delivered the opinion of this court.
The instructions asked by the appellee, who was plaintiff below, were not based on an assumed state of facts, to be submitted to the consideration of the jury. They were moved, it would seem, in the confidence, that as the evidence wras uncontradicted, the jury could not do otherwise than find the facts accordingly.
They are, in effect, an assertion by the court, in the first and second instructions, that the Eliza Davidson was captured and detained by thePerle; and in the third instruction, that Corrientes was blockaded on and after the ship’s release at Monte Video. Doubtless the jury would have found these facts according to the testimony, but the sufficiency of evidence to satisfy a jury, or the circumstance, that it is all on one side. *427does not authorise the court to direct the jury, that it proves the fact. They have the power to refuse their credit, and no action of the court should control the exercise of their admitted right, to weigh the credibility of evidence. In thus incautiously expressing their opinion, the court erred.
The appellants deny the right of the appellee, to recover on the state of facts set out in the defendant’s first prayer, on various grounds.
The first four reasons assigned in the record, are based upon the assumption, that the ship was entitled to full freight, and might have earned it by proceeding on the voyage, with the part of her cargo received, when she was seized and driven off.
If the construction given to the charter party by the appellants, could be adopted, this objection must be sustained. That construction is, that Peabody, the charterer, under the circumstances which occurred, was answerable for the whole amount of freight, which would have been earned by the successful prosecution and termination of the contemplated voyage. Was such the meaning of the charter? It is to be construed as other contracts, so as to effect the design of the parties, apparent by its terms. The evidence is, that about one fourth of the cargo was taken in at Comentes; and there is no allegation of unwillingness, or wmnt of readiness or preparation, on the part of the charterer, to furnish the residue of the lading. It would, therefore, seem to require very explicit language to justify the inference, that in such a state of things, the charterer intended to pay full freight. If it can be demanded in a case where an enemy’s force, by seizing and driving away the ship, after receiving one fourth part only of the cargo, why may it not be in a case, where one hundreth part only is taken in ? If full freight is due, where, by a hostile force, the ship is prevented from loading more than a very minute portion of the cargo, why not, if, after receiving a full cargo, a hostile force were to seize and carry off a very large proportion of the cargo, before the ship had left her port of lading ? In these cases, full freight certainly could not be *428charged. We think the apparent intent of this charter party, was, that “a full and complete cargo” should be received on board at Corrientes, and delivered at Boston, to entitle the owner to full freight; and that in the event, which actually happened, it was at least doubtful, whether the charterer could have been compelled to pay any freight on the small portion of the cargo received, and which was violently seised, and taken to Monte Video. We think the appellants have no cause, therefore, to complain of the adjustment between Peabody and Mattison.
The next reason assigned, is, that the freight which was actually earned and received, on the voyage from Monte Video to Havana, or so much of it as would repay the loss claimed by the appellees, ought to be applied as salvage, to the relief of the underwriters, in this case.
It is rightly argued, that the contract of insurance is one of indemnity, and the doctrine of salvage for freight, has been introduced as a fair item in the adjustment of actual loss. If therefore, the particular freight, that is to say, the freight on the particular cargo contemplated in the policy, be not earned, but other freight be earned in the same voyage, the insurer will only be liable for the difference, because, that is the extent of actual loss by that voyage. No case, however, has extended the doctrine so far as is now claimed. This is not the case of a suspended voyage, afterwards pursued, nor is it the case of a prosecution of the same voyage, with a different cargo. The first voyage was completely and finally broken up and ended, in consequence of the ship’s being driven off from the port of lading, and without a prospect of permission to return. Time had elapsed sufficient for the completion of the original voyage, when, at a different port from that of her intended lading, she received a different cargo, for a different destination, on which she earned freight.
There must be some limitation, in regard to time, as well as distinction, in the application of this doctrine. It cannot be required, that a ship shall remain, year after year, awaiting the restoration of peace, or removal of an embargo, so as to allow *429her to return to her original port of lading; or to remain, for any indefinite period, waiting for a cargo to her port of destination. The inconvenience, not to say ruinous consequences of such a doctrine, are too manifest to require detail. In like manner, it would be quite impossible to maintain, on principles of policy, or by authority, that the first subsequent voyage, whatsoever might be the port of lading or of destination, must be made subject to this claim for salvage, on the freight of the interrupted voyage.
Great difficulty may be found in ascertaining the precise limits, within which the doctrine should be applied; but we do not think, that any adjudged case will authorise us to include this within its letter or spirit.
The fifth reason is subject to the additional exception, noticed in considering the prayers of the appellees. The time in which either of the voyages alluded to, should be performed, is a question of fact, and not to be assumed and asserted by the court.
The last objection stated in the record, respects the right of the plaintiffs below, to recover more than the proportion, in which they were owners. This, we think, was rightly abandoned, as altogether untenable. See Phil, on Ins. 593, and the numerous cases there cited.
The result is, we concur with the court below, in their several opinions on the instructions asked for by the appellants below, but differ from that court, in respect to the opinions expressed on the prayers of the appellees, the plaintiffs below.
JUDGMENT REVERSED AND PROCEDENDO ORDERED.