Nautae caupones stabularii ut recepta restituant
(Sailors, innkeepers, and the proprietors of stables, must restore property entrusted to them.)
1 Ulpianus libro quarto decimo ad edictum. Ait praetor: ‘Nautae caupones stabularii quod cuiusque salvum fore receperint nisi restituent, in eos iudicium dabo’. 1Maxima utilitas est huius edicti, quia necesse est plerumque eorum fidem sequi et res custodiae eorum committere. ne quisquam putet graviter hoc adversus eos constitutum: nam est in ipsorum arbitrio, ne quem recipiant, et nisi hoc esset statutum, materia daretur cum furibus adversus eos quos recipiunt coeundi, cum ne nunc quidem abstineant huiusmodi fraudibus. 2Qui sunt igitur, qui teneantur, videndum est. ait praetor ‘nautae’. nautam accipere debemus eum qui navem exercet: quamvis nautae appellantur omnes, qui navis navigandae causa in nave sint: sed de exercitore solummodo praetor sentit. nec enim debet, inquit Pomponius, per remigem aut mesonautam obligari, sed per se vel per navis magistrum: quamquam si ipse alicui e nautis committi iussit, sine dubio debeat obligari. 3Et sunt quidam in navibus, qui custodiae gratia navibus praeponuntur, ut ναυφύλακες et diaetarii. si quis igitur ex his receperit, puto in exercitorem dandam actionem, quia is, qui eos huiusmodi officio praeponit, committi eis permittit, quamquam ipse navicularius vel magister id faciat, quod χειρέμβολον appellant. sed et si hoc non exercet, tamen de recepto navicularius tenebitur. 4De exercitoribus ratium, item lyntrariis nihil cavetur: sed idem constitui oportere Labeo scribit, et hoc iure utimur. 5Caupones autem et stabularios aeque eos accipiemus, qui cauponam vel stabulum exercent, institoresve eorum. ceterum si qui opera mediastini fungitur, non continetur, ut puta atriarii et focarii et his similes. 6Ait praetor: ‘quod [ed. maior cuiusque] <ed. minor cuius> salvum fore receperint’: hoc est quamcumque rem sive mercem receperint. inde apud Vivianum relatum est ad eas quoque res hoc edictum pertinere, quae mercibus accederent, veluti vestimenta quibus in navibus uterentur et cetera quae ad cottidianum usum habemus. 7Item Pomponius libro trigensimo quarto scribit parvi referre, res nostras an alienas intulerimus, si tamen nostra intersit salvas esse: etenim nobis magis, quam quorum sunt, debent solvi. et ideo si pignori merces accepero ob pecuniam nauticam, mihi magis quam debitori nauta tenebitur, si ante eas suscepit. 8Recipit autem salvum fore utrum si in navem res missae ei adsignatae sunt: an et si non sint adsignatae, hoc tamen ipso, quod in navem missae sunt, receptae videntur? et puto omnium eum recipere custodiam, quae in navem illatae sunt, et factum non solum nautarum praestare debere, sed et vectorum,
1 Ulpianus, On the Edict, Book XIV. The Prætor says: “When sailors, innkeepers, and the proprietors of stables have received property for safe keeping, I will grant an action against them if they do not restore it”. 1This Edict is extremely useful, for the reason that it is very frequently necessary to place confidence in persons of this kind, and to entrust them with the care of property. No one should think that this Edict imposes any hardship upon them, for they have the choice of refusing to receive anyone; and, unless this rule was established, opportunity would be given for them to cooperate with thieves against those whom they receive as guests; since, even now, they do not abstain from fraudulent acts of this description. 2Therefore, let us consider who those are that are liable. The Prætor says “Sailors”. We must understand a “sailor” to be the person who has charge of the ship, although all are called sailors who are on board the vessel for the purpose of navigating it, but the Prætor only has in mind the owner; for Pomponius says that the latter ought not to be liable for the act of an oarsman, or sub-pilot, but only for what he does himself, or for the act of the captain; although if he himself ordered anyone to commit something to the care of a sailor, he would himself undoubtedly be liable. 