The Bello Corrunes. 6 W. Spain under a commission from the new States formed in her colonies. Citizens of the United States, therefore, present themselves to this court to demand restitution of a prize which they had made in violation of the most solemn stipulations of a treaty and provisions of a law of their own country, and of which they have been dispossessed by their own associates in guilt. Under such circumstances, this court cannot hesitate to reject the claim and adjudge the property to the original proprietors. This view of the subject obviates the necessity of examining the reality and effect of the alleged rescue on behalf of the original owners, with a view to the question of restitution; but it still becomes necessary, with a view to the question of forfeiture and the merit of the alleged salvors. With regard to the former, it is very clear that, supposing the rescue to have been real and complete, the Spanish consul ought not to be precluded from his election, whether to put his claim upon the ground that the interest of those whom he represents was never legally devested or that it was afterwards legally recovered. In the one case there is no ground for [ * 173 ] *affecting it with the forfeiture because of the conduct of the crew; and in the other, some question may be made how far the property was affected by the illegal acts of those who, at that time, held in the right of the owners. But even in this latter view of the state of the property, we are of opinion that the forfeiture was not incurred; since, although it be supposed that the property was in custody of those who held for the Spanish owners, it was not held by those to whom the Spanish owners had intrusted the vessel and cargo. And this is the only ground upon which the acts of the ship's company are made to produce forfeitures of the interest of shippers or ship-owners. For, besides the considerations drawn from the great predominance of the force detached from the privateer, in the effort to recapture, the few men of her own crew were gratuitous actors. Their contract with the owners had ceased, and they assumed the character of voluntary agents, whose conduct the owners might or might not adopt, according to their own views or interests. As to the claims of the salvors, it may be remarked that maritime courts always approach them with great benignity and favor. Yet, in proportion to the inclination to favor where there is merit, is the indignation with which they view every indication of a disposition to take advantage of the unfortunate. Spoliation, and even gross neglect, may forfeit all the pretensions of salvors to compensation. In the case before us, it is not too much to pronounce the claim The Bello Corrunes. 6 W. of those of the crew of The Puyerredon, who libel for [* 174 ] salvage, to be not only groundless, but impudent; for, be sides spoliation, smuggling, and the grossest irregularities, it is perfectly clear, from the pilot's evidence, that they run the vessel on shore purposely. So that whatever may have been the reality of their benevolent designs towards the Spanish owners originally, their subsequent conduct not only casts a doubt over their candor, but devests them of all pretensions to compensation. Nor do the five Spaniards who composed a part of the crew of The Bello Corrunes, at the time she was stranded, and who were not of the capturing crew, escape being involved in the suspicions which fasten on their associates. It is a melancholy truth, too well known to this court, that the instruments used in the predatory voyages carried on under the colors of the South American States, are among the most abandoned and profligate of men. Under the influence of strong interests or fears, the mind of man too often yields, even where the moral sense still exerts its influence; but hold out to one of these practised adventurers in a course of plunder, the hope of gain on the one hand, and the fear of imprisonment for piracy on the other, and what are the chances for truth! That these men were selected from the Spanish crew to associate with those of the capturing vessel, is a circumstance not very favorable to their characters and conduct, and it would require some strong evidence of their innocence to remove from them the suspicion of a voluntary association with the enemies of their king. Joining in or even setting on * foot or promoting the [*175] recapture, (facts which rest wholly on their own veracity,) can prove very little in their favor, since such mutinies are become every-day occurrences, whenever such a crew find themselves in possession of a valuable cargo. Nor will the inference in their favor be very strong from their resorting to the consul of their country, since it was the only course which held out a chance of gain or of from the imputation both of piracy and smuggling. There is no evidence to separate their conduct from a complete identification with the rest of the crew, except what is obtained from their own testimony. Yet it is suggested that they may still make their innocence and merits to appear; and as the parties have signified their consent that the case may be opened in the court below, as to this class of salvors, the case will be remanded to the circuit court for further proceedings, so far as the claim for salvage is concerned. Decree accordingly. escape Smith v. Universal Insurance Company. 6 W. SMITH et al. v. UNIVERSAL INSURANCE COMPANY. 6 W. 176. The entire loss of the voyage does not per se constitute a technical total loss of cargo; the loss of the cargo must be occasioned by some peril insured against acting directly on the subject insured. The insurers do not undertake that it shall be lawful to trade at the port of destination, and if the voyage is abandoned from fear of forfeiture for illicit trade, if the vessel should proceed to the port of destination, this does not amount to a total loss of the cargo. [ * 177 ] *ERROR to the circuit court of the United States for Maryland. This was an action of covenant on a policy of insurance, underwritten by the defendants for the plaintiffs, on the 4th of February, 1817, on a voyage at and from New York, to and at a port or ports, place or places, in the Gulf of Mexico, from the Balize to Campeachy, both inclusive, and from either back to New York, or a port of discharge in the United States, upon all kinds of lawful goods and merchandises laden, or to be laden, on board the schooner Ellen Tooker. In another part of the policy, it is stated to be "on [178] cargo, consisting chiefly,of munitions of war." There is a memorandum also in the policy, whereby the underwriters are warranted by the assured free from any charge, damage, or