Justinian's Digest - Book XIV
(Title I-II) (529 - 565 A.D.)
THE DIGEST OR PANDECTS. BOOK XIV.
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
(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
(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
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
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
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
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
(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
(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
(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,
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
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,
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
(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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Library of Constitutional Classics