HomeMaritime Law MiscellanyHistorical DocumentsJustinian's Digest - Book XIV (Title I-II)

Justinian's Digest - Book XIV (Title I-II) (529 - 565 A.D.)


TITLE I. Concerning The Action Against The Owner Of A Ship.

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.

(1) We must understand the master of a ship to be a person to whom the charge of the entire ship is committed.

(2) But 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.

(3) Masters 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.

(4) It 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.

(5) We 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.

(6) We must understand the word "ship" to mean vessels and even rafts, employed for navigating the sea, rivers, or lakes.

(7) The 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.

(8) What 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?

(9) Wherefore, 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.

(10) Where, 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.

(11) Moreover, 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.

(12) Therefore, 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.

(13) Where 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.

(14) If, 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.

(15) When 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.

(16) It 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.

(17) We have also the choice whether we would prefer to sue the person having control of the ship, or the master of the same.

(18) But, 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.

(19) If 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.

(20) But 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.

(21) We must understand the term "under the control" to apply to both sexes, sons and daughters, and male and female slaves.

(22) Where 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.

(23) But, 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.

(24) This 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.

(25) Where several parties have joint-ownership of a vessel, suit can be brought against any one of them for the entire amount;

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, 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, 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.

(1) Where 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.

(2) Where 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.

(3) If 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.

(4) These 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, 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.

(1) Moreover, 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.

(2) Where one of the owners of a ship makes a contract with the master, he can bring an action against the others.

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. Where 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, 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.

(1) Sometimes 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.

(2) Almost 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.

TITLE II. Concerning the Rhodian Law of Jettison.

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. The Same, On the Edict, Book XXXIV.

When anything has been thrown overboard on account of the distress of a ship, the owners of the lost merchandise must sue the master of the ship on the contract for transportation, if they had entered into an agreement for the carriage of the same; and he can then bring suit 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.

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.

(1) If 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.

(2) Where 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 allkinds 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.

(3) If 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.

(4) The 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.

(5) No 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.

(6) If 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.

(7) Where 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.

(8) Any 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, 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, 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.

(1) But 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.

(2) But 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 inthe 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. 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.

(1) If 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. 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, 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. 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 Mæcianus, 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, 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.

(1) If 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.

(2) If 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.

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