loss, which may arise in consequence of a seizure or detention of the property for or on account of any illicit or prohibited trade. The declaration alleges that the vessel, with the cargo, proceeded on the voyage, and asserts as a loss within the contract, that while on the voyage the schooner, with her cargo, was restrained and detained by certain persons acting under the authority of the king of Spain, whereby the goods and merchandises became wholly lost. The material facts, as they appeared on the trial, are these: The Ellen Tooker, having on board property of the plaintiff of a greater value than the sum insured, sailed from New York, on the voyage insured, on the 31st of January, 1817. On the 25th of February she arrived at the Balize, where the master left the vessel and went to New Orleans, and having obtained information that Nantla and Talacuta were in possession of the Independents, to which places American vessels might proceed, on his return to the Balize, the schooner proceeded for Nantla, and arrived off that place on the 23d of March, and found it in possession of the Royalists. The schooner then proceeded to Talacuta, and having arrived off that place, a boat was sent ashore for information, the crew of which were made prisConcluding from this occurrence that the place was in possession of the Royalists, the schooner put to sea, and [*179] on the 5th of April fell in with a fleet of six sail under oners. Smith v. Universal Insurance Company. 6 W. the command of General Mina, with troops on board, bound for the bar of St. Ander. The master having had communication with General Mina, and received encouragement from him that he would purchase the cargo, the schooner kept company with the fleet, and arrived off the bar of St. Ander on the 28th of April, where the schooner came to anchor in the open sea, the entrance being too shoal to permit her to cross the bar. On the 11th of May, the master left the schooner and went up the river to Porto La Marina, (where General Mina had his head quarters,) for the purpose of selling the cargo, which he accordingly did, deliverable to General Mina, as he should want it, from time to time, at St. Ander, the whole delivery to be completed by the first of July. On the 18th of May, while the master was on shore, a Spanish frigate and two armed schooners of the Royalists hove in sight, and the schooner was immediately gotten under way for the purpose of escaping them, and after four hours' chase effected her escape. The schooner made several attempts to return, but was prevented by Spanish ships hovering about the place; on the 26th of May, finding the coast clear, she returned to St Ander, which was still in possession of the Independents, and the master was taken on board. The foremast of the schooner being found to be loose in the step and injured, and the crew being short of water, the schooner proceeded to the mouth of the Rio Grande for water and to examine the foremast; and there the heel of the foremast being found to be gone, the schooner proceeded to the . *Balize for repairs, and arrived there on the 6th of June. [* 180 ] The foremast was there repaired, and the schooner sailed again for St. Ander for the purpose of delivering the cargo to General Mina, according to contract, and on her arrival there, on the 22d of June, the place was found to be in possession of the Royalists, who occupied it with a military force. In consequence of this, the schooner did not approach the shore, but proceeded along the coast northward to a place called Pass Cavellos, about 270 miles from St. Ander, where information was received that St. Ander and the coast were completely in possession of the Royalists. The objects of the voyage being in this manner defeated, the schooner returned to New York with her original cargo on board, and arrived there on the 22d of July, 1817. The plaintiffs had no intelligence of the breaking up of the voyage until the return of the schooner to New York, and then abandoned to the underwriters in due time, assigning as a cause, that The Ellen Tooker was "compelled, by an armed force, to leave St. Ander in the Gulf of Mexico, where she had arrived and was about to deliver her cargo, and was prevented thereafter by a like force from reëntering that place." This abandonment was not Smith v. Universal Insurance Company. 6 W. accepted. It was also in evidence, that the cargo of The Ellen Tooker was shipped, and intended to be sold to the Independent party of Mexico, which was waging war with the king of Spain, and that the same was prohibited from importation into Mexico by the laws of Spain, and would have been seized and confiscated [* 181] if it had been carried into any of the ports in * possession of the Royalists, but would have been freely admitted into any ports in possession of the Independent party. Upon these facts a verdict was given, and judgment rendered for the defendants, and the cause was brought to this court by writ of error. Winder and Raymond, for the plaintiffs. *Pinkney and D. B. Ogden, contrà. [*183] STORY, J., delivered the opinion of the court, and after stating the facts, proceeded as follows: Upon these facts, the circuit court directed the jury that the plaintiffs were not entitled to recover; and the propriety of this direction is the question before us upon this writ of error. Two points have been argued at the bar: 1. That there was no actual restraint of persons acting under the authority of Spain, whereby the voyage was defeated. 2. That if a technical total loss took place, by the loss of the voyage, it was a loss occasioned by engaging in an illicit and prohibited trade, for which, by the memorandum in the policy, the underwriters are not liable. The declaration and the abandonment, both tie up the case, to a total loss of the voyage, by the restraint of Spanish authorities. If this case be not made out in proof, there is an end of the controversy. [*185] *In cases of this sort, where a technical total loss is asserted as a ground of recovery, it is not sufficient that the voyage has been entirely frustrated and lost; but the loss must be occasioned by some peril actually insured against. The peril must act directly, and not circuitously, upon the subject of the insurance. It must be an immediate peril, and the loss the proper consequence of it; and it is not sufficient that the voyage be abandoned, for fear of the operation of the peril. The plaintiffs rely upon the fact of The Ellen Tooker's being chased away from St. Ander, and being prevented for several days from returning to that place by the presence of Spanish armed ships, as decisive proof of actual restraint. But the voyage was delayed |