Lex Rhodia de iactu

Sometimes, however, the ship's master (magister navis)^[2043] was able to save the vessel from foundering by throwing goods overboard and thus lightening the ship.^[2044] Of course, in a situation of distress there is no time carefully to pick and choose and thus the magister navis and his deck-hands grabbed and jettisoned what was nearest or what was heaviest. But must the unfortunate owner of these goods then carry the loss? That would most certainly not be equitable. After all, his property was sacrificed in order to save that of the others: he incurred a loss for the common benefit. Obviously then, if the benefit was common, so should be the loss. "Si commune periculum aliter depelli non possit, quam rem alienam perdendo; earn perdere licet, damnum vero commune esse debet":^[2045] this is how, long after the demise of the Roman Empire, the underlying principle of natural equity was formulated; or, on an even more general level: "Omnium contributione sarciatur, quod pro omnibus impensum est."^[2046] These words are taken, almost verbatim, from the Digest, where we find the following statement by the jurist Paulus: "Lege Rhodia cavetur, ut, si levandae navis gratia iactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est."^[2047] It is essentially what has become known in England as a general average,^[2048] and is referred to in Germany as "(grosse) Haverei".^[2049] i ^[2050] In antiquity the doctrine goes back to one of the seafaring nations par excellence, the Rhodians. Their sea law was a sort of common lex mercatoria maritima for the states bordering on the Mediterranean Sea;^{141 * [2051] and part and parcel of these trade usages was the so-called lex Rhodia de iactu.[2052] Based on the idea of a community of risk and emanating from the principle of aequitas,[2053] late Republican jurisprudence received the lex Rhodia de iactu into Roman law:[2054] not by way of legal surgery, but in a most natural or homeopathic manner.}

Their conception of what was due, ex bona fide, between the parties gave the Roman lawyers ample scope to refine the application of the lex Rhodia; one basic requirement for the duty of contribution being that the ship was saved from this specific danger.^[2057]" The Digest title 14, 2 is full of interesting cases and distinctions. Thus, we read of a ship which encountered two storms on its voyage: from the first it emerged unscathed because the goods of one merchant had been thrown overboard, but in the second one it sank. The shipwreck, however, seems to have occurred in shallow waters, for paid divers managed to recover the cargo of some of the other merchants. Do they have to contribute to the first merchant's loss?¹⁵' Do those locatores, whose goods added no weight to the ship ("velut gemmas margaritas") have to contribute like everyone else?^{1 2} Or: the mast and the riggings of a ship were struck, adverso tempestate, by lightning.

(b) Subsequent history of the lex Rhodia

The history of the lex Rhodia de iactu can be told as one of gradual extension. Confined, originally, to iactus mercium, it was already in classical Roman law applied to cases where part of the cargo was used to ransom the ship from pirates (redemptio a piratis),¹⁵⁴ where the mast of the ship was cut down and cast off removendi communis periculi causa¹⁵⁵ or where a dinghy was lost, onto which part of the cargo had been transferred in order to lighten a ship that could otherwise not have entered a river or port.¹⁵⁶

In the Middle Ages¹⁵⁷ the lex Rhodia began to be applied beyond the area of maritime law, because the basic underlying principle lent itself to generalization. Thus, Accursius emphazised: "Et not. quod si quid pro communi utilitate, vel alterius damni patior, quod mihi est restitutio facienda...,^1,158 Fire and war were the principal disasters to ^{[2058] [2059] which the idea of contribution was applied: "Igne orto in aliqua contrata, si domus alicuius destruitur a vicinis, ne ignis alterius extendatur, fieri potest hire", and "Milites, qui tempore propter defensionem vadunt ad bellum, si ibi perdunt equum, sibi per communem debet emendare."159 As in the case of shipwreck, we are dealing with a common danger, in which the property of one party is used to save that of the others.}

Another momentous innovation in the application of the lex Rhodia also goes back to Accursius. In his gloss "agere potest" ad D. 14, 2, 2 pr., he suggested that the person whose goods had been sacrificed should be able to proceed directly ("via recta") against the other persons deriving a benefit therefrom, for their pro rata contribution.

"A person who has sacrificed his property in case of emergency in order to prevent greater damage to himself and others, shall be indemnified proportionally by those who have derived an advantage therefrom. "^,IM>

In its typical fatherly tone, the second sentence of § 1043 ABGB kindly informs the reader that the particular application of the provision in regard to maritime risks is set forth in the maritime laws. This, then, ^{[2060] [2061] IS [2062] [2063] [2064] [2065] [2066] is the lex Rhodia proper, but its range of application may well be somewhat limited in practice. Austria, after all, is not a naval power of the first order. However, all the great seafaring nations of modern times have adopted the same or very similar rules.[2067] The lex Rhodia de iactu, as applied in Roman law, was taken over by the Italian city-states and became part of the medieval codifications of maritime law all over Europe, up to the Baltic Sea.}