De exercitoria actione
(Concerning the action against the owner of a ship.)
1 Ulpianus libro vicensimo octavo ad edictum. Utilitatem huius edicti patere nemo est qui ignoret. nam cum interdum ignari, cuius sint condicionis vel quales, cum magistris propter navigandi necessitatem contrahamus, aequum fuit eum, qui magistrum navi imposuit, teneri, ut tenetur, qui institorem tabernae vel negotio praeposuit, cum sit maior necessitas contrahendi cum magistro quam institore. quippe res patitur, ut de condicione quis institoris dispiciat et sic contrahat: in navis magistro non ita, nam interdum locus tempus non patitur plenius deliberandi consilium. 1Magistrum navis accipere debemus, cui totius navis cura mandata est. 2Sed si cum quolibet nautarum sit contractum, non datur actio in exercitorem, quamquam ex delicto cuiusvis eorum, qui navis navigandae causa in nave sint, detur actio in exercitorem: alia enim est contrahendi causa, alia delinquendi, si quidem qui magistrum praeponit, contrahi cum eo permittit, qui nautas adhibet, non contrahi cum eis permittit, sed culpa et dolo carere eos curare debet. 3Magistri autem imponuntur locandis navibus vel ad merces vel vectoribus conducendis armamentisve emendis: sed etiamsi mercibus emendis vel vendendis fuerit praepositus, etiam hoc nomine obligat exercitorem. 4Cuius autem condicionis sit magister iste, nihil interest, utrum liber an servus, et utrum exercitoris an alienus: sed nec cuius aetatis sit, intererit, sibi imputaturo qui praeposuit. 5Magistrum autem accipimus non solum, quem exercitor praeposuit, sed et eum, quem magister: et hoc consultus Iulianus in ignorante exercitore respondit: ceterum si scit et passus est eum in nave magisterio fungi, ipse eum imposuisse videtur. quae sententia mihi videtur probabilis: omnia enim facta magistri debeo praestare qui eum praeposui, alioquin contrahentes decipientur: et facilius hoc in magistro quam institore admittendum propter utilitatem. quid tamen si sic magistrum praeposuit, ne alium ei liceret praeponere? an adhuc Iuliani sententiam admittimus, videndum est: finge enim et nominatim eum prohibuisse, ne Titio magistro utaris. dicendum tamen erit eo usque producendam utilitatem navigantium. 6Navem accipere debemus sive marinam sive fluviatilem sive in aliquo stagno naviget sive schedia sit. 7Non autem ex omni causa praetor dat in exercitorem actionem, sed eius rei nomine, cuius ibi praepositus fuerit, id est si in eam rem praepositus sit, ut puta si ad onus vehendum locatum sit aut aliquas res emerit utiles naviganti vel si quid reficiendae navis causa contractum vel impensum est vel si quid nautae operarum nomine petent. 8Quid si mutuam pecuniam sumpserit, an eius rei nomine videatur gestum? et Pegasus existimat, si ad usum eius rei, in quam praepositus est, fuerit mutuatus, dandam actionem, quam sententiam puto veram: quid enim si ad armandam instruendamve navem vel nautas exhibendos mutuatus est? 9Unde quaerit Ofilius, si ad reficiendam navem mutuatus nummos in suos usus converterit, an in exercitorem detur actio. et ait, si hac lege accepit quasi in navem impensurus, mox mutavit voluntatem, teneri exercitorem imputaturum sibi, cur talem praeposuerit: quod si ab initio consilium cepit fraudandi creditoris et hoc specialiter non expresserit, quod ad navis causam accipit, contra esse: quam distinctionem Pedius probat. 10Sed et si in pretiis rerum emptarum fefellit magister, exercitoris erit damnum, non creditoris. 11Sed si ab alio mutuatus liberavit eum, qui in navis refectionem crediderat, puto etiam huic dandam actionem, quasi in navem crediderit. 12Igitur praepositio certam legem dat contrahentibus. quare si eum praeposuit navi ad hoc solum, ut vecturas exigat, non ut locet (quod forte ipse locaverat), non tenebitur exercitor, si magister locaverit: vel si ad locandum tantum, non ad exigendum, idem erit dicendum: aut si ad hoc, ut vectoribus locet, non ut mercibus navem praestet, vel contra, modum egressus non obligabit exercitorem: sed et si ut certis mercibus eam locet, praepositus est, puta legumini, cannabae, ille marmoribus vel alia materia locavit, dicendum erit non teneri. quaedam enim naves onerariae, quaedam (ut ipsi dicunt) ἐπιβατηγοὶ sunt: et plerosque mandare scio, ne vectores recipiant, et sic, ut certa regione et certo mari negotietur, ut ecce sunt naves, quae Brundisium a Cassiopa vel a dyrrachio vectores traiciunt ad onera inhabiles, item quaedam fluvii capaces ad mare non sufficientes. 13Si plures sint magistri non divisis officiis, quodcumque cum uno gestum erit, obligabit exercitorem: si divisis, ut alter locando, alter exigendo, pro cuiusque officio obligabitur exercitor. 14Sed et si sic praeposuit, ut [ed. maior plerique] <ed. minor plerumque> faciunt, ne alter sine altero quid gerat, qui contraxit cum uno sibi imputabit. 15Exercitorem autem eum dicimus, ad quem obventiones et reditus omnes perveniunt, sive is dominus navis sit sive a domino navem per aversionem conduxit vel ad tempus vel in perpetuum. 