[ULPIANUS libro quinquagensimo sexto ad edictum. ] §47.9.3.prquo naufragium fit uel factum est, si quis rapuerit, incidisse in hoc edictum uideatur.
[ULPIAN, on the Edict, book fifty-six.] In the place where a shipwreck occurs or has occurred, if anyone should plunder, he is to be deemed to fall under this edict.
qui autem rem in litore iacentem, postea quam naufragium factum est, abstulit, in ea condicione est, ut magis fur sit quam hoc edicto teneatur, quemadmodum is, qui quod