3There are also persons who occupy positions on board ships for the purpose of caring for merchandise such as nanfulaceV, that is to say, marine guards and stewards. Therefore, if any of these should receive anything, I think that an action should be granted against the owner of the ship, because he who appointed persons of this kind to office permits property to be placed in their charge; even though the captain, or master does that which is called ceirembolon that is to say, “taking the property in his hands”. But even if he does not do this, the ship-owner will nevertheless be liable for what was received. 4No provision is made with reference to those who have charge of rafts or boats, but Labeo says that the same rule applies to them; and this is our practice. 5We understand by the terms “innkeepers” and “stablekeepers”, those who conduct an inn or a stable, or their agents. Persons, however, who are engaged in menial occupations, are not included; as, for instance, door-keepers, cooks, and others like them. 6The Prætor says, “Where they have received the property of anyone for safe keeping”; that is to say, any article or any goods whatsoever. Hence, it is stated in Vivianus, that this Edict also has reference to things which do not come under the head of merchandise; as, for instance, clothing which is worn on board ship, and other things such as persons daily make use of. 7Moreover, Pomponius says in the Thirty-fourth Book, that it makes a little difference whether we bring in our own property or that of others, if we have an interest in having it kept safely, for the property should be returned to us rather than to those to whom it belonged; and, therefore, if I accept merchandise as a pledge for money loaned on a maritime risk, the owner of the vessel will be liable to me rather than to the debtor, if he had previously received the property from me. 8Does he “receive the property for safe-keeping”, only where having been placed on board the ship it was entrusted to him, or if it is not thus entrusted, is he still considered to have received it for this purpose, if it was merely placed on board the ship? I think that he always receives property for safe-keeping when it is placed on board, and that he not only should be liable for the acts of the sailors, but also for those of the passengers:
2 Gaius libro quinto ad edictum provinciale. sicut et caupo viatorum.
2 Gaius, On the Provincial Edict, Book V. Just as an innkeeper is liable for the acts of travellers.
3 Ulpianus libro quarto decimo ad edictum. Et ita de facto vectorum etiam Pomponius libro trigensimo quarto scribit. idem ait, etiamsi nondum sint res in navem receptae, sed in litore perierint, quas semel recepit, periculum ad eum pertinere. 1Ait praetor: ‘nisi restituent, in eos iudicium dabo’. ex hoc edicto in factum actio proficiscitur. sed an sit necessaria, videndum, quia agi civili actione ex hac causa poterit: si quidem merces intervenerit, ex locato vel conducto: sed si tota navis locata sit, qui conduxit ex conducto etiam de rebus quae desunt agere potest: si vero res perferendas nauta conduxit, ex locato convenietur: sed si gratis res susceptae sint, ait Pomponius depositi agi potuisse. miratur igitur, cur honoraria actio sit inducta, cum sint civiles: nisi forte, inquit, ideo, ut innotesceret praetor curam agere reprimendae improbitatis hoc genus hominum: et quia in locato conducto culpa, in deposito dolus dumtaxat praestatur, at hoc edicto omnimodo qui receperit tenetur, etiam si sine culpa eius res periit vel damnum datum est, nisi si quid damno fatali contingit. inde Labeo scribit, si quid naufragio aut per vim piratarum perierit, non esse iniquum exceptionem ei dari. idem erit dicendum et si in stabulo aut in caupona vis maior contigerit. 2Eodem modo tenentur caupones et stabularii, quo exercentes negotium suum recipiunt: ceterum si extra negotium receperunt, non tenebuntur. 3Si filius familias aut servus receperit et voluntas patris domini intervenit, in solidum erit conveniendus. item si servus exercitoris subripuit vel damnum dedit, noxalis actio cessabit, quia ob receptum suo nomine dominus convenitur. sin vero sine voluntate exerceant, de peculio dabitur. 4Haec autem rei persecutionem continet, ut Pomponius ait, et ideo et in heredem et perpetuo datur. 5Novissime videndum, an eiusdem rei nomine et de recepto honoraria actione et furti agendum sit: et Pomponius dubitat: sed magis est, ut vel officio iudicis vel doli exceptione alterutra esse contentus debeat.
