[CALLISTRATUS libro secundo quaestionum. ] §14.2.4.prNauis onustae leuandae causa, quia intrare flumen uel portum non potuerat cum onere, si quaedam merces in scapham traiectae sunt, ne aut extra flumen periclitetur aut in ipso ostio uel portu, eaque scapha summersa est, ratio haberi debet inter eos, qui in naue merces saluas habent, cum his qui in scapha perdiderunt, proinde tamquam si iactura facta esset: idque Sabinus quoque libro secundo responsorum probat.
[CALLISTRATUS, from the second book of Questions.] For the sake of lightening a loaded ship, because it had not been able to enter a river or a port with its cargo, if certain goods were transferred into a skiff so that the ship might not be endangered either outside the river or in the mouth or the port itself, and that skiff was sunk, a calculation of contribution ought to be made between those who have their goods safe in the ship and those who lost them in the skiff, just as if a jettison had been made; and Sabinus also approves this in the second book of his Answers.
contra si scapha cum parte mercium salua est, nauis periit, ratio haberi non debet eorum, qui in naue perdiderunt, quia iactus in tributum naue salua uenit.
On the other hand, if the skiff is safe with a part of the goods, but the ship has perished, no calculation of contribution ought to be made for those who lost their goods in the ship, because a jettison only comes into contribution if the ship is saved.
§14.2.4.1Sed si nauis, quae in tempestate iactu mercium unius mercatoris leuata est, in alio loco summersa est et aliquorum mercatorum merces per urinatores extractae sunt data mercede, rationem haberi debere eius, cuius merces in nauigatione leuandae nauis causa iactae sunt, ab his, qui postea sua per urinatores seruauerunt, Sabinus aeque respondit.
But if a ship, which was lightened in a storm by the jettison of the goods of a single merchant, was sunk in another place, and the goods of some merchants were recovered by divers for a reward, Sabinus likewise answered that a calculation of contribution ought to be made for him whose goods were jettisoned during the voyage for the sake of lightening the ship, by those who afterwards saved their own goods by means of divers.
eorum uero, qui ita seruauerunt, inuicem rationem haberi non debere ab eo, qui in nauigatione iactum fecit, si quaedam ex his mercibus per urinatores extractae sunt: eorum enim merces non possunt uideri seruandae nauis causa iactae esse, quae perit.
Conversely, however, no calculation of contribution ought to be made for those who thus saved their goods, by the one who made the jettison during the voyage, even if some of these goods were recovered by divers; for their goods cannot be deemed to have been jettisoned for the sake of saving the ship, which has perished.
§14.2.4.2Cum autem iactus de naue factus est et alicuius res, quae in naui remanserunt, deteriores factae sunt, uidendum, an conferre cogendus sit, quia non debet duplici damno onerari et collationis et quod res deteriores factae sunt.
When, however, a jettison has been made from a ship, and the property of someone which remained in the ship has been damaged, we must see whether he should be compelled to contribute, since he ought not to be burdened with a double loss, both of contribution and because his property was damaged.
sed defendendum est hunc conferre debere pretio praesente rerum: itaque uerbi gratia si uicenum merces duorum fuerunt et alterius aspargine decem esse coeperunt, ille cuius res integrae sunt pro uiginti conferat, hic pro decem.
But it must be maintained that he ought to contribute according to the present value of the goods; thus, for example, if the goods of two persons were worth twenty each, and those of one of them, due to splashing, began to be worth ten, the one whose goods are undamaged should contribute for twenty, and the latter for ten.
potest tamen dici etiam illa sententia distinguentibus nobis, deteriores ex qua causa factae sunt, est utrum propter iacta nudatis rebus damnum secutum est an uero alia ex causa, ueluti quod alicubi iacebant merces in angulo aliquo et unda penetrauit.
It can nevertheless be said, according to another opinion if we make a distinction, as to what cause made them damaged, namely, whether the damage followed because the goods were exposed on account of the jettison, or indeed from another cause, such as because the goods were lying somewhere in some corner and the wave penetrated.
tunc enim conferre debebit: an ex priore causa collationis onus pati non debet, quia iactus etiam hunc laesit? adhuc numquam et si aspargine propter iactum res deteriores factae sunt? sed distinctio suptilior adhibenda est, quid plus sit, in damno an in collatione: si uerbi gratia hae res uiginti fuerunt et collatio quidem facit decem, damnum autem duo, deducto hoc, quod damnum passus est, reliquum conferre debeat.
For in the latter case he will have to contribute; but in the former case, ought he not to suffer the burden of contribution, since the jettison also injured him? Further, is it never so, even if the goods were damaged by splashing on account of the jettison? But a more subtle distinction must be applied, as to which is greater, the damage or the contribution: if, for example, these goods were worth twenty, and the contribution indeed makes ten, while the damage is two, he ought to contribute the remainder after deducting that which he suffered as damage.
quid ergo, si plus in damno erit quam in collatione? ut puta decem aureis res deteriores factae sunt, duo autem collationis sunt.
What then if there is more in damage than in contribution? For instance, the goods were damaged to the extent of ten aurei, while the contribution is two.
indubitatae utrumque onus pati non debet: sed hic uideamus, num et ipsi conferre oporteat.
Undoubtedly, he ought not to suffer both burdens; but here let us see whether contribution ought to be made even to him.
quid enim interest iactatas res meas amiserim an nudatas deteriores habere coeperim nam sicut ei qui perdiderit subuenitur, ita et ei subueniri oportet, qui deteriores propter iactum res habere coeperit.
For what difference does it make whether I have lost my goods by jettison, or have begun to have them damaged because they were exposed? For just as succour is given to him who has lost, so also ought succour to be given to him who has begun to have his goods damaged on account of the jettison.
haec ita Papirius Fronto respondit.
Papirius Fronto answered thus.