16Parvi autem refert, qui exercet masculus sit an mulier, pater familias an filius familias vel servus: pupillus autem si navem exerceat, exigemus tutoris auctoritatem. 17Est autem nobis electio, utrum exercitorem an magistrum convenire velimus. 18Sed ex contrario exercenti navem adversus eos, qui cum magistro contraxerunt, actio non pollicetur, quia non eodem auxilio indigebat, sed aut ex locato cum magistro, si mercede operam ei exhibet, aut si gratuitam, mandati agere potest. solent plane praefecti propter ministerium annonae, item in provinciis praesides provinciarum extra ordinem eos iuvare ex contractu magistrorum. 19Si is, qui navem exercuerit, in aliena potestate erit eiusque voluntate navem exercuerit, quod cum magistro eius gestum erit, in eum, in cuius potestate is erit qui navem exercuerit, iudicium datur. 20Licet autem [ed. maior detur] <ed. minor datur> actio in eum, cuius in potestate est qui navem exercet, tamen ita demum datur, si voluntate eius exerceat. ideo autem ex voluntate in solidum tenentur qui habent in potestate exercitorem, quia ad summam rem publicam navium exercitio perinet. at institorum non idem usus est: ea propter in tributum dumtaxat vocantur, qui contraxerunt cum eo, qui in merce peculiari sciente domino negotiatur. sed si sciente dumtaxat, non etiam volente cum magistro contractum sit, utrum quasi in volentem damus actionem in solidum an vero exemplo tributoriae dabimus? in re igitur dubia melius est verbis edicti servire et neque scientiam solam et nudam patris dominive in navibus onerare neque in peculiaribus mercibus voluntatem extendere ad solidi obligationem. et ita videtur et Pomponius significare, si sit in aliena potestate, si quidem voluntate gerat, in solidum eum obligari, si minus, in peculium. 21In potestate autem accipiemus utriusque sexus vel filios vel filias vel servos vel servas. 22Si tamen servus peculiaris volente filio familias in cuius peculio erat, vel servo vicarius eius navem exercuit, pater dominusve, qui voluntatem non accommodavit, dumtaxat de peculio tenebitur, sed filius ipse in solidum. plane si voluntate domini vel patris exerceant, in solidum tenebuntur et praeterea et filius, si et ipse voluntatem accommodavit, in solidum erit obligatus. 23Quamquam autem, si cum magistro eius gestum sit, dumtaxat polliceatur praetor actionem, tamen, ut Iulianus quoque scribsit, etiamsi cum ipso exercitore sit contractum, pater dominusve in solidum tenebitur. 24Haec actio ex persona magistri in exercitorem dabitur, et ideo, si cum utro eorum actum est, cum altero agi non potest. sed si quid sit solutum, si quidem a magistro, ipso iure minuitur obligatio: sed et si ab exercitore, sive suo nomine, id est propter honorariam obligationem, sive magistri nomine solverit, minuetur obligatio, quoniam et alius pro me solvendo me liberat. 25Si plures navem exerceant, cum quolibet eorum in solidum agi potest,
1 Ulpianus, On the Edict, Book XXVIII. There is no one who is ignorant of the benefit of this Edict, for sometimes we enter into agreements with the masters of vessels concerning the necessities of the voyage, without being aware of their civil status or character; and it was only just that the party who appointed the master of a ship should be liable, just as one who has placed an agent in charge of a shop or a business; since, in fact, there is greater necessity in making the contract with the master than with an ordinary agent, as circumstances permit anyone to make an investigation of the standing of an agent, and contract with him accordingly; but this is not the case with a master of a ship, for frequently neither the place nor the time permits a satisfactory decision to be reached. 1We must understand the master of a ship to be a person to whom the charge of the entire ship is committed. 2But if the contract is made with one of the sailors, an action will not be granted against the ship-owner; although one will be granted against him on account of any offence perpetrated by one of those who are on board the vessel for the purpose of navigating the same; for the cause of action on a contract is one thing, and that arising out of an offence is another; since the party who appoints a master permits contracts to be made with him, but he who employs sailors does not allow contracts to be made with them, but he should take care that they are not guilty of negligence or fraud. 3Masters are appointed for the purpose of leasing vessels either for the transportation of merchandise or of passengers, or for the purpose of buying stores, but if a master is appointed for the purchase or sale of merchandise, he will render the owner liable also on this ground. 4It makes no difference what the civil condition of such a master is, whether he is free or a slave, and whether, if he is a slave, he belongs to the owner or to another person, nor will it make any difference what his age is, as the party who appointed him has himself only to blame. 