The opinion of the court was delivered,
It is fоr comparatively very few of the acts of our lives that the law prescribes any definite rule. It is satisfied, for most matters, with the gеneral direction to all to do the best they can, in whatever affair they may be engaged, in reasonable accordance with the customs of society in regard to it; and it approves, if the act done cannot be condemned when measured by the standard of ordinary care, diligence, faithfulness, and skill, and allows emulation and good conscience to surрass that standard as far as possible. This is a necessary concession to the variety of human character; and though it lеaves law largely
But the ordinary is not always the standard of duty; for often the law defines the very act, and even the form of it, that is to be done in given circumstances; and then there is no question of сare, skill, or negligence to be submitted to the .jury, but simply whether the acts, required or forbidden by the law, have been done. These viеws may help to draw the distinction between mere negligence, carelessness, or unskilfulness, and misconduct. It seems to us that, in usual parlance, when these terms are contradistinguished, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand; and that carelessness, negligence, and unskilfulnеss are transgressions of some established but indefinite rule of action, where some discretion is necessarily left to the aсtor. Misconduct is a violation of definite law; carelessness, an abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a • forbidden quality of an act, and is necessarily indefinite.
But we do not need that these views shall be taken as entirely accurate, in so far as we need them for appliсation to this case. The general thought is sufficient for us now. The transgression of positive and definite law is misconduct, though it may be also carelessness, for the law often defines some of the acts that are ■necessary to due care. And when the rеquisite act is defined by statute, it has the advantage of certainty to the very letter.
One of the purposes of insurance is tо protéct against losses by mere negligence and carelessness; but the misconduct of the insured is never insured against, and if it oсcasion a loss the owner must bear it. The misconduct of master and crew is often insured against, by the insurer taking the risk of barratry. If this be not expressly taken, the misconduct included under that term must be at the risk of the owner. Acts of barratry, therefore, will help us to understand misconduct, as distinguished from carelessness and negligence. It is a wrong against the
Barratry may take place by risking the safety or title of thе vessel by acts that are definitely forbidden by statute : such as leaving port contrary to an embargo, or in violation of revenue laws, or smuggling; or such as are contrary to other forms of definite right: as breaking a blockade, trading with the enemy, resistancе of right of search, cruising without leave, fraudulent deviation or stranding, deviation for the master’s profit, or cutting the ship’s cable, sо as to let her drift upon breakers. These acts would be barratry in the master, and if done by him are covered by the barratry clаuse. But if done with the consent of the insured they are not so covered. Of course they are not insured against when done by the оwner himself.
In our present case the insured was the master. His boat was running a race with another steamboat. To secure steam enough for this purpose he had a barrel of turpentine (oil of turpentine) brought out of the hold, and the head knocked out. It was placed in front of the’ furnace, and he used the turpentine on the wood and coal which was cast into the furnаce. While thus engaged, the fire of the furnace set fire to some of the wood that was saturated and ready for the furnaсe, and in attempting to remove the barrel it caught fire, and soon the vessel was in flames and was destroyed, and several livеs were lost.
These are the facts which the jury call gross negligence; they mean carelessness. They say it was not wilful misconduсt," but they do not mean by wilful that he did not intend to do those acts. And whether those acts constitute misconduct, the law, and not the jury, must deсide. If the law declares those acts such misconduct as endangers the safety of the boat, then the opinion of the jury is nоt needed, and must go for nothing.
The Act of Congress, passed 30th. of August 1853, has for its purpose to secure steamboats against fire, in оrder to secure the lives of passengers; and it provides that oil of turpentine, &c., shall be secured on such vessels in metаllic safes, or in apartments lined with metal at a secure distance from any fire. The acts done by the plaintiff were a рlain violation of this clear and definite rule of duty, and by this violation the loss happened, and the plaintiff, himself the transgressor, cannot recover. The fact of the race, which is never a proper purpose of a voyage, was not insistеd upon, and is not needed. But those who run such races had better study the effect of such conduct on their policies.
On the question of the title, we think the District Court decided rightly, and we perceive no other question that needs to be reviewed by us.
Judgment reversed, and a new trial awarded.