[IDEM libro trigensimo quarto ad edictum. ] §14.2.2.prSi laborante naue iactus factus est, amissarum mercium domini, si merces uehendas locauerant, ex locato cum magistro nauis agere debent: is deinde cum reliquis, quorum merces saluae sunt, ex conducto, ut detrimentum pro portione communicetur, agere potest.
[IDEM libro trigensimo quarto ad edictum.] If a jettison has been made while a ship was in distress, the owners of the lost goods, if they had contracted for the carriage of the goods, must sue the master of the ship on the contract of letting (ex locato); the master can then sue the others, whose goods are safe, on the contract of hiring (ex conducto), so that the loss may be shared proportionally.
Seruius quidem respondit ex locato agere cum magistro nauis debere, ut ceterorum uectorum merces retineat, donec portionem damni praestent.
Servius indeed replied that they must sue the master of the ship on the contract of letting (ex locato) so that he may retain the goods of the other passengers until they pay their share of the damage.
immo etsi retineat merces magister, ultro ex locato habiturus est actionem cum uectoribus: quid enim si uectores sint, qui nullas sarcinas habeant? plane commodius est, si sint, retinere eas.
Nay, even if the master retains the goods, he will furthermore have an action on the contract of letting (ex locato) against the passengers; for what if there are passengers who have no baggage? Clearly it is more convenient, if there is any, to retain it.
at si non totam nauem conduxerit, ex conducto aget, sicut uectores, qui loca in nauem conduxerunt: aequissimum enim est commune detrimentum fieri eorum, qui propter amissas res aliorum consecuti sunt, ut merces suas saluas haberent.
But if the merchant has not chartered the whole ship, the master will sue on the contract of hiring (ex conducto), just as against passengers who have hired places in the ship; for it is most equitable that a common loss be shared by those who, through the loss of others' property, have succeeded in having their own goods safe.
§14.2.2.1Si conseruatis mercibus deterior facta sit nauis aut si quid exarmauerit, nulla facienda est collatio, quia dissimilis earum rerum causa sit, quae nauis gratia parentur et earum, pro quibus mercedem aliquis acceperit: nam et si faber incudem aut malleum fregerit, non imputaretur ei qui locauerit opus.
If, while the cargo is saved, the ship is damaged or has lost any of its rigging, no contribution shall be made, because the cause of those things which are provided for the sake of the ship is different from that of those for which someone receives a reward; for even if a blacksmith breaks his anvil or hammer, it would not be charged to the one who contracted for the work.
sed si uoluntate uectorum uel propter aliquem metum id detrimentum factum sit, hoc ipsum sarciri oportet.
But if that damage was done by the will of the passengers or because of some fear, this very damage must be made good.
§14.2.2.2Cum in eadem naue uaria mercium genera complures mercatores coegissent praetereaque multi uectores serui liberique in ea nauigarent, tempestate graui orta necessario iactura facta erat: quaesita deinde sunt haec: an omnes iacturam praestare oporteat et si qui tales merces imposuissent, quibus nauis non oneraretur, uelut gemmas margaritas? et quae portio praestanda est? et an etiam pro liberis capitibus dari oporteat? et qua actione ea res expediri possit? placuit omnes, quorum interfuisset iacturam fieri, conferre oportere, quia id tributum obseruatae res deberent: itaque dominum etiam nauis pro portione obligatum esse.
When several merchants had gathered various kinds of goods in the same ship, and moreover many passengers, both slaves and free persons, were sailing in her, a severe storm arose and a jettison was of necessity made. Thereupon these questions were asked: whether all must contribute to the jettison, even those who had loaded such goods as did not burden the ship, such as gems and pearls? And what portion must be paid? And whether contribution must also be made for free persons? And by what action can the matter be settled? It was held that all whose interest it was that the jettison be made must contribute, because the saved property owes this contribution; and therefore the owner of the ship also is bound for his share.
iacturae summam pro rerum pretio distribui oportet.
The sum of the jettison must be distributed according to the value of the things.
corporum liberorum aestimationem nullam fieri posse.
No valuation can be made of free persons.
ex conducto dominos rerum amissarum cum nauta, id est cum magistro acturos.
The owners of the lost goods will sue the sailor, that is, the master, on the contract of hiring (ex conducto).
itidem agitatum est, an etiam uestimentorum cuiusque et anulorum aestimationem fieri oporteat: et omnium uisum est, nisi si qua consumendi causa imposita forent, quo in numero essent cibaria: eo magis quod, si quando ea defecerint in nauigationem, quod quisque haberet in commune conferret.
Likewise it was discussed whether a valuation must also be made of each person's clothing and rings; and it was decided that all things must be valued, unless they were loaded for the purpose of consumption, in which class was provisions; all the more because, if at any time these should fail during the voyage, whatever each one had would be contributed to the common stock.
§14.2.2.3Si nauis a piratis redempta sit, Seruius Ofilius Labeo omnes conferre debere aiunt: quod uero praedones abstulerint, eum perdere cuius fuerint, nec conferendum ei, qui suas merces redemerit.
If a ship has been ransomed from pirates, Servius, Ofilius, and Labeo say that all must contribute; but what the robbers have taken away, he whose property it was must lose, nor is contribution to be made to him who has ransomed his own goods.
§14.2.2.4Portio autem pro aestimatione rerum quae saluae sunt et earum quae amissae sunt praestari solet, nec ad rem pertinet, si hae quae amissae sunt pluris ueniri poterunt, quoniam detrimenti, non lucri fit praestatio.
But the share is usually paid according to the valuation of the things that are safe and of those that are lost; nor does it matter if those which were lost could have been sold for more, since the payment is made for loss, not for profit.
sed in his rebus, quarum nomine conferendum est, aestimatio debet haberi non quanti emptae sint, sed quanti uenire possunt.
But in these things on account of which contribution is to be made, the valuation must be based not on what they were bought for, but on what they can be sold for.
§14.2.2.5Seruorum quoque qui in mare perierunt non magis aestimatio facienda est, quam si qui aegri in naue decesserint aut aliqui sese praecipitauerint.
Also for slaves who have perished in the sea, no valuation is to be made, any more than if any have died of disease on the ship or some have thrown themselves overboard.
§14.2.2.6Si quis ex uectoribus soluendo non sit, hoc detrimentum magistri nauis non erit: nec enim fortunas cuiusque nauta excutere debet.
If any of the passengers is insolvent, this loss will not fall on the master of the ship; for a sailor is not bound to investigate the financial circumstances of each person.
§14.2.2.7Si res quae iactae sunt apparuerint, exoneratur collatio: quod si iam contributio facta sit, tunc hi qui soluerint agent ex locato cum magistro, ut is ex conducto experiatur et quod exegerit reddat.
If the things which were jettisoned appear again, the contribution is discharged; but if the contribution has already been made, then those who have paid will sue the master on the contract of letting (ex locato), so that he may proceed on the contract of hiring (ex conducto) and return what he has recovered.
§14.2.2.8Res autem iacta domini manet nec fit adprehendentis, quia pro derelicto non habetur.
But a jettisoned thing remains the property of its owner and does not become the property of the finder, because it is not considered as abandoned.