De lege [Rodia] <Rhodia> de iactu
(Concerning the Rhodian Law of jettison.)
1 Paulus libro secundo sententiarum. Lege [ed. maior Rodia] <ed. minor Rhodia> cavetur, ut si levandae navis gratia iactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est.
1 Paulus, Sentences, Book II. It is provided by the Rhodian Law that where merchandise is thrown overboard for the purpose of lightening a ship, what has been lost for the benefit of all must be made up by the contribution of all.
2 Idem libro trigensimo quarto ad edictum. Si laborante nave iactus factus est, amissarum mercium domini, si merces vehendas locaverant, ex locato cum magistro navis agere debent: is deinde cum reliquis, quorum merces salvae sunt, ex conducto, ut detrimentum pro portione communicetur, agere potest. Servius quidem respondit ex locato agere cum magistro navis debere, ut ceterorum vectorum merces retineat, donec portionem damni praestent. immo etsi <ed. minor non> retineat merces magister, ultro ex locato habiturus est actionem cum vectoribus: quid enim si vectores sint, qui nullas sarcinas habeant? plane commodius est, si sint, retinere eas. at si non totam navem conduxerit, ex conducto aget, sicut vectores, qui loca in navem conduxerunt: aequissimum enim est commune detrimentum fieri eorum, qui propter amissas res aliorum consecuti sunt, ut merces suas salvas haberent. 1Si conservatis mercibus deterior facta sit navis aut si quid exarmaverit, nulla facienda est collatio, quia dissimilis earum rerum causa sit, quae navis gratia parentur et earum, pro quibus mercedem aliquis acceperit: nam et si faber incudem aut malleum fregerit, non imputaretur ei qui locaverit opus. sed si voluntate vectorum vel propter aliquem metum id detrimentum factum sit, hoc ipsum sarciri oportet. 2Cum in eadem nave varia mercium genera complures mercatores coegissent praetereaque multi vectores servi liberique in ea navigarent, tempestate gravi orta necessario iactura facta erat: quaesita deinde sunt haec: an omnes iacturam praestare oporteat et si qui tales merces imposuissent, quibus navis non oneraretur, velut gemmas margaritas? et quae portio praestanda est? et an etiam pro liberis capitibus dari oporteat? et qua actione ea res expediri possit? placuit omnes, quorum interfuisset iacturam fieri, conferre oportere, quia id tributum observatae res deberent: itaque dominum etiam navis pro portione obligatum esse. iacturae summam pro rerum pretio distribui oportet. corporum liberorum aestimationem nullam fieri posse. ex conducto dominos rerum amissarum cum nauta, id est cum magistro acturos. itidem agitatum est, an etiam vestimentorum cuiusque et anulorum aestimationem fieri oporteat: et omnium visum est, nisi si qua consumendi causa imposita forent, quo in numero essent cibaria: eo magis quod, si quando ea defecerint in navigationem, quod quisque haberet in commune conferret. 3Si navis a piratis redempta sit, Servius Ofilius Labeo omnes conferre debere aiunt: quod vero praedones abstulerint, eum perdere cuius fuerint, nec conferendum ei, qui suas merces redemerit. 4Portio autem pro aestimatione rerum quae salvae sunt et earum quae amissae sunt praestari solet, nec ad rem pertinet, si hae quae amissae sunt pluris veniri poterunt, quoniam detrimenti, non lucri fit praestatio. sed in his rebus, quarum nomine conferendum est, aestimatio debet haberi non quanti emptae sint, sed quanti venire possunt. 5Servorum quoque qui in mare perierunt non magis aestimatio facienda est, quam si qui aegri in nave decesserint aut aliqui sese praecipitaverint. 6Si quis ex vectoribus solvendo non sit, hoc detrimentum magistri navis non erit: nec enim fortunas cuiusque nauta excutere debet. 7Si res quae iactae sunt apparuerint, exoneratur collatio: quod si iam contributio facta sit, tunc hi qui solverint agent ex locato cum magistro, ut is ex conducto experiatur et quod exegerit reddat. 8Res autem iacta domini manet nec fit adprehendentis, quia pro derelicto non habetur.
