EXEGESIS OF D 14.2 AND PAULI SENTENTIAL 2.7

Title 14.2 is composed of ten excerpts from the work of well-known jurists ranging, chronologically, from Labeo in the Augustan period to Hermogenian

2 Of related interest are also D 4.9 (let seamen, innkeepers, and stablekeepers restore what they have received); D 47.5 (the action for theft against ships' masters, innkeepers, and liverymen); D 14.1 (the action against the shipowner); D 22.2 (transmarine loans); and isolated excerpts such as D 19.2.13.1 and 19.2.31 (lease and hire).

3 Cf D Johnston, Roman Law in Context (1999) 77 (ch 5: Commerce); and the lively debate on the issue that took place at the conference “Diritto commerciale romano: tra didattica e ricerca”, Circolo Toscano Ugo Coli, Certosa di Pontignano, 12-14 January 2006, organised by Prof R Martini and Dr G Cossa. I plan to discuss this point further in a chapter of the forthcoming Cambridge Companion to Roman Law edited by D Johnston.

4 Cf R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990, repr with rev 1996) 406-412.

5 N Badoud, Le titre XIV,2 du Digeste de lege Rhodia de iactu (DEA thesis, Lausanne-Neuchatel 2004). Special thanks go to Mr Badoud, my former pupil, who shared with me the results of his research. Even though I do not wholly agree with Badoud's conclusion, I have relied on his thorough knowledge of the bibliography and his acute analysis of the text of D.14.2, and, as a result, this chapter owes more to his work than could be acknowledged in individual footnotes. The bibliography on the subject can also be traced through E Chevreau, “La lex Rhodia de iactu: un exemple de la reception d'une institution etrangere dans le droit romain” (2005) 73 TvR 67, esp 68, notes 7-8; G Purpura, “Ius naufragii, sylai e lex Rhodia. Genesi delle consuetudini marit­time mediterranee” (2002) 47 Annali dell’Universita di Palermo 275 and D Gourier, Le droit maritime romain (2004), which I have not seen.

in the Diocletianic period. Those authors themselves cite earlier, late-Repub­lican jurists such as Servius Sulpicius Rufus and his students Ofilius and Alfenus Varus, as well as stars like Massurius Sabinus or little known figures like Papirius Fronto.

Title 14.2 is supplemented by another post-classical source, the Sententiae of Pseudo-Paul (an African writer dated around 300), which has come down to us through an independent channel, but which largely overlaps the text of the Digest, except on minor, though telling details. What is interesting here is that Pseudo-Paul is the author of one of the two excerpts that explicitly refer to the lex Rhodia, the other one being the text of a petition followed by an imperial rescript, transmitted by the mid-second-century jurist Volusius Maecianus. It is fair to say at the outset that in view of the fact that both excerpts may be - and have been - considered later interpolations, the whole concept of a “Rhodian” origin for the legal arrangement under consideration has repeat­edly been questioned. The fact is that D 14.2.1, which provides the most basic and economical definition of the legal arrangement central to the whole title, cites a text by Paul that happens to have survived independently:⁶

Lege Rhodia cavetur ut si levandae navis gratia iactus mercium factus est omnium contributione sarciatur quod pro omnibus datum est.

The lex Rhodia provides that if jettison of merchandises has been carried out in order to lighten the ship, everyone has to contribute to compensate what has been given up for the sake of all.

This text is to be set against the matching passage in the Sententiae (2.7.1):

Levandae navis gratia iactus cum mercium factus est omnium intributione sarci­atur quod pro omnibus iactum est.

Let us note that the explicit mention of the lex Rhodia is missing in the text of the Sententiae, although the alleged title [Ad legem Rhodiam], supplemented by the so-called Breviarium Alarici (dated to the early sixth century),⁷ justifies

6 G Purpura, “Ius naufragii” (n 5) 288-292 and notes 70-72, refers to a Latin inscription on a column in the harbour of Rhodes, to be dated on palaeographical grounds to the second or third century ad, and first published by G Marcou, “Nomos Rhodion Nautikos e la scoperta a Rodi di una colonna di marmo con l'iscrizione di Paolo (D 14 2)” in Studi in onore di Lefebvre D’Ovidio I (1995) 614 (non vidi).