5We consider the master to be not only the person whom the owner appointed, but also him whom a master appointed; and Julianus, having been consulted with reference to this matter, gave this opinion in a case where the owner was ignorant of the appointment; where, however, he knows of it, and allows the individual designated to discharge the duties of the master of the ship, he himself is held to have appointed him. This opinion seems to me to be reasonable; for he who appointed him must be responsible for all the acts of the master, otherwise, the contracting parties will be deceived; and this should be admitted the more readily for the sake of the public welfare in the case of a master than in that of another agent. How then if the owner appointed the master in such a way that the latter would not be permitted to appoint anyone else; should it be considered whether we ought to admit the opinion of Julianus in this instance? For suppose he expressly forbade him as follows, “You shall not employ Titius as master.” It must be said, however, that the welfare of those who make use of ships demands that the rule should be applied to this extent. 6We must understand the word “ship” to mean vessels and even rafts, employed for navigating the sea, rivers, or lakes. 7The Prætor does not grant a right of action against an owner for every cause, but only with reference to the particular thing for which the master was appointed; that is to say, if he was appointed for a certain kind of business, for instance, where a contract was made for the transportation of merchandise; or where an agreement was entered into or money expended for the purpose of repairing the ship; or where the sailors demand payment on account of their services. 8What if the master should borrow a sum of money, will this be held to be included in his powers? Pegasus thinks that if he borrowed the money with reference to the matter for which he was appointed, an action should be granted, and this opinion I think to be correct; but what if he borrowed it for the purpose of equipping or fitting out the ship, or for the employment of sailors? 9Wherefore, Ofilius asked if the master borrows the money for the purpose of repairing the ship, and converts it to his own use, will an action be granted against the owner? He says that if he received it with the understanding that he would expend it on the ship, and afterwards changed his mind, the owner will be liable, and can only blame himself for appointing a person of this kind. If, however, from the very beginning, he had the intention to defraud the creditor, and did not expressly state that he received the money on account of the ship, the contrary rule will apply. Pedius approves of this distinction. 10Where, however, the master is guilty of deceit with reference to the price of things which are purchased, the owner, and not the creditor, must suffer the loss. 11Moreover, where the master borrows money from another party, and with it satisfies the claim of him who lent him money for the purpose of repairing the ship; I think an action should be granted to the first-mentioned creditor, just as if he had lent the money to be expended on the ship. 12Therefore, the appointment prescribes certain terms to be observed by the contracting parties; and hence if the owner appointed the master of the ship only for the purpose of collecting the freight, and not that he might lease the ship, (although he may have actually leased it) the owner will not be liable if the master did this; and the same rule will apply where it was understood that he could only lease the ship but could not collect the freight; or if he was appointed for the purpose of contracting with passengers but not to offer the use of the ship for merchandise, or vice versa; then, if he exceeds his instructions, he will not bind the owner. But if the master was appointed only to lease the ship for the transportation of certain merchandise, for instance, vegetables, or hemp, and he should lease it to transport marble or other materials, it must be held that he will not be bound. For certain ships are designed for freight and others (as is generally stated) are for the transportation of passengers, and I know that a great many owners give directions not to transport passengers, and also that business must be transacted only in certain regions and in certain waters; for example, there are ships which carry passengers to Brundisium from Cassiopa or from Dyrrachium, but are not adapted for freight, and some also are adapted to river navigation, but are not suitable for the sea. 13Where several masters are appointed, and their duties are not divided, any transaction entered into with one of them will bind the owner; but if their separate duties are designated, as, for instance, one has charge of leasing the vessel, and another is to collect freight, then the owner will be bound by the acts of any one of them provided he is in the discharge of his duty. 14If, however, the party made the appointment, as is often done, in such a way that one of them is not to transact any business without the other, he who contracts with one alone will only have himself to blame. 