1821. The Bello In case of an illegal capture, struction of language, as applied to the provisions of a treaty, which always combines the characteristics of a contract, as well as a law: but it is not necessary to examine the grounds of these doubts, as applied to the present case; because this treaty has been enforced by the provisions of the act of Congress of the 14th June, 1797, so as to leave no doubt of its extension to the case of cruising against 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 the neutrality of examining the reality and effect of the alleged res in violation of this country, the property of cue on behalf of the original owners, with a view the lawful own ers cannot be to the question of restitution; but it still becomes forfeited for a breach of its re- necessary, with a view to the question of forfeiture, venue laws, by the captors, or and the merit of the alleged salvors. With regard persons who have rescued the property to the former, it is very clear, that supposing the from their pos. session. rescue to have been real and compleat, 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 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 entrusted 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 favour. Yet, in proportion to the inclination to favour 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 of those of the crew of the Puy 1821. The Bello Corrunes The rights of salvage may be forfeited by the the salvors. misconduct of 1821. The Bello erredon who libel for salvage, to be not only groundless but impudent; for, besides 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 candour, 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 colours 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 favourable 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 onemies of their King. Joining in, or even setting on foot or promoting the recapture, (facts which rest Decree accordingly. DECREE. This cause came on to be heard on the transcript of the record of the Circuit Court for the District of Rhode Island, and was argued by counsel: on consideration whereof, it is ORDered and DECREED, that the Decree of the said Circuit Court in this case be, and the same is hereby affirmed, with costs, against Barnes and others, except so far as relates to the libel for salvage of Emanuel Rodriguez, Emanuel Josef, Emanuel Barbarus, An 1821. The Bello 1821, Smith V. The Univer tonio Josef, and Josef Isnages, who formed no part of the crew of the private armed brig Puyerredon; and as to so much of the said Decree as relates to sal Insurance the said libellants Emanuel Rodrigues and others, Company. it is further DECREED and ORDERED, by consent of parties, by their counsel, that the Decree of the said Circuit Court be, and the same is hereby reversed and annulled. And it is further ORDERED, that the said cause be remanded to the said Circuit Court for farther inquiry. And that the proceeds of the said Bello Corrunes and cargo lie in the Registry of the said Circuit Court, to be paid over, under the order of that Court, to the Spanish owners, as interest shall be made to appear. (INSURANCE.) SMITH et al. v. UNIVERSAL INSURANCE COMPANY. Where, in a policy of insurance, a technical total loss is asserted as the ground of recovery, the loss must be occasioned by the immediate operation of some of the perils insured against, and it is not sufficient that the voyage be abandoned for fear of the operation of the peril. The insurers do not undertake, that the voyage shall be performed without delay, or that the perils insured against shall not occur; they undertake only for losses sustained by those perils; and if any peril does begin to act upon the subject, yet if it be removed before any loss takes place, and the voyage is not thereby broken up, but is, or may be, resumed, the insured cannot abandon for a total loss. Insurance on munitions of war, laden on board a neutral vessel, on |