7 Also known as lex Romana Visigothorum (FIRA II², 319-417). somewhat its absence in the text, while its appearance in D 14.2.1 can be explained as an adjustment by the compilers.^[285] Formally, on the basis of D 14.2.1 and Sententiae 2.7.1, the link between the law of contribution in case of jettison and the island of Rhodes is tenuous at best. Furthermore, it has been explained away as the trace of the development in the Byzantine period of a so-called Rhodian Sea-Law, expounded in the Basilica of Leo the Wise in the late ninth/early tenth centuries.^[286]

The other excerpt (D 14.2.9) mentioning the lex Rhodia is problematic in its content, as we will see later on. The reference is actually twofold:

1. The title of the excerpted work is reportedly Volusius Maecianus' ex lege Rhodia or “from his De lege Rhodia”. The inscription is somewhat unusual, perhaps less so if one looks at the excerpt placed directly above (D 14.2.8), ascribed to Julian's lihro secundo ex Minicio, the whole work in ten books (at least) being entitled Ad Minicium.

2. The petition itself is followed by the imperial rescript which specifies that the case of direptio ex naufragio can, may, or must be judged (krinestho) according to Rhodian maritime law as long as it does not contradict Roman (praetorian, civil, or imperial) law, as a previous - or senior emperor - had already ascertained.

Whatever the difficulties with the content of Maecianus' excerpt, it is not unrealistic to think that at the time of the island's political and economic splendour in the Hellenistic period, the Rhodians had developed some kind of customary law, if not specific legislation, dealing with the problems raised by what was then - and still is - perceived as one of their main economic activities, namely seaborn trade to, from or via the island. The problem is that this law is hard to reconstruct, for lack of evidence - even more so if one discards what seems to be available under the pretence of interpolation. What should draw our interest is not only the possibility of direct or indirect borrowing on the part of the Romans, but especially the way a Rhodian legal arrangement could have found its way into Roman law - which was undoubt­edly the case at the time of the compilers, if not before - and the implication of such a model in our perception of Roman legal history.

As Pseudo-Paul's definition suggests, jettison calls for compensation on the part of those who did not suffer from it, provided that they had actually benefitted from it (“pro omnibus”). This is nothing less than an early form of cargo insurance. The real Paul, in so far as he is a different person in this case, is next called upon to specify what the general principle entails. In the thirty-fourth book of his Commentary on the praetorian edict (D 14.2.2), Paul reviews several situations in which the law of jettison applies:

(a) The owners of the goods which have been jettisoned have a right to sue the captain (magister navis) on the basis of the contract of hire/lease (locatio conductio). Three conditions must be fulfilled explicitly for the legal remedy to apply: first, the plaintiffs must be the legitimate owners of the goods (amissarum mercium domini); second, they, as locatores, must have contracted with the captain, as conductor, for the transport of the goods, which means that the jettison of goods transported free of charge, either as a favour or stealthily, did not give rise to an action; third, jettison must have been carried out as the result of a crisis (laborante nave).

(b) The practical aspect of contributio is discussed by means of a citation of Servius Sulpicius Rufus, which brings us back to the late Republican period, as a terminus ante quem. The passage suggests that the action brought against the captain must result in his seizing and holding the goods of the other transporters until they pay their share of the damage. The citation is quite problematic, as the jurist seemingly allows for non-compliance with this order on the part of the captain, who nevertheless retains his action against the transporters/passengers (vectores). It is avowedly a simple matter of practicality (commoditas). Let us note here that Servius speaks of an actio ex locato, while Paul refers to an actio ex conducto, which indicates that notwith­standing a corruption of the text - as the discrepancy between the Florentine manuscript on the one hand and secondary manuscripts or the Basilica on the other hand regarding the negation suggests - the context of the citation may be different.

(c) It is not too clear in D 14.2.2 where Servius' citation ends - at the end of the preface or at the end of the title.¹² The ambiguity is perhaps intentional as Servius' authority and the antiquity of his opinion add some weight to Paul's demonstration. Next the jurist draws the line at what damage should be taken into consideration. Wear and tear on the ship - or on any other tool of production, such as an anvil or a hammer - is no cause for contributio (collatio), but circumstances may have called for drastic measures: in the report of St Paul's shipwreck in Acts 27:18-19, ekbole is shortly followed by the discarding of the ship implements (skeue tou ploiou), while the food - and presumably fresh water - is thrown overboard only weeks later (27:38). Had the ship been saved, the deliberate removal of the riggings would have quali­fied the shipowner for contributio, no less than ekbole (the object of which is unspecified) and sitos.

(d) As Acts 27 indicates, the ship may transport any combination of goods (or even a variety of them) and persons. Servius/Paul wonders (D 14.2.2.2)

10 D 14.2.2.2 (Paul, Edict 34): “corporum liberorum aestimationem nullam fieri posse”.

11 Cicero, De Officiis 3.23.89. N Badoud, Le titre XIV,2 du Digeste (n 5) 36, rightly recalls, among others, that Cicero refers here to the work of the stoic philosopher Hekaton of Rhodes, who was a pupil of Panaetius.