15When we make use of the word “exercitor,” we understand by it the party into whose hands all receipts and payments come, whether he is the owner of the ship, or whether he has leased it from the owner for a fixed amount for a certain time, or permanently. 16It makes but little difference whether the party who has control of the ship is a man or a woman, the head of a household, a son under paternal control, or a slave; but for a ward to have control of a ship we require the consent of his guardian to be granted. 17We have also the choice whether we would prefer to sue the person having control of the ship, or the master of the same. 18But, on the other hand, an action is not promised by the Prætor against those who contracted with the master, because he did not need the same assistance; he can, however, sue the master on the contract of hiring, if he is furnishing his labor for compensation; or, if he is doing this gratuitously, he can bring an action of mandate against him. It is clear that the prefects, on account of the administration of supplies, and, in the province, the Governors, who are accustomed to aid them by the exertion of extraordinary powers, can do so where contracts are made by the masters of vessels. 19If the party who has control of a ship is in the power of another, and manages the vessel with his consent, an action will be granted on account of business transacted with the master, against the party in whose power he is who has the management of the ship. 20But although an action is granted against the person under whose control he is who has the management of a ship, still, this is only done where he acts with the consent of the latter. Therefore, those who have control of the party having the management are liable for the entire amount, on account of their consent; because the ownership of vessels is a matter of the greatest importance to the public welfare. The employment of agents is not so advantageous, for the reason that they who have transacted business, with a knowledge of the owner, using capital belonging to the peculium, only have a right to their share in the distribution of the same. But if the owner was only aware of the fact, and did not give his consent when the contract was made with the master, shall we grant a right of action for the entire amount, as in the case where the party consented; or shall we only give one resembling the tributorian action? Therefore, the question being doubtful, it is better to adhere strictly to the words of the Edict, and not make the mere knowledge of the father or master in the case of ships an excuse for oppression, nor, in the case of merchandise purchased with the money of the peculium, extend mere consent so as to cause an obligation to be contracted for the entire amount. Pomponius also seems to indicate adherence to the principle that where one person is under the control of another and carries on business with his consent, he will be liable for the entire amount, but if he does not, that he will only be liable for the amount of the peculium. 21We must understand the term “under the control” to apply to both sexes, sons and daughters, and male and female slaves. 22Where a slave, who is part of a peculium, acts as the manager of a ship with the consent of a son under paternal control of whose peculium he forms a part, or where, a sub-slave manages a ship with the consent of the latter, the father or master who did not give his consent will only be liable for the amount of the peculium, but the son himself will be liable in full. It is clear if they manage the ship with the consent of the master or father, they will be liable for the entire amount, and, moreover, the son, if he gave his consent, will also be liable in full. 23But, although the Prætor only promises the action where the business is transacted with the master of the ship, still, (as Julianus has stated) the father or the master will be liable in full, even though the contract was entered into with the manager of the ship himself. 24This action is granted against the owner on account of the master of the ship, and therefore if suit has been brought against either of them, none can be brought against the other; but if any of the money has been paid, and this has been done by the master, the obligation is diminished by operation of law. If, however, it was paid by the manager in his own behalf, that is on account of the honorary obligation, or is paid in behalf of the master, the obligation is diminished; since where another party pays for me he releases me from the debt. 25Where several parties have joint-ownership of a vessel, suit can be brought against any one of them for the entire amount;
2 Gaius libro nono ad edictum provinciale. ne in plures adversarios distringatur qui cum uno contraxerit:
2 Gaius, On the Provincial Edict, Book IX. In order that a person who contracted with one may not be obliged to divide his claim among several adversaries,
3 Paulus libro vicensimo nono ad edictum. nec quicquam facere, quotam quisque portionem in nave habeat, eumque qui praestiterit societatis iudicio a ceteris consecuturum.
