
    Burrill & Cahoon against Cleeman.
    hired the ves-tiffs^to'eaiTya cargo from n. back°with'adre-turnearlo to jv. naiitedCtó'páy the plaintiffs for hireVf the vesi »el “from a: tack” fourteen hundred^ doi-livery of the ancftiie sun/of E400le hollara, on ttede^very cargo* or arrival rftlm vessei^m vessel’proceed-°o from A,eaF finí arrived in sight of p.; but strictly block” The defendant tofitJe Momd’ ron'T'e'waTfcr-bidden to enter having ¡lo in-'roceedio i!" other * port, fhe majfy“”¡it the cargo'; and the plaintiffs offered the defendant to carry iVto^m10 tori .n Us Ticiiiff”, as *e defendant might direct; but the hu^eabandoned the cargo to the underwriters, it, declined the offer; and die cargo was af-terwards demanded and received by the underwriters, who, as well as the defendant, refused to pay the freight. HeJd, that the. plaintiffs were not entitled to any freight under the charter party; ihe voyage not havng Been performed,nor the cargo delivered, according to the conditions of the agreement, on the performance of which the payment of the freight depended.
    5 was an action of covenant, in a chatter party, made the 10th of March, 1817, by which the plaintiffs let to freight, to the defendant, the schooner Aurora, “for a voyage from New- York to Pernambuco.” The plaintiffs stipulated to re ceive a cargo, and (the dangers of the seas and restraints of rulers and princes excepted) to proceed therewith, from the port of New-York to Pernambuco, and there deliver the said cargo to the defendant, his factors or agents. The defendant was to be allowed 40 running days, for discharging the cargo at P. from the time of the vessel’s arriving there, and being ready to unload. And the vessel was to leave P. within, or expiration of, the said 40 days, with the goods, (fee. of the defendant on board for New- York, there to be delivered, consideration of the covenant and agreements of the plaintiffs to be performed, he, the defendant, covenanted to pay ⅛0 plaintiffs, for the charter and hire of the vessel “ from New-York to Pernambuco, and back, the sum of fourteen hundred dollars on the delivery of the cargo at P. and the sum of fourteen hundred dollars on the delivery of the return oarg°> or arrival of the vessel, at New- Yorkand if, by default of the defendant, the vessel should be detained longer t|lan 4() days at P., then the defendant was to pay twenty dollars a day during such detention. THIS
    *The declaration contained three counts: the first count averred, that the vessel sailed with the cargo of the defendant on board, for Pernambuco, and arrived in sight of, and near the jown - put was prevented, by the blockade of the place, from entering and delivering her cargo, and was obliged to return to Nets- York; and did return, and there deliver the cargo to the defendant, and so performed and finished the said voyage, &c., and assigned as a breach the non-payment of the 1,400 dollars, made payable on the delivery of the return cargo, or arr¡va| 0f the vessel at New- York. The second count averred r a performance or the voyage generally, and assigned as a breach, riie non-payment of the 1,400 dollars on the delivery of the cargo at / and of the 1,400 dollars on the delivery of the re|Um cargo, or arrival of the vessel at New-York.
    