2 The Same, On the Edict, Book XXXIV. What is to be done if there are passengers who have no baggage? It evidently will be more convenient to retain their baggage, if there is any; but if there is not, and the party has leased the entire ship, an action can be brought on the contract, just as in the case of passengers who have rented places on a ship; for it is perfectly just that the loss should be partially borne by those who, by the destruction of the property of others, have secured the preservation of their own merchandise. 1If the merchandise is saved, and the ship is damaged, or has lost part of her equipment, no contribution should be made, for the condition of the things provided for the use of the ship is different from that on account of which the freight has been received; since, if a blacksmith breaks an anvil or a hammer, this will not be charged to him who hired him to do the work. Where, however, the loss occurred with the consent of the passengers, or on account of their fear, it must be made good. 2Where several merchants collect different kinds of goods in the same ship, and, in addition, many passengers, both slaves and freemen, are travelling in it, and a great storm arises, and part of the cargo is necessarily thrown overboard; the question was with respect to the following point, namely, whether it was necessary for all to make good what was thrown overboard; and whether this must also be done by those who had brought on board such merchandise as did not burden the ship; as, for instance, precious stones and pearls, and if this was the case, what portion of the same must be contributed; and whether it was necessary for anything to be paid for freemen, and by what kind of an action proceedings could be instituted? It was held that all those to whose interest it was that the goods should be thrown overboard must contribute, because they owed that contribution on account of the preservation of their property, and therefore even the owner of the ship was liable for his share. The amount of the loss must be distributed in proportion to the value of the property; no appraisement can be made of the persons of freemen; and the owners of the lost property have a right to proceed on the contract for transportation against the sailor, that is the master. An agreement also arose as to whether an estimate was to be made of the clothing and rings of each person, and it was held that this should be done, and that everything should be taken into account for contribution, except what had been brought on board for the purpose of consumption, in which would be included all kinds of provisions; and there is all the more reason in this, for if, at any time during the voyage, such articles should be lacking, each one would contribute what he possessed to the common stock. 3If the ship has been ransomed from pirates Servius, Ofilius, and Labeo state that all should contribute; but with reference to what the robbers carried away, the loss must be borne by the party to whom it belonged, and no contribution should be made to him who ransomed his property. 4The share is generally contributed in accordance with the valuation of the property which is saved, and of that which is lost; and it makes no difference if that which was lost might have been sold for a higher price, since the contribution relates to loss and not to profit. With reference, however, to those things on account of which contribution must be made, the estimate should be based upon not what they had been purchased for, but upon what they could be sold for. 5No estimate should be made of slaves who are lost at sea, any more than where those who are ill die on the ship, or throw themselves overboard. 6If any of the passengers should be insolvent, the loss resulting from this will not be suffered by the master of the vessel; for a sailor is not obliged to inquire into the financial resources of everybody. 7Where property which has been thrown overboard is recovered, the necessity for contribution is at an end; but if it has already been made, then those who had paid can bring an action on the contract for transportation against the master, and he can proceed under the one for hiring, and return what he recovers. 8Any articles thrown overboard belong to the owner of the same, and do not become the property of him who obtains them, because they are not considered as abandoned.
3 Papinianus libro nono decimo responsorum. Cum arbor aut aliud navis instrumentum removendi communis periculi causa deiectum est, contributio debetur.
3 Papinianus, Opinions, Book XIX. Where a mast, or any other part of the equipment of a ship is thrown overboard for the purpose of removing a danger common to all, contribution is required.