3 Ulpianus, On the Edict, Book XIV. Pomponius says, in the Thirty-fourth Book, the same thing with reference to the acts of passengers. He also asks that where the property has not yet been placed on board a ship, but has been lost on land, it is at the risk of the owner of the vessel who at first took charge of it. 1The Prætor says: Unless they restore it, I will grant an action against them. The action arising from this Edict is one in factum. Let us consider, however, whether this is necessary, as the case is one in which a party can proceed by a civil action; that is to say, where any compensation is involved, an action based on leasing or hiring will lie. But where the entire ship was hired, the party who did so can bring suit on that ground, even for articles that are missing; but if the master contracted to transport the goods, an action on the ground of hiring can be brought against him; and if he received the goods gratis, Pomponius says that an action on deposit will lie. He, therefore, is surprised that a prætorian action was introduced, since civil actions are applicable; unless, as he states, it was for the purpose of making it known that the Prætor was desirous of checking the dishonesty of persons of this kind, and because in cases of leasing and hiring, a person is responsible for negligence, but in cases of deposit, only for fraud; but, under this Edict, the party who received the property is absolutely liable, even though the goods were lost, or damage resulted without his fault, unless something occurred to cause inevitable injury. Hence, Labeo holds that, where anything is lost through shipwreck, or by the violence of pirates, it is not improper to grant the owner an exception. The same must be said where irresistible force is used in a stable, or an inn. 2Inn-keepers and the proprietors of stables are also liable, if, in the transaction of their business, they take charge of property; but they are not liable if they do so outside of their business. 3Where the son of a family, or a slave receives property for safe-keeping, and the consent of the father or master is granted, an action may be brought against him for the entire amount. Moreover, if a slave of the owner of the vessel stole the property or injured it, a noxal action will not lie, for the reason that the owner can be sued directly, on account of his having received the goods; but if the son of the family, or the slave acted without the consent of his superiors, an action De Peculio will be granted. 4This action, as Pomponius states, has for its object the recovery of property; and therefore is granted perpetually, and against an heir. 5Finally, let us consider whether proceedings by a prætorian action on the ground of property received, and also on that of theft, can be instituted for the same property. Pomponius is in doubt as to whether it can, but the better opinion is that the party ought to be content with one or the other of the two proceedings; that is, either application to the court, or an exception on the ground of fraud.
4 Paulus libro tertio decimo ad edictum. Sed et ipsi nautae furti actio competit, cuius sit periculo, nisi si ipse subripiat et postea ab eo subripiatur, aut alio subripiente ipse nauta solvendo non sit. 1Si nauta nautae, stabularius stabularii, caupo cauponis receperit, aeque tenebitur. 2Vivianus dixit etiam ad eas res hoc edictum pertinere, quae post impositas merces in navem locatasque inferentur, etsi earum vectura non debetur, ut vestimentorum, penoris cottidiani, quia haec ipsa ceterarum rerum locationi accedunt.
4 Paulus, On the Edict, Book XIII. But the captain of the ship himself who assumed the risk, has a right of action on the ground of theft, unless he himself stole the property, and afterwards it was stolen from him, or someone else stole it, where the captain is not solvent. 1Where the captain of a ship received for safe-keeping the property of another captain; or the proprietor of a stable, that of another proprietor; or an inn-keeper that of another inn-keeper; they are all equally liable. 2Vivianus states that this Edict also has reference to such property as has been on board after the merchandise whose carriage was agreed upon has been loaded, even though nothing is due for its transportation, as for instance, clothing, or provisions for daily consumption; for the reason that these things are included as additions to those for which compensation has been paid.