3 Paulus, On the Edict, Book XXIX. Nor does it make any difference what share each of them has in the vessel, for the party who paid will recover from the others in the action on partnership.
4 Ulpianus libro vicensimo nono ad edictum. Si tamen plures per se navem exerceant, pro portionibus exercitionis conveniuntur: neque enim invicem sui magistri [ed. maior videbuntur] <ed. minor videntur>. 1Sed si plures exerceant, unum autem de numero suo magistrum fecerint, huius nomine in solidum poterunt conveniri. 2Sed si servus plurium navem exerceat voluntate eorum, idem placuit quod in pluribus exercitoribus. plane si unius ex omnibus voluntate exercuit, in solidum ille tenebitur, et ideo puto et in superiore casu in solidum omnes teneri. 3Si servus sit, qui navem exercuit voluntate domini, et alienatus fuerit, nihilo minus is qui eum alienavit tenebitur. proinde et si decesserit servus, tenebitur: nam et magistro defuncto tenebitur. 4Hae actiones perpetuo et heredibus et in heredes dabuntur: proinde et si servus, qui voluntate domini exercuit, decessit, etiam post annum dabitur haec actio, quamvis de peculio ultra annum non detur.
4 Ulpianus, On the Edict, Book XXIX. Where, however, several persons have the management of a ship between them, they must be sued in proportion to their shares in the same, for they are not regarded as masters for one another. 1Where several persons having the management of a ship appoint one of their number to be the master, they can be sued on his account for the entire claim. 2Where a slave belonging to several persons manages a ship with their consent, the same rule applies as where there are several managers. For it is clear that if he acted with the consent of any one of them, the latter will be liable for the entire amount; and therefore I think that in the case above mentioned all of them are liable in full. 3If a slave who had control of a ship with the consent of his owner should be alienated, the party who alienated him will, nevertheless, be liable. Hence he would also be liable if the slave should die, for the owner of the ship will be liable after the death of the master. 4These actions are granted without limitation of time both in the favor of heirs, and against them. Hence, if a slave who has control of a ship with the consent of his master should die, this action will be granted after the expiration of a year, although an action De peculio is not granted after a year has elapsed.
5 Paulus libro vicensimo nono ad edictum. Si eum, qui in mea potestate sit, magistrum navis habeas, mihi quoque in te competit actio, si quid cum eo contraxero: idem est, si communis servus nobis erit. ex locato tamen mecum ages, quod operas servi mei conduxeris, quia et si cum alio contraxisset, ageres mecum, ut actiones, quas eo nomine habui, tibi praestarem, quemadmodum cum libero, si quidem conduxisses, experieris: quod si gratuitae operae fuerint, mandati ages. 1Item si servus meus navem exercebit et cum magistro eius contraxero, nihil obstabit, quo minus adversus magistrum experiar actione, quae mihi vel iure civili vel honorario competit: nam et cuivis alii non obstat hoc edictum, quo minus cum magistro agere possit: hoc enim edicto non transfertur actio, sed adicitur. 2Si unus ex his exercitoribus cum magistro navis contraxerit, agere cum aliis exercitoribus poterit,
5 Paulus, On the Edict, Book XXIX. If you have, as the master of your ship, someone who is under my control, an action will also lie in my favor against you if I enter into any contract with him. The same rule applies where he is owned in common by us. You will, however, be entitled to an action on lease against me, because you hired the services of my slave, as, even if he had contracted with another, you could proceed against me to obtain a transfer of the rights of action which I held on his account, just as you could have done against a freedman had you employed one; but if the services were gratuitous, you can bring an action on mandate. 1Moreover, if my slave has control of a ship, and I make a contract with his shipmaster, there will be nothing to prevent me from instituting proceedings against the shipmaster by an action which I can bring either under Civil or Prætorian Law; for this edict does not prevent anyone from suing the master, as no action is transferred by this edict, but one is added. 2Where one of the owners of a ship makes a contract with the master, he can bring an action against the others.
6 Paulus libro sexto brevium. Si servus non voluntate domini navem exercuerit, si sciente eo, quasi tributoria, si ignorante, de peculio actio dabitur. 1Si communis servus voluntate dominorum exerceat navem, in singulos dari debebit in solidum actio.