4 Callistratus libro secundo quaestionum. Navis onustae levandae causa, quia intrare flumen vel portum non potuerat cum onere, si quaedam merces in scapham traiectae sunt, ne aut extra flumen periclitetur aut in ipso ostio vel portu, eaque scapha summersa est, ratio haberi debet inter eos, qui in nave merces salvas habent, cum his qui in scapha perdiderunt, proinde tamquam si iactura facta esset: idque Sabinus quoque libro secundo responsorum probat. contra si scapha cum parte mercium salva est, navis periit, ratio haberi non debet eorum, qui in nave perdiderunt, quia iactus in tributum nave salva venit. 1Sed si navis, quae in tempestate iactu mercium unius mercatoris levata est, in alio loco summersa est et aliquorum mercatorum merces per urinatores extractae sunt data mercede, rationem haberi debere eius, cuius merces in navigatione levandae navis causa iactae sunt, ab his, qui postea sua per urinatores servaverunt, Sabinus aeque respondit. eorum vero, qui ita servaverunt, invicem rationem haberi non debere ab eo, qui in navigatione iactum fecit, si quaedam ex his mercibus per urinatores extractae sunt: eorum enim merces non possunt videri servandae navis causa iactae esse, quae perit. 2Cum autem iactus de nave factus est et alicuius res, quae in navi remanserunt, deteriores factae sunt, videndum, an conferre cogendus sit, quia non debet duplici damno onerari et collationis et quod res deteriores factae sunt. sed defendendum est hunc conferre debere pretio praesente rerum: itaque verbi gratia si vicenum merces duorum fuerunt et alterius aspargine decem esse coeperunt, ille cuius res integrae sunt pro viginti conferat, hic pro decem. potest tamen dici etiam illa sententia distinguentibus nobis, deteriores ex qua causa factae sunt, id est utrum propter iacta nudatis rebus damnum secutum est an vero alia ex causa, veluti quod alicubi iacebant merces in angulo aliquo et unda penetravit. tunc enim conferre debebit: an ex priore causa collationis onus pati non debet, quia iactus etiam hunc laesit? adhuc numquid et si aspargine propter iactum res deteriores factae sunt? sed distinctio suptilior adhibenda est, quid plus sit, in damno an in collatione: si verbi gratia hae res viginti fuerunt et collatio quidem facit decem, damnum autem duo, deducto hoc, quod damnum passus est, reliquum conferre debeat. quid ergo, si plus in damno erit quam in collatione? ut puta decem aureis res deteriores factae sunt, duo autem collationis sunt. indubitate utrumque onus pati non debet: sed hic videamus, num et ipsi conferre oporteat. quid enim interest iactatas res meas amiserim an nudatas deteriores habere coeperim: nam sicut ei qui perdiderit subvenitur, ita et ei subveniri oportet, qui deteriores propter iactum res habere coeperit. haec ita Papirius Fronto respondit.
4 Callistratus, Questions, Book II. If, for the purpose of lightening an overloaded ship because she could not enter a river or reach a harbor with her cargo, a certain portion of the merchandise is placed in a boat to prevent the vessel from being in danger outside the river, or at the entrance of the harbor, or in the latter, and the boat is sunk, an account should be taken between those who have their merchandise preserved on the ship and those who lost theirs in the boat, just as if the latter had been thrown overboard. Sabinus also adopts this view in the Second Book of Opinions. On the other hand, if the boat is saved with part of the merchandise, and the ship is lost, no account should be taken with reference to those who lost their property in the ship, because jettison necessitates contribution only where the ship is saved. 1But where a ship, which has been lightened in a storm by throwing overboard the goods of a merchant, is sunk in some other place, and the goods of certain merchants are recovered by divers for compensation; Sabinus also says an account must be taken between the party whose goods were thrown overboard during the voyage for the purpose of lightening the ship, and those who subsequently recovered their goods by means of divers. But, on the other hand, no account must be presented by the party whose merchandise was thrown overboard during the voyage to those whose merchandise was not thereby preserved, if any of it was recovered by divers; for it cannot be held to have been thrown overboard for the purpose of saving the ship which was lost. 2But where jetsam is made from the ship, and the merchandise of anyone which remained on board, is damaged; it is a matter for consideration whether he should be compelled to contribute, since he ought not to be oppressed by the double loss of contribution and deterioration of his property. The point, however, may be maintained that he should contribute in proportion to the present value of his property. Thus, for example, where the merchandise of two persons was each worth twenty aurei, and that of one of them became only worth ten, on account of having been wet; the party whose property was not damaged should contribute in the proportion of twenty and the other in the proportion of ten. An opinion can, however, be given in this instance, if we make a distinction as to the cause of the deterioration; that is to say, whether the damage resulted on account of the exposure resulting from throwing the merchandise overboard, or for some other cause; for example, where the merchandise lay somewhere in a corner, and the waves reached it. In this instance the owner will be compelled to contribute, but in the former one, ought he not to be released from the burden of contribution because the jetsam also injured him? Or ought he to be liable even if his goods were deteriorated by the splashing of water on account of the jetsam? A still finer distinction should be made, namely, as to whether the greater loss is sustained through the damage, or through the contribution; for example, if the merchandise is worth twenty aurei, and the contribution is assessed at ten, the damage, however, amounts to two, and this having been deducted because of the loss, must the owner contribute the remainder? How then if the damage amounted to more than the contribution? For example, if the property was damaged to the amount of ten aurei, and the contribution amounted to two, there is no doubt that the party should not bear both burdens. But here let us see whether a contribution should not be made to him; for what difference does it make whether I lose my property by its being thrown overboard, or have it deteriorated by being exposed? For just as relief is granted to a party for the loss of his property, so, also, it should be granted to him whose property has become deteriorated on account of the jetsam. Papirius Fronto also stated this in an opinion.