12 D 14.2.2.2 (Paul, Edict 34): “placuit” and “ex conducto dominos rerum amissarum cum nauta”. whether those who transport valuables of insignificant weight should be called upon to “iacturam praestare”, which I understand as to share in the damage (i.e., to make contributio),^[287] considering that everyone would have acknowledged that the jettison of pearls, for instance, would have brought little relief to the ship. Of course, both the shipowner and the pearls' owner were to contribute on the basis of the respective monetary value of discarded and saved goods, including, for the latter, clothes and jewellery, but excluding food, considered common property in times of crisis.^[288] The pricing of lost property is based on the purchase value, not on resale value, the merchant's potential profit (lucrum) being a matter of personal loss. Conversely, the pricing of saved property depends on its resale value, partially damaged goods being of a lower resale value than their purchase value (D 14.2.2.4).

(e) In D 14.2.2.3, Servius, Ofilius and Labeo seem to extend the scope of the legal arrangement to the ransoming of the ship from pirates, whereby all passengers and most certainly the shipowner or his agent has to contribute. The ransomed ship undoubtedly includes its cargo and all the passengers' personal belongings, otherwise it would be unreasonable to expect everybody to chip in for the sake of the shipper. Jettison (iactus) is no longer a necessary element for the legal arrangement to apply. Extension may not be the proper term, as one cannot rule out that the legal arrangement - whether it derives from a lex Rhodia or not - had developed simultaneously in connection with both shipwreck and piracy. Although there is no sign that it involves such a legal arrangement, the ransoming of Julius Caesar in 74 BC occurred on the island of Pharmacussa, off the coast of Asia Minor, while he was crossing to Rhodes:^[289] his companions and slaves were supposed to raise the money while he stayed behind with the pirates as a hostage. Interestingly, highway robbery is treated differently, and there is no analogy with seaborne trade. Travellers may have flocked together, but everyone was supposed to fend for himself. The ransoming of goods outside the context of a ship does not call for contributio.

Paul's long excerpt ends with three minor issues (D 14.2.2.6-8) con­cerning

1. passengers' insolvency, not to be shouldered by the captain;

2. the reversibility of contributio, if jettisoned goods reappear later - in that case contributors have an actio ex locato against the captain for refund, while the captain has an actio ex conducto against the fortunate owners; and

3. the latter's permanent right of ownership, excluding usucapio because jettisoned goods are not to be regarded as abandoned (derelictum).

The reason why I dwell for so long on Paul's views in D 14.2.2 is not because of its exotic character as an excerpt from classical jurisprudence. In fact, in spite of its length, it shows standard features: following the definition of the initial excerpt of the title (D 14.2.1), it presents a general case listing all the necessary components, then moves to a citation of a pre-classical jurist, builds on analogies,^[290] explores more complex situations, some smacking of the rhetor's classroom (such as the case of the traveller carrying gemmae margaritae), others showing a really sophisticated approach to the problem of aestimatio (taking into consideration price variations), to conclude with secondary, though legally pregnant, issues (such as usucapio). What makes D 14.2.2 somewhat remarkable in this context (besides Ulpian's conspicuous absence in the whole title, in spite of D 19.5.14) is the fact that it is excerpted from Paul's Commentary on the Praetorian Edict, whereas it is evident that the lex Rhodia de iactu does not belong to the edict. In fact, as O Lenel's Palingenesia suggests,^[291] Book 34 of Paul's Commentary deals with the actio locati conducti. D 14.2 is, so far as we can see, nothing but a misplaced appendix to D 19.2, where the same work is excerpted several times.^[292] This is true too of other works excerpted in D 14.2: Alfenus' liber tertius digestorum a Paulo epitomatorum;^[293] Labeo's liber primus pithanon/pithanorum a Paulo epitomatorum;^[294] Paul's liber secundus sententiarum·^[295] and Hermogenian's liber secundus iuris epitomarum.^[296]

The other excerpts included in D 14.2 do not help much to explain why the title on the lex Rhodia de iactu was not appended to the title on locatio conductio. Let us examine briefly a few of them:

D 14.2.3 is a text from Papinian's nineteenth book of Responsa. The excerpt Ad legem Rhodiam has been placed by Lenel just before texts dealing with De re militari, De appellationibus, or De tributis.^[297] There is obviously no thematic unity, and the lone excerpt de lege Rhodia de iactu belongs to the Varia. Actually, the text of D 14.2.3 is rather redundant with regard to D 14.2.2.1, as it merely specifies that contributio may derive from discarding the riggings of the ship (“arbor aut aliud navis instrumentum”), if it is done in order to remove a common danger (“removendi communis periculi causa”).