    vi» , T 1 he third count averred, that the vessel received a cargo ol defendant on board, and was made ready to sail and proceed therewith from the port of New-York to Pernambuco, and although the plaintiffs were ready and willing to set sail, and proceed with the said cargo from New-1 ork to 1 ernambuco, 
      and there deliver the same to the defendant, and did offer to perform and fulfil, all and singular the covenants on their part to be performed and fulfilled ; yet the defendant did not, nor would permit the said vessel to set sail, and proceed with the said cargo to Pernambuco, but, afterwards, caused and procured the said cargo to be unladen, and the said vessel to be discharged from the said intended voyage ; and hath not paid, or caused to be paid, to the plaintiffs, the charter money, or any part thereof, &c.
    It was proved, at the trial, that the defendant, about the 15th of March, 1817, shipped on board the vessel, a cargo to be delivered at P. with which the vessel, on the 16th of March, set sail from New-York, on her voyage to P., that, on the 14th of May following, she came in sight of the town of P., and close in with four Portuguese men of war lying without the bar, and two ships arid two brigs ; and being brought to by the fleet, the master of the Aurora was forbidden to enter the port, which was under strict blockade; %nd the Portuguese commander endorsed the register of the Aurora, warning her not to enter P, The master, not having instructions to go to any other port, concluded to return to New- York, where he arrived on the 23d of June following. The next clay, the plaintiffs offered to the defendant to carry the cargo back in the vessel to P., or to any port in the vicinity, as the defendant might direct; the defendant answered, that it would not accord with his views; that he had abandoned the cargo to the underwriters, and had nothing more to do with it. This offer was repeated, before the hatches were opened, and the defendant made the same reply; and the witness understood the offer to be, to carry the cargo back to P., or a near port, under the charter party.
    The cargo was insured by the Ocean Insurance Company, to whom it was abandoned by the defendant, on the return of the vessel to New-York, and the insurers accepted the abandonment. On the 7th of July, they demanded and received the cargo, but refused, as did also the defendant, to pay to the plaintiffs any part of the charter money.
    It appeared that the blockade of P. was raised, and the Portuguese authority re-established there, on the 23d of May, 1317.
    A verdict was taken for the plaintiffs, for 3,200 dollars, subject to the opinion of the court, whether, under the circumstances of the case, the plaintiffs were entitled to recover, under any, and which, count of the declaration, and to what amount, if any, they are entitled, and to award a venire de novo, or writ of inquiry, to assess thé damages; but if the court should be of opinion that the plaintiffs were not entitled to recover on any of the counts, then a judgment was to be entered for the defendant.
    
      Jfcf Court, for the plaintiffs.
    By the true construction of the (.fjajjej. party, the plaintiffs are entitled to recover at least 1,400 dollars, under the first count in the declaration. This case is distinguishable from those of Scott v. Libby and others, (2 John. Rep. 336.) and Pcnoyer v. Mallet, (15 Johns. Rep. ¿32.) decided in this court, where the voyage was entire, out and home, and the performance of the entire voyage was a condition precedent to the payment #of freight. Here the contract shows, clearly, two distinct voyages, one out to Per-nambuco, and the other back to New- York. The vessel could not enter Pernambuco, and she returned to New-York, and there delivered her cargo. The claim of the plaintiffs to one half, at least, of the freight, is equitable and just. Wherever the voyage can be divided, so as to give the plaintiff’ a just compensation, the court will do it. In the present case, the freight may be easily apportioned. The charter party itself divides it into two parts; as for two distinct voyages, out and home. Lord Ellenborough, in Ritchie, v. Atkinson, (10 East, 295. 298.) speaking of the case of Smith v. Wilson, (8 East, 437.) says, “ where the freight is made payable on an indivisible condition, such as in that case, the arrival of the ship with her cargo at her destined port of discharge, such arrival, &.c. must be a condition precedent, because it is incapable of being apportioned, but here the delivery of the cargo is, in its nature, divisible, and, therefore, I think it is not a condition precedent; but the plaintiff is entitled to freight in proportion to the extent of such delivery, leaving the defendant to his remedy in damages for the short delivery.” The principle laid down in that case is applicable to the present. In Liddard v. Lopes, (10 East, 526.) the court said that the plaintiff could not recover; but should have provided in his contract for the emergency which had arisen. Here the contract provides for the case of a return of the vessel to New- York; and having returned with the cargo, the plaintiff is fairly entitled to the freight of the return voyage. In construing a covenant, it is to be taken most strongly against the covenantor. The fair construction is, that the plaintiff is to be paid the 1,400 dollars, on the return of the vessel to New- York, though she should not be able to obtain a return cargo ai P. (Bell v. Puller, 2 Taunt. 2S5.) In Brown v. Hunt, (11 Mass. Rep. 45.) the contract was for a voyage from Boston to Savannah, from thence to a port in the West Indies, and from thence to Boston, with liberty to return from the West Indies to any port in the United States, and thence to Boston, and the defendants were to pay a certain sum per ton, per month, as long as *the vessel continued in the service, in thirty days after her return to Boston. The vessel performed the voyage from Boston to Savannah, thence to the West Indies, and back to Savannah; and, while proceeding home from Savannah to Boston, was captured by the Brit
      
