delivered the opinion of the court.
This is an action to recover the hire of the brig Fama, chartered by the defendants for a voyage from New-Orleans to Brazos St. Jago, or Tampico. The defendants resist the payment, on the ground that the vessel did not proceed with the cargo, or deliver it at the place of destination, but damaged more than three fourths of it in the river Mississippi, so as to render it impracticable to re-ship it; that the voyage was thereby broken lip, and the damaged portion of the cargo, after having been duly inspected and surveyed by ihe port wardens, was by them ordered to be sold, and it was so sold for account of the underwriters, and not accepted voluntarily or unconditionally; but merely received by them as agent for the insurers ; that the voyage, nor any part of it, WcSinot performed, no transportation or delivery of the cargo was made, according to the terms and stipulations of the charter party or bills of lading.
The facts established on the trial are, that, the brig departed from from'New-Orleans on her voyage on the 3d of March, and on the 4th, about day-light, struck some obstacle under water, which caused her to spring a leak; that she was leaking so fast that it became necessary to strand her, and having succeeded in partially stopping the leak, it was found expedient to return to port to repair. She reached the city on the 5th, in t.be afternoon, and on the 7th they began to discharge the cargo, and finished discharging on the 9th, at noon. It was found that a large part of the cargo was damaged, and was sold bjr direction of the port wardens, for account of whom it might concern. On the 14th of the same month, the defendants were notified by the latter that the brig had finished her repairs, and was ready to receive her cargo on board, in order to proceed on her voyage. But the defendants declined putting any cargo on board. It, appears that the cargo was too much damaged to be re-shipped, at least without being repacked.
The hire or .rent is due when rt depends alone on th.e*\vill of the hirer or lessee to enjoy the thing hired, or when he has not been prevented from enjoying il by the lessor. It is not of the contract 'of af-freightment that the merchandize should be trans-same^vessei ^to the port of dcsti-of necessity, the may'1repah'Vthe vessel, or furnish another to com-píete the voyage freight. ref^es'tf’Sow repairs, or per-S'employ owners SSof' the chartered vessel to the -whole voyage,although the cargo is not delivered &t tbe port Of destina-tl0n-It is not pretended that the damage done to the cargo was occasioned by the fault or negligence of the captain or crew, or that the vessel was not sea-worthy at the time she sailed on the projected voyage.
The obligations of the parties to a contract of affreightment by charter- party, spring from the nature of the contract, ■which is one essentially of letting and hiring. As a general principle, it is well s'ettled, that the hire or rent is due when it depends alone on the will of the hirer or lessee to enjoy the thing, or when he has not been prevented from enjoying it by the lessor. Pothier Contrat de Louage. 2 Boulay Paty 363.
When, therefore, it is asserted that the transportation of cargo to the port of destination, is a condition precedent, without which the freight or hire cannot be recovered, it ° 7 must be taken with this limitation, that the charterer was noh toy bis own act, prevented the performance of that con-¿lition. Jf the cargo had been delivered at the place of destination., however deteriorated by the perils of the sea, it conceded on all hands, that the whole freight would have been earned. It is not of the essence of the contract that . , the merchandize should be transported in the same vessel, but m case of necessity arising from vis major during the v°yage’ the captain or owners have a right either to repair, if it can be done within a reasonable time, or to employ vessel and earn the freight. “If the merchant disagre'es witíl -this> (to use *6 words of Lord Mansfield,) and will not let him do so, the master will be entitled to the whole freight of the full voyage, and so it was determined by tbe House of Lords in the case of Lutwidge & How vs. Gray et al.” Jlbbott on Shipping, 311. * bit o
According to these principles, if the Fama, after the accident, had put into an intermediate port to repair, and had a few days after offered to proceed on the voyage, having .completed her repairs, and this had béen declined by the ■charterers, who, in the meantime, had disposed of the cargo, we do not doubt that the owners would have been entitled to -full freight. How is the case varied when - the port of *205departure becomes, as it were, a port of necessity, as in this case1? The voyage was begun, and whether the accident happened in the Mississippi or on the coast of Mexico; whether the vessel put back to New-Orleans or put into any port between that and the Brazos St. Jago, for the purpose of making repairs and saving the cargo, cannot, in our opinion, change the relative rights of the parlies.
So, where a mueh injured on *.e astomakeitne-tiTport and re-paíof the cargo was so damaged that it was sold by 01-wardens?"5 Pfor whom ;t mjsht concern, and the remainder unfit nepaciangT/S', that the freighters of the vessel were hound to a^Ah/Tm-go had been delivered at the port of destination, re-shfplonheing-notified ten days ant lthat a<the vessel was ready cargo and1 pro-vova °n her*205Lord Ellenborough, who is supposed by the counsel for the appellants, to have sanctioned, in one case, a different doctrine, laid down the law, in the case of Hunter vs. Prinsep, in the following manner: “ The ship owners undertake that they will carry the goods to the place of destination, unless prevented by the dangers of the sea or other unavoidable casualties; and the freighter undertakes that if the goods be delivered at the place of destination he will pay the, stipulated freight, but it was only in that event, viz: of their delivery at the place, of destination,' that he, the, freighter, engages to pay any thing. If the ship be disabled from completing her voyage, the ship owner may still entitle himself to the whole freight, by forwarding the goods by some other means to the place of destination ; but he has no right to any. freight if they be not so forwarded, unless the forwarding them be dispensed with, or unless there be some new bargain on the subject. If the ship owner will not forward them, the freighter is entitled to them without paying any thing. One party, therefore, if he forward them, or be prevented or discharged from so doing, is entitled to his whole freight, and the other, if there be a refusal to „ , . . .,,, i . , . forward them, is entitled to have them without paying any freight at all.” 10 East, 378. Abbott on Shipping, 322.
If on 'a previous occasion his lordship had apparently lent the countenance of his great name to a contrary doctrine, it is not for us to reconcile him to himself. We think ourselves authorized to follow this latter decision as more consonant to . . . the settled maxims of maritime law, and in harmony with tjie best authorities in France, England and the United States. ' '
We concur with the counsel for the appellants, that this is not a case in which partial freight might be allowed U pro *206rata itineris. No part of the cargo was, in fact, conveyed (0 the port of destination, nor was there such a breaking up voyage as to 'create a new implied promise to pay P8,1'1^ freight. The' plaintiffs are entitled to the whole or no thing, and we agree with the court below, that the defendants are ^0Un<^ to Pay ^e entire hire of the brig.
R is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.