5 Hermogenianus libro secundo iuris epitomarum. Amissae navis damnum collationis consortio non sarcitur per eos, qui merces suas naufragio liberaverunt: nam huius aequitatem tunc admitti placuit, cum iactus remedio ceteris in communi periculo salva navi consultum est. 1Arbore caesa, ut navis cum mercibus liberari possit, aequitas contributionis habebit locum.
5 Hermogeniamis, Epitomes of Law, Book II. The contribution of those who saved their merchandise from shipwreck does not indemnify anyone for the loss of the vessel; for it is held that the equity of this contribution is only admitted when, by the remedy of jetsam, during the common danger, the interest of the others is consulted, and the ship is saved. 1If the mast is cut away in order that the ship with its merchandise may be freed from danger, there will be an equitable claim for contribution.
6 Iulianus libro octagensimo sexto digestorum. Navis adversa tempestate depressa ictu fulminis deustis armamentis et arbore et antemna hipponem delata est ibique tumultuariis armamentis ad praesens comparatis ostiam navigavit et onus integrum pertulit: quaesitum est, an hi, quorum onus fuit, nautae pro damno conferre debeant. respondit non debere: hic enim sumptus instruendae magis navis, quam conservandarum mercium gratia factus est.
6 Julianus, Digest, Book LXXXVI. A ship beaten by a storm and with her rigging, mast, and yards burned by lightning, was carried into Hippo. Having been provided while there with a hasty and temporary equipment, she sailed for Ostia, and discharged her cargo uninjured. The question was asked whether those to whom the cargo belonged were obliged to contribute to the master of the ship in proportion to the loss? The answer was that they were not obliged to do so, as the expense was incurred rather for the purpose of equipping the ship, than to preserve the cargo.
7 Paulus libro tertio epitomarum Alfeni digestorum. Cum depressa navis aut deiecta esset, quod quisque ex ea suum servasset, sibi servare respondit, tamquam ex incendio.
7 Paulus, Epitomes of the Digest of Alfenus, Book III. Where a ship is sunk or stranded, the opinion was given that whatever each one saves out of his own property he can keep for himself, just as in case of fire.
8 Iulianus libro secundo ex Minicio. Qui levandae navis gratia res aliquas proiciunt, non hanc mentem habent, ut eas pro derelicto habeant, quippe si invenerint eas, ablaturos et, si suspicati fuerint, in quem locum eiectae sunt, requisituros: ut perinde sint, ac si quis onere pressus in viam rem abiecerit mox cum aliis reversurus, ut eandem auferret.
8 Julianus, On Minicius, Book II. Those who throw any property overboard for the purpose of lightening a ship, do not intend to consider it as abandoned; since if they should find it they can carry it away, and if they have any idea of the place where it has been cast by the sea, they can claim it; so that they are in the same condition as anyone who oppressed by a burden throws it down on the road, expecting to return presently with others and remove it.
9 Volusius Maecianus ex lege Rhodia. Ἀξίωσις Εὐδαίμονος Νικομηδέως πρὸς Ἀντωνῖνον βασιλέα· Κύριε βασιλεῦ Ἀντωνῖνε, ναυφράγιον ποιήσαντες ἐν τῇ Ἰταλίᾳ διηρπάγημεν ὑπὸ τῶν δημοσίων τῶν τὰς Κυκλάδας νήσους οἰκούντων. Ἀντωνῖνος εἶπεν Εὐδαίμονι· ἐγὼ μὲν τοῦ κόσμου κύριος, ὁ δὲ νόμος τῆς θαλάσσης. τῷ νόμῳ τῶν Ῥοδίων κρινέσθω τῷ ναυτικῷ, ἐν οἷς μήτις τῶν ἡμετέρων αὐτῷ νόμος ἐναντιοῦται. τοῦτο δὲ αὐτὸ καὶ ὁ θειότατος Αὔγουστος ἔκρινεν.
