as, on these facts, they should be of opinion was due from the defendant to the plaintiffs; and the principal question submitted to the Court was, whether the plaintiffs were entitled to recover the hire during the time the vessel was so detained by the embargo.
    
      Whitman, for the defendant,
    contended that an embargo was, in its nature, and ex vi termini, but a temporary suspension of commerce, whatever may be the terms of the act or ordinance which imposes it. Such was the universal impression as to the embargo, which gave rise to the present question. So, also, was it held by the Supreme Court of the state of New York, in the case of M’Bride vs. Mar. Ins. Company. 
       And in the case of Hadley vs. Clarke, 
       an embargo laid “until the further order of council” was considered by the Court of King’s Bench as temporary. The effect of such a temporary restraint upon trade is to suspend the operation of a contract during its continuance. This was the purport of the decision of Hadley vs. Clarke.
    
    
      Hopkins for the plaintiffs.
    The defendant might have protected himself against this demand, by an exception in his contract, as he did in case time should be lost by repairs of the vessel, and as he also excepted the danger of the seas. Here, as the event proved, the danger on land was more serious than that of the seas. But when he found himself prohibited from a foreign voyage, he might have employed the vessel, of which he was quasi owner, in the coasting trade, which was not prohibited. Or he might have rescinded the contract, and delivered the vessel to the owners, who would have so employed her. The case *of [ * 438 J Iiadley vs. Clarke shows that an embargo is no legitimate excuse for the non-performance of a contract. In the case of Hare vs. Whitmore, 
       it was determined that an embargo did not excuse the non-compliance with a warranty, in a policy of insurance, that a ship should sail on a day certain ; and in Beale vs. Thompson, 
       though the plaintiff failed to recover his wages, it seemed to be agreed by all the judges that an embargo would no* have barred him.
    
      
       5 Johns. Rep. 308.
    
    
      
       8 D. & E. 259. — See, also, French Ordinances, Liv. 3, Tit. 1, Art. 8.
    
    
      
      
        Marshall, 253. — Cowp. 784.
    
    
      
       3 Bos. & Pul. 405.
    
   By the Court.

We are all of opinion that the plaintiffs are entitled to recover their proportion of the hire during the whole voyage. The defendant might have employed the vessel in the coasting trade during the continuance of the embargo. But separately from this consideration, parties must be bound by their contracts, if they will not provide against contingencies, as they may, and as the defendant did in this case as to other contingencies.  