      ish, and burned. The Supreme Court of Massachusetts held the different passages to be distinct voyages, and the plaintiff received freight up to the time of the last delivery of a cargo, at Savannah, previous to the sailing thence for Boston.
    
    Again; the plaintiffs had a right to carry the goods to P. after the blocka.de was removed, and they offered to do so; but the defendant refused his consent. The plaintiffs are not to be affected by any arrangements between the defendant and the insurers of the cargo.
    
      T. A. Emmet, contra.
    1. The charter party was dissolved by the blockade of P., the port of delivery, and no action at law can be maintained on it. In Scott v. Libby and others, (2 Johns. Rep. 336.) the court say, that the charter party is dissolved by the blockade of the port of destination ; and that trover would lie for the cargo, which the defendant refused to deliver, unless the freight was paid.
    The voyage, in this case, was entire, from New- York to P. and back. The freight was to be paid in two installments; but the contract is single and entire.
    2. Admitting, however, that there were two distinct voyages ; yet, the performance of the voyage to P. was a condition precedent to the payment of any part of the freight. The vessel never did arrive at P., nor did she deliver a cargo there. The second voyage was to bring a return cargo from P. to New-York. But the vessel never was at P., and so could not bring a return cargo from thence to New- York. So that, whether the whole is considered as one entire voyage, or as divisible, the plaintiffs have not performed their contract. There can be no doubt as to the blockade. (The Tutela, 6 Rob. Adm. .Rep. 177.) The plaintiffs might have had their freight insured, and would, on account of the blockade, have recovered the %rnount from the underwriters. (Schmidt v. N. Y. Ins. Co. 1 Johns. Rep. 249.)
    The contract of charter party is to be considered fairly, according to the true intent and meaning of the parties. What benefit has the defendant derived from the contract ? On what principle of equity is he bound -to compensate the plaintiffs for their loss, arising from an unforeseen event, or accident ?
    3. As to the claim to a recovery, under the third count, on the offer to carry the cargo to P., the case of Smith v. Wilson, (8 East, 437.) shows, most clearly and decidedly, that it is unfounded. The offer to do a thing which it is not in the immediate power of the party to do, but the performance of which may be defeated by various contingent events, or inevitable accidents, is not enougli to entitle him to recover, from the other party, for the non-performance of a corresponding duty, on the ground of his refusal to accept the offer.
    If the defendants had a right to wait for the removal of the blockade of P., and to go there afterwards, and so earn his freight, by delivering the cargo, the consent of the defendant was not necessary. They might have insisted on their right to carry on the cargo to P,, or to be paid their full freight. (Griswolds v. New-York Ins. Co. 1 Johns. Rep. 205. S'. C. 3 Johns. Rep. 321.)
    As to any compensation for bringing back the defendant’s goods to New-York, arising from an implied assumpsit, it should be made against the insurers who received the cargo; not against the defendant.
    
