The opinion of the Court was drawn up by
Davis, J.The owners of a ship have a legal right to taire it from the custody and control of the master, .at any time, and in whatever place. If a seaman is discharged from an American vessel in a foreign port, he is entitled to extra pay, under the laws of the United States. But no such provision is made for the master. His compensation depends *305entirely upon, and is limited by the terms of his contract with the owners. All considerations of justice, and equity, are presumed to have received the attention of the parties, and to have been provided for, at the time of making the contract. If not, it is their own fault, or misfortune. Courts of justice cannot make contracts for parties; they can only construe and enforce them. They can no more insert stipulations improvidently omitted, than strike out those which the parties have inserted.
The defendant, in August, 1854, residing and then being in Portland, agreed with the owners of the ship Portland, who also resided at the same place, “ to be the master of the ship, his compensation to be twenty dollars per month, and five per cent, commissions.”
As the agent of the plaintiffs, he was entitled to be reimbursed for all his necessary expenses while in their service. It becomes necessary, therefore, for us to determine when his employment for the plaintiffs commenced, and when it terminated.
It is agreed, that, after the contract was made, “ he went to New York, from Portland, to take charge of the ship.” He was in the employment of the owners from the time of starting. He went, not for any business of his own, but for them, in their service. The contract attached the moment he began to act for them; and his capacity as master, did not depend upon his being personally on board the ship, or in the same port. He might have been acting as master, in purchasing supplies, seeking freights, or otherwise, some time lefore leaving home. That he was thus acting from the time when he commenced his journey, we cannot doubt. Such is the reasonable construction of the contract. His expenses in going to New York he rightfully charged to the owners of the ship, and retained the amount from their funds in his hands.
He was discharged, in September, 1857, in Havre, in France. “ He came thence to New York, in a packet steamer, paying for his passage one hundred and fifty dollars.”
*306After his discharge, he was no longer in the service of the plaintiffs, and could rightfully charge none of his expenses to them, because not made in prosecuting their business. It would seem no more than just, as they discharged him in a foreign port, for them to pay his expenses in returning home. But he knew his liability to be so discharged; and he might have made provision for it in his contract. Not having done so, he must abide the consequences of the oversight. He could not have recovered the amount of his expenses from the owners; and he had no right to retain it from their funds.
He made several voyages while he was master, upon one of which, while waiting for a cargo of guano at the Chincha Islands, he received $1120, for demurrage, which became due by the terms of the charter for the voyage. Upon this sum he charged to the owners, and retained from their funds, five per cent, for his commissions. This he had a right to do. "A vessel lying in port, waiting for a cargo, needs the care of a master. And if the owners are receiving pay for it, under a charter which the master has made, he is entitled to commissions thereon, as much as upon any other earnings of the vessel, unless a distinction is made'by his contract, which excepts such earnings therefrom.
According to the agreement of the parties, judgment is to be rendered for the plaintiffs for one hundred and fifty dollars, with interest thereon from October .10, 1851, when demand of payment was made.
Tenney, C. J., Appleton, Cutting, May and Goodenow, JJ., concurred.