6 Paulus, Abridgments, Book VI. Where a slave has control of a ship without the consent of his master, if he is aware of this, a tributorian action will be granted; but if he is ignorant of the fact, an action De peculio will be available. 1Where a slave owned in common has control of a ship with the consent of his masters, an action for the entire amount will be granted against them individually.
7 Africanus libro octavo quaestionum. Lucius Titius Stichum magistrum navis praeposuit: is pecuniam mutuatus cavit se in refectionem navis eam accepisse: quaesitum est, an non aliter Titius exercitoria teneretur, quam si creditor probaret pecuniam in refectionem navis esse consumptam. respondit creditorem utiliter acturum, si, cum pecunia crederetur, navis in ea causa fuisset, ut refici deberet: etenim ut non oportet creditorem ad hoc adstringi, ut ipse reficiendae navis curam suscipiat et negotium domini gerat (quod certe futurum sit, si necesse habeat probare pecuniam in refectionem erogatam esse), ita illud exigendum, ut sciat in hoc se credere, cui rei magister quis sit praepositus, quod certe aliter fieri non potest, quam si illud quoque scierit necessariam refectioni pecuniam esse: quare etsi in ea causa fuerit navis, ut refici deberet, multo tamen maior pecunia credita fuerit, quam ad eam rem esset necessaria, non debere in solidum adversus dominum navis actionem dari. 1Interdum etiam illud aestimandum, an in eo loco pecunia credita sit, in quo id, propter quod credebatur, comparari potuerit: quid enim, inquit, si ad velum emendum in eiusmodi insula pecuniam quis crediderit, in qua omnino velum comparari non potest? et in summa aliquam diligentiam in ea creditorem debere praestare. 2Eadem fere dicenda ait et si de institoria actione quaeratur: nam tunc quoque creditorem scire debere necessariam esse mercis comparationem, cui emendae servus sit praepositus, et sufficere, si in hoc crediderit, non etiam illud exigendum, ut ipse curam suscipiat, an in hanc rem pecunia eroganda est.
7 Africanus, Questions, Book VIII. Lucius Titius appointed Stichus the master of a ship, and he, having borrowed money, stated that he received it for the purpose of repairing the ship. The question arose whether Titius was liable to an action on this ground only where the creditor proved that the money had been expended for the repair of the ship? The answer was that the creditor could properly bring an action if, when the money was lent, the ship was in such a condition as to need repairs; for, while the creditor should not be compelled to, himself, undertake the repair of the ship, and transact the business of the owner (which would certainly be the case if he was required to show that the money had been spent for repairs); still, it should be required of him that he know that he makes the loan for the purpose for which the master was appointed; and this certainly could not happen unless he also knew that the money was needed for repairs. Wherefore, even though the ship was in such a condition as to need repairs, still, if much more money was lent than was necessary for that purpose, an action for the entire amount should not be granted against the owner of the ship. 1Sometimes it should be considered whether the money was lent in a place in which that for which it was advanced could be obtained; for, as Africanus says, what would be the case if someone lent money for the purchase of a sail in an island of such a description that a sail could not be obtained there under any circumstances? And, in general, a creditor is obliged to exercise some care in the transaction. 2Almost the same rule applies where inquiry is made with reference to the institorian action; for, in this instance also, the creditor must know that the purchase of the merchandise for which the slave was appointed was necessary; and it will be sufficient if he made the loan to this end, but it should not also be required that he should himself undertake the task of ascertaining whether the money was spent for this purpose. The principle of tenancy in common extends not only to the ship but also to the cargo, unless otherwise provided for; the master, being regarded as the confidential agent of the owners, is held to be tacitly invested with authority to bind them without their consent in all matters having reference to the general management and navigation of the ship; a rule of unknown antiquity, but which is obviously derived from the earliest ages of commercial intercourse. He is personally liable for his contracts, from which responsibility, however, he may obtain exemption by special agreement. As in the case of a part-owner, he can sell or hypothecate all, or a portion of the cargo, as well as the ship, if any sudden against the others whose merchandise was saved, so that the loss may be distributed proportionally. Servius, indeed, answered that they should proceed against the master of the ship under the contract for transportation to compel him to return the merchandise of the others, until they make good their share of the loss. Even though the master does retain the merchandise, he will, in any event, be entitled to an action under the contract for transportation against the passengers.