D 14.2.4, on the other hand, is most substantial. Excerpted from Callis­tratus' second book of Quaestiones, it is the second longest text of D 14.2. It deals with the transfer of goods from a big ship to smaller riverboats, the central notion of navis salva (a prerequisite for contributio, only marginally mentioned by Paul in D 14.2.2), the possibility of multiple consecutive disas­ters, the anecdotic intervention of urinatores (rescue divers), occasionally seen at work in an excavated shipwreck, such as the Madrague of Giens in southern France,^[298] and eventually gets into the technicalities of deteriorating goods and their ever fluctuating value as a basis of reckoning for contributio. Both Sabinus (twice) and Papirius Fronto are cited in reference. In Lenel's Palingenesia,^[299] the excerpt is located next to a text concerning eviction in the context of the sale of real estate;^[300] and not too far from a text dealing with the related matter of direptio ex naufragio.^[301]

D 14.2.6 is excerpted from Julian's eighty-sixth book of Digesta and com­ments ad legem Rhodiam de iactu next to ad legem Aquiliam (D 9.2) and ad legem luliam de adulteriis (D 48.5).^[302] The series does not really make sense but for the fact that it deals with so-called leges. However, the connec­tion between the lex Aquilia, concerned with physical damage inflicted to other people's property, and the lex Rhodia de iactu is evident. The text deals with what sounds like a real, or at least realistic, case in view of the places mentioned: a ship was caught in a storm and had her rigging, mast and yard destroyed by a bolt of lightening. After emergency repairs in Hippo, in North Africa, she went on with her trip to Ostia and delivered her cargo without suffering any more damage. The question, which had already been answered in previous excerpts (D 14.2.2.1, and to some extent D 14.2.3 and 14.2.5.1), bears on whether the transporters (“hi quorum onus fuit”) should contribute to repair expenses. The answer is unsurprising:

non debere: hic enim sumptus instruendae magis navis quam conservandarum mercium gratia factus est.

it is not due: the expense was made to equip the ship rather than to save the cargo.

Real life legal practice is also meant to be reflected in Volusius Maecianus' text briefly described earlier (D 14.2.9). Although the text has been consid­ered spurious for many different reasons, it seems to me that Maecianus, in his capacity of secretary a libellis under Antoninus Pius, prefect of Egypt in the early 160s, and then legal counsellor of Marcus Aurelius and Lucius Varus, was best placed to unearth such a document and most likely to use it in his work. Nothing is known of the monograph De lege Rhodia, of which D 14.2.9 is the only known fragment.^[303] A provincial individual named Eudaimon of Nicomedia petitions the Emperor Antoninus (Antoninus Pius, Marcus Aurelius, or, less likely, Caracalla) to get redress from what is regarded as delinquent behaviour on the part of the local authorities (demosioi)^[304] after Eudaimon's shipwreck on some Cycladic island (Icaria). Although the reply of the emperor explicitly refers to a Rhodian maritime “law” (nomos ton Rhodion nautikos), the case deals, at best, only with a marginal aspect of the legal arrangement discussed by Paul: the status of shipwrecked goods. Eudaimon sues the demosioi for direptio ex naufragio, a practice perhaps common in ancient societies, which does not contradict the current opinion of other jurists, either Paul (D 14.2.2.8) or Julian (D 14.2.8), as long as the goods claimed by the demosioi have not been jettisoned, a point that the text does not specify. Both Paul and Julian insist on the fact that “res iacta domini manet” and “pro derelicto non habetur”. And Julian, in his second book Ad Minicium, discusses usucapio (acquisition of ownership through long-time possession in good faith). Let us note that Lenel connects this text with D 41.7.7 and places it just before D 45.1.62.^[305] While the former text discusses the very same topic as D 14.2.8 in the title pro derelicto, the latter deals with a slave asking the question in a stipulatio despite his master's refusal, with the effect that the promissor contracts anyway an obligation toward the slave's master.

If D 14.2.9 seems to have a rather loose connection with the main aspect of the legal arrangement known as the lex Rhodia de iactu, namely contributio, it is even more so with the tenth and last excerpt of title 14.2, which is mostly concerned with specific provisions in transportation contracts: price to be paid for the slaves who die during the trip, civil liability of the shipper who takes the initiative of transferring cargo from one ship to another not only without the customer's consent and knowledge, but against his expressed will, and finally compared costs of bulk transport with unit-based tariffs. If D 14.2.10 does not shed much light on the lex Rhodia, it reminds us of our initial statement, that the title on the lex Rhodia de iactu is nothing but a misplaced appendix to the actio locati conducti.

C.