5 Gaius libro quinto ad edictum provinciale. Nauta et caupo et stabularius mercedem accipiunt non pro custodia, sed nauta ut traiciat vectores, caupo ut viatores manere in caupona patiatur, stabularius ut permittat iumenta apud eum stabulari: et tamen custodiae nomine tenentur. nam et fullo et sarcinator non pro custodia, sed pro arte mercedem accipiunt, et tamen custodiae nomine ex locato tenentur. 1Quaecumque de furto diximus, eadem et de damno debent intellegi: non enim dubitari oportet, quin is, qui salvum fore recipit, non solum a furto, sed etiam a damno recipere videatur.
5 Gaius, On the Provincial Edict, Book V. The owner of a ship, an inn-keeper, and the proprietor of a stable, receive pay, but not for the safe-keeping of property; the ship-owner receives it for the transportation of passengers; the inn-keeper for permitting the travellers to remain in his inn; the proprietor of a stable for allowing beasts of burden to be housed in his barn; nevertheless, they are all liable for the safe-keeping of property. A fuller, or a shoemaker receives pay, not for the safe-keeping of property, but for their labor; and they are also liable to an action of hiring for safe custody. 1What we have said with reference to theft should be understood to be equally applicable to damage, for it cannot be doubted that a party who receives property for safe-keeping is considered to do so in order to protect it from theft, as well as from injury.
6 Paulus libro vicensimo secundo ad edictum. Licet gratis navigaveris vel in caupona gratis deverteris, non tamen in factum actiones tibi denegabuntur, si damnum iniuria passus es. 1Si servo meo in nave vel in caupona utaris et damnum mihi det vel furtum faciat, quamquam et furti actio et damni iniuria mecum sit, haec tamen actio, quia in factum est, etiam servi mei nomine adversus te competit. idem dicetur, et si communis sit: tu tamen quod mihi praestiteris eius nomine, vel communi dividundo vel pro socio actione, aut si partem eius vel totum conduxisti, etiam ex conducto habebis me obligatum. 2Sed si damnum in eo datum sit ab alio, qui in eadem nave vel caupona est, cuius factum praetor aestimare solet, non putat Pomponius eius nomine hanc actionem utilem futuram. 3In factum actione caupo tenetur pro his, qui habitandi causa in caupona sunt: hoc autem non pertinet ad eum, qui hospitio repentino recipitur, veluti viator. 4Possumus autem furti vel damni iniuriae actione uti cum nautis, ut certi hominis factum arguamus: sed una contenti esse debebimus, et si cum exercitore egerimus, praestare ei debemus actiones nostras, quamvis ex conducto actio adversus eos competat exercitori. sed si absolutus sit exercitor hac actione, deinde agatur cum nauta, exceptio dabitur, ne saepius de eiusdem hominis admisso quaeratur. et contra, si de admisso unius hominis actum sit, deinde in factum actione agatur, exceptio dabitur.
6 Paulus, On the Edict, Book XXII. Although you may be transported in a ship without charge, or be entertained gratuitously in an inn, still, an action in factum will not be refused you if your property is unlawfully damaged. 1If my slave is attending you on board a ship, or in an inn, and he injures my property, or steals it; although I will be entitled to actions on the ground of theft, or damage to property, yet in this instance, the action, because it is in factum can be brought against you, even on account of the act of my slave. The same rule applies if the slave is our common property; still, whatever you pay me on account of what he may have done, whether you were liable in an action for partition, or in an action on partnership, or where you hired only a share in said slave, or all of him, you can hold me liable on the contract also. 2But where some injury has been committed against the said slave by someone else, on the same ship, or in the inn, whose acts the Prætor is accustomed to investigate, Pomponius does not think that this action can be brought on account of the slave. 3An inn-keeper is also liable to the action in factum, on account of those who have lodgings in the inn, but this rule does not apply to a party who is entertained as a transient guest, as, for instance, a traveller. 4We can also have recourse to an action of theft, or for damages against sailors, if we can prove the act of any particular person; but we should be content with one action, and if we proceed against the owner of the vessel, we must assign to him our right of action; although an action based upon hiring will lie in his favor against the other party. Where, however, the owner is discharged from liability in this action, and the party injured then brings suit against the sailor: an exception will be granted the latter, in order to prevent frequent trials being held on account of the conduct of the same man. On the other hand, if proceedings are instituted on account of the conduct of one man, and afterwards an action in factum is brought against the owner, an exception will be granted.
