CIVIL LAW.

Translated for the American Law Journal.

[Continued from vol. II. p. 471.]

A Translation of the Second Title of the Fourteenth Book of the
Digests, entitled, De Lege Rhodiâ de Jaçtu.

DIGEST, Book XIV. Tit. II.
Of the Rhodian Law concerning Jettison.

LAW I.

Paulus, lib. 2. Sententiarum.

LEGE Rhodia. The Rhodian law ordains, that if goods are thrown overboard for the sake of lightening the vessel, as it is done for the good of all, all must come into contribution for

the same.

LAW II..

Same, lib. 34. ad edictum.

Si laborante. If while the vessel labours, a jettison is made, if the owners of the goods lost had loaded them on freight, they have an action ex locato against the master of the vessel, who has an action ex conducto against the owners of the goods saved, that they may make good the damage by contribution. But Servius answers, that you must sue the master ex locato that he may retain the merchandize of the other passengers, until they shall have contributed their share of the damage. Nay, although the master retains the goods, he has moreover an action ex locato against the freighters; but what if they are only passengers who have no goods at all? It is certainly more convenient, if there are any goods, to retain them. But, if there

are none, and if he hired the whole vessel, he must bring his action ex conducto as against passengers who have hired places in the vessel; for it is extremely just that those who have saved their goods by the loss of those of others should contribute to the damage.

Si conservatis. § 1. If the goods being preserved the ship is hurt or disabled, no contribution is to take place, because there is a difference between the things that belong to the vessel and those for which a reward is received. For if a smith breaks his hammer or his anvil, it must not be imputed to him who has given him work to do. But if that damage has happened by the act of the passengers, or from fear of danger, they must make good that damage by contribution.

Cum in eadem. § 2. Several merchants had loaded various quantities of goods on board the same ship, in which there were several passengers, both freemen and slaves. A violent tempest having arisen, a jettison became indispensable. It was asked, whether all must contribute to the jettison, and whether those must contribute who had goods on board by which the vessel was not loaded, as pearls, jewels, &c. and in what proportion they must contribute? and whether there must also be a contribution for the heads of freemen, and by what action it could be enforced? It was determined that all must contribute to whom the jettison had been an advantage, because it was a tribute due by those things which had been preserved, and therefore that the owner of the vessel was bound to contribute for his share, and the amount of the jettison 'must be apportioned according to the value of the goods. No estimation can be made of the body of a freeman. The owners of things lost have an action ex conducto against the master of the vessel. It has also been agitated whether an estimation is to be made of the clothes and jewels of every person? And it was unanimously agreed that they should contribute, but not such things as are on board for the sake of being consumed, as provisions. And this is so much the more reasonable, that if they should become scarce in the course of the navigation, what every one has is to be used in common.

Si navis. 3. If the vessel is ransomed from pirates, Servius, Ofilius and Labeo say that all ought to contribute to the ransom. But whatever is carried off by pirates is to be lost by him to whom it belonged, nor is he to contribute who ransomed his own goods.

Portio autem. § 4. There must, however, be a difference in the valuation of the things that are saved, and of those that are lost; nor is it any matter whether those which have been lost could have been sold for a higher price, because the loss and not the profit is here to be estimated. But as to the things which are to contribute, they must be valued not at the price for which they have been bought, but at that for which they may sell.

Servorum. § 5. Nor can an estimation be made of servants that perish at sea, any more than of sick men who die of sickness on board, or throw themselves into the sea.

Si quis. 6. If any of the passengers cannot pay, it will be no detriment to the master, for he is not to inquire into the circumstances of every one.

Si res. 7. If the things that have been thrown overboard appear again, the contribution is discharged; but if it has already been made, then those who have paid have an action ex locato against the master, that he may recover it ex conducto, and pay what he shall have recovered.

Res autem. § 8. But the thing thrown overboard remains the property of the owner, nor does it belong to the finder, for it is not considered as derelict.

LAW III. .

Papinianus, lib. 19. Responsorum.

Cum arbor. If a mast or any other thing belonging to the vessel be thrown out for the sake of averting a common danger, a contribution is due.

LAW IV.

Callistratus, lib. 2. quæstionum.

Navis onusta. If, in order to lighten a vessel too much loaded, (which being so loaded cannot enter a river or port) some goods are put into the boat, that the vessel may not be in danger either at sea or in the river or port, and if the said boat perishes, those whose goods have been saved in the ship, must come into contribution with those who lost theirs in the boat, in the same manner as if a jettison had been made. This Sabinus proves, lib. 2, Responsorum. Otherwise if the boat has been saved with part of the merchandize, and the vessel has been lost, there is to be no contribution for the loss of those who lost their effects aboard the ship, because there is no contribution except in case a vessel is saved by a jettison.

Sed si navis. 1. But if the vessel, having been lightened during a storm by the jettison of the goods of one shipper, is lost in another place, and the goods of some shippers are saved by the divers for a reward, those who saved their goods by means of the divers must contribute to him whose goods have been thrown overboard for the sake of lightening the vessel, as Sabinus justly answered. But on the contrary, those who so preserved their goods are not to have a contribution from him whose effects were cast into the sea to relieve the vessel if they should afterwards be found by the divers, because it cannot be said that their goods were cast into the sea for the preservation of the ship.

Cum autem. § 2. But if a jettison is made from the vessel, and the goods of some person, which remained on board have been spoiled or damaged, is he obliged to contribute? for he must not be loaded with a double loss; viz. the damage which his goods suffered and that of contribution. But it may be answered that he is to contribute, estimating his goods at their present value, as for instance, goods of two persons were respectively worth twenty pieces, and those of one of them were so damaged by the sea water as to be reduced to ten, he VOL. III.

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whose goods remained unhurt shall contribute for twenty, the other only as for ten pieces. We must however consider, while we adopt this opinion, what has been the cause of the damage of the goods, that is to say, whether they have been damaged in consequence of the jettison or by some other cause, as for instance, from their being stowed in some corner where the water penetrated, for in this case they must contribute. But if from the firstmentioned cause, the owner must not bear the burthen of contribution, because he suffered from the jettison itself: Again, what if the goods have been spoiled by being wet with the sea water occasioned by the jettison? But a much more subtle distinction is made, to wit, whether the damage or the contribution is greater, as for instance, these things were worth twenty pieces, the contribution is ten pieces and the damage two; after the deducting the damage the remainder is to contribute. What then if the damage amounts to more than the contribution? As for instance, if the things have been damaged to the value of ten pieces and ought to contribute two? undoubtedly they ought not to bear this double burden. But let us see whether they ought even to contribute? For what is the difference whether I lose my goods by throwing them overboard or have them damaged by sea water? In like manner as you relieve him who lost his goods, so ought you to assist him who has had them damaged by the jettison; and thus answers Papirius Fronto.

LAW V.

Hermogenianus, lib. 2. juris Epitomarum.

Amissa navis. The loss of a vessel is not to be made up by the contribution of those who have saved their goods from the shipwreck. For the equity of contribution only obtains when the ship is saved by a jettison agreed upon in common danger.

Arbore casa. § 1. If the mast be cut off, in order to save the ship and goods, the equity of contribution takes place.