9 Volusius Marcianus, On the Rhodian Law. A petition of Eudaimon of Nicomedia to the Emperor Antoninus; “Lord Emperor Antoninus, having been shipwrecked in Icaria we have been robbed by farmers of the revenue inhabiting the Cyclades Islands.” Antoninus answered Eudaimon as follows: “I am, indeed, the Lord of the World, but the Law is the Lord of the sea; and this affair must be decided by the Rhodian law adopted with reference to maritime questions, provided no enactment of ours is opposed to it.” The Divine Augustus established the same rule.
10 Labeo libro primo pithanon a Paulo epitomatorum. Si vehenda mancipia conduxisti, pro eo mancipio, quod in nave mortuum est, vectura tibi non debetur. Paulus: immo quaeritur, quid actum est, utrum ut pro his qui impositi an pro his qui deportati essent, merces daretur: quod si hoc apparere non poterit, satis erit pro nauta, si probaverit impositum esse mancipium. 1Si ea condicione navem conduxisti, ut ea merces tuae portarentur easque merces nulla nauta necessitate coactus in navem deteriorem, cum id sciret te fieri nolle, transtulit et merces tuae cum ea nave perierunt, in qua novissime vectae sunt, habes ex conducto locato cum priore nauta actionem. Paulus: immo contra, si modo ea navigatione utraque navis periit, cum id sine dolo et culpa nautarum factum esset. idem iuris erit, si prior nauta publice retentus navigare cum tuis mercibus prohibitus fuerit. idem iuris erit, cum ea condicione a te conduxisset, ut certam poenam tibi praestaret, nisi ante constitutum diem merces tuas eo loci exposuisset, in quem devehendas eas merces locasset, nec per eum staret, quo minus remissa sibi ea poena spectaret. idem iuris in eodem genere cogitationis observabimus, si probatum fuerit nautam morbo impeditum navigare non potuisse. idem dicemus, si navis eius vitium fecerit sine dolo malo et culpa eius. 2Si conduxisti navem amphorarum duo milium et ibi amphoras portasti, pro duobus milibus amphorarum pretium debes. Paulus: immo si aversione navis conducta est, pro duobus milibus debetur merces: si pro numero impositarum amphorarum merces constituta est, contra se habet: nam pro tot amphoris pretium debes, quot portasti.
10 Labeo, Epitomes of the Probabilities of Paulus, Book I. If you have made a contract for the transportation of slaves, freight is not due to you for a slave who died on the ship. Paulus says that, in fact, the question is what was agreed upon, whether freight was to be paid for those who were loaded on the ship, or only for those who were carried to their destination? And if this cannot be established, it will be enough for the master of the ship to prove that the slave was placed on board. 1If you hired a ship on condition that your merchandise was to be transported by her, and the master of the ship, without being compelled by necessity, placed your property on an inferior vessel, being aware that you did not wish this to be done; and your merchandise was lost, together with the ship in which it was last transported, you will be entitled to an action on the contract of leasing and hiring against the master of the first ship. Paulus, on the other hand, says that this is not true, provided both ships were lost on the voyage, since it occurred without the malice or negligence of the sailors. The rule is the same if the first master, having been detained by public authority, was prevented from sailing with your merchandise. This rule is also applicable if he entered into a contract with you under the condition that he would pay you a certain penalty if he did not, by a day agreed upon, land your goods in a place to which he had agreed to transport them, and he was not to blame if he did not wait; even though the penalty was remitted to him. We must observe the same rule in a similar imaginary case, where it is proved that the master, having been prevented by illness, was unable to sail, if his ship became unfit for navigation without any malicious intent or negligence of his. 2If you hire a ship capable of transporting two thousand jars and place jars on board, you are liable for the freight of two thousand jars. Paulus says that the fact is, if you hire the entire capacity of the ship, the freight for two thousand jars will be due, but if the freight was agreed upon according to the number of jars placed on board, the contrary rule will apply; for you owe for the transportation of as many jars as you placed on board.