      Ely, in reply.
    The blockade of the port of destination does not dissolve the contract of charter party. In Scott v. IAbby, Thompson, J., says, “It appears to be conceded by the counsel on both sides, that,, by the blockade of the port of discharge, the charter party was dissolved, and all claim to freight under it gone and he refers to Abbot, p. 338; and the same judge, afterwards, in Lorillard v. Palmer, (15 Johns. Rep. 14—20.) refers to Scott v. Libby, for this doctrine, as settled. Abbot does not lay down such a principle; and the cause of Loril-lard v. Palmer has been reversed #in the Court of Errors,  A blockade is different from an interdiction of commerce : it is considered only as a temporary interruption of the voyage; and the master may wait until the port be opened, without prejudice to the policy of insurance. (Per Parsons, Ch. J., 6 Mass. Rep. 118. Richardson v. Mar. Ins. Co. 60.) It is in the election of the master, to consider a blockade as putting an end to the charter party, or not. He may, if he chooses, go to a near port, and wait until the blockade is removed. If the performance of a contract is obstructed, without any fault of the person who is to perform, lie may wait a reasonable time for the removal of the obstruction, and then perform it. fie may offer to proceed with the cargo, as the plaintiffs did, in this case, and if the other side refuses, he must pay freight. (3 Johns. Rep. 322.) The case of Smith v. Wilson, turned on the pleadings, and the strict construction of the covenant, as to the breach assigned in the declaration.
    But the plaintiffs do not merely claim freight, eo nomine, 
      under the contract; but they demand damages for refusing to let them proceed and fulfil the contract, according to the charter party. There was no near port to P., to which the plaintiffs could go, for a market.
    
      
      
         Vide 16 Johns. Rep. 348. This was a case of a blocka.de of the port of departure ; hut Kent. Chancellor. refers to the case of Scott v. Libby for the doctrine, thatif there be a blockade of the port of destination, so that a delivery becomes impossible, and the vessel returns with her cargo to the port of departure, the voyage is defeated, and the, freight not earned.” Abbot, (part 3. ch. 11. s. 3.) after stating-, that, if the performance of the agreement became unlawful, it is absolutely dissolved, as when, before the commencement of the voyage, hostilities take place between the country to which the vessel and cargo belongs, and that to which they are destined, or commerce between them be wholly prohibited, says,<{ but if war or hostilities break out between the place to which the ship or cargo belongs, and any other nation to which they are not destined; although the performance of the contract is thereby rendered more hazardous, yet is not the contract itself dissolved; and each of the parties must submit to the extraordinary event, unless they mutually agree to abandon the adventure, (Ordonnance de la Marine, Valin, lit). 3. tit. 3 .fret, art. 15.)
    
   #Vast Ness, J.,

delivered the opinion of the court. Whether here were not two distinct voyages, one out, and the other home, or not, is a question not necessary- to be decided. The terms of this charter party are a little peculiar, and I am not prepared to say, that if the cargo had been delivered at Pernambuco, that the outward freight would not have been earned, in case the vessel had never arrived at New-York. But the cargo lias not been delivered there, and the outward freight, therefore, admitting the voyage to be divisible, has not been earned. The stipulation, however, that the freight, payable on delivery of the return cargo, or arrival of the vessel at New- York, has been supposed, under the facts in this case, to give the plaintiff a right to recover the freight home. This is not the true construction of the contract, which clearly contemplates, that the freight home shall be payable only, in case the voyage out shall have been performed. The freight back is payable on the voyage from the port of destination, and after her arrival and delivery of the outward cargo there. The parties, probably, had in view the contingency, that no return cargo might be obtained, and for that reason the payment of the 1,400 dollars at Netv- York was made to depend upon the happening of one of two events, viz. the delivery of a cargo to be shipped, at Pernambuco, if one should be procured, and if no such cargo was shipped, then on the arrival of the vessel at JSew- York. The freight, stipulated to be paid by the charter party, depended upon the performance of the voyage, and was a condition precedent to the freight being payable, and this condition not having been performed, the freight cannot be recovered.

With respect to the right to recover damages on the third count, the case of Smith v. Wilson, (8 East, 443.) is in point. The defendant had a right to abandon the cargo on its arrival at New- York, and the charter was made with reference to that right. The defendant has lost the expected profit of the voyage, and the plaintiffs have lost their freight, by one of those contingencies to which all commercial adventures are subject.

Judgment for the defendant.  