7 Ulpianus libro octavo decimo ad edictum. Debet exercitor omnium nautarum suorum, sive liberi sint sive servi, factum praestare: nec immerito factum eorum praestat, cum ipse eos suo periculo adhibuerit. sed non alias praestat, quam si in ipsa nave damnum datum sit: ceterum si extra navem licet a nautis, non praestabit. item si praedixerit, ut unusquisque vectorum res suas servet neque damnum se praestaturum, et consenserint vectores praedictioni, non convenitur. 1Haec actio in factum in duplum est. 2Sed si quid nautae inter se damni dederint, hoc ad exercitorem non pertinet. sed si quis sit nauta et mercator, debebit illi dari: quod si quis quos volgo ναυτεπιβάτας dicunt, et huic tenebitur, sed huius factum praestat, cum sit et nauta. 3Si servus nautae damnum dederit, licet servus nauta non sit, aequissimum erit in exercitorem actionem utilem dare. 4Hac autem actione suo nomine exercitor tenetur, culpae scilicet suae qui tales adhibuit: et ideo et si decesserint, non relevabitur. servorum autem suorum nomine noxali dumtaxat tenetur: nam cum alienos adhibet, explorare eum oportet, cuius fidei, cuius innocentiae sint: in suis venia dignus est, si qualesquales ad instruendam navem adhibuerit. 5Si plures navem exerceant, unusquisque pro parte, qua navem exercet, convenitur. 6Haec iudicia quamvis honoraria sunt, tamen perpetua sunt: in heredem autem non dabuntur. proinde et si servus navem exercuit et mortuus est, de peculio non dabitur actio in dominum nec intra annum. sed cum voluntate patris vel domini servus vel filius exercent navem vel cauponam vel stabulum, puto etiam hanc actionem in solidum eos pati debere, quasi omnia, quae ibi contingunt, in solidum receperint.
7 Ulpianus, On the Edict, Book XVIII. The owner of a vessel shall be responsible for the acts of all his sailors, whether they are freemen, or slaves, and not without reason, for he himself employed them at his own risk. But he is not responsible, except where the damage has been committed on board the vessel; for where it happens off the vessel, even though it was committed by the sailors, he will not be liable. Moreover, if he gives warning that every passenger must be responsible for his own property, and that he will not be liable for damage, and the passengers agree to the terms of the warning, he cannot be sued. 1This action in factum is for double damages. 2Where any of the sailors cause damage to the property of one another, this does not affect the owner of the ship. But where anyone is both sailor and merchant, he will be responsible, and where the party injured is one of those commonly called nanlepibatæ that is to say one who works his passage the owner will be liable to him also; and he will be responsible for the acts of a person of this kind since he also is a sailor. 3Where the slave of a sailor causes damage, even though he himself is not a sailor, it is perfectly just to grant a prætorian action against the owner of the vessel. 4The ship-owner is liable in his own name in this action that is to say, he himself is to blame for employing persons of this description; and therefore, even if he should die, he will not be released from liability. Where, however, he becomes liable through the conduct of his own slave, only a noxal action can be brought; for where he employs the slaves of others, he must ascertain whether they are faithful and trustworthy, but he is excusable on account of his own slaves, no matter what kind of slaves he employed for the purpose of manning his ship. 5Where there are several owners of a ship, any one of them can be sued to the amount of the interest which he has in the same. 6These actions, although they are honorary, are still perpetual, but they are not granted against an heir; hence, if a slave has control of a ship, and dies, an action De Peculio will not be granted against his master, even within a year; but where a slave or a son manages a ship with the consent of his father or his master, or has charge of an inn or a stable; I am of the opinion that they will be compelled to defend the suit for the entire amount of damages, on the supposition that they assumed complete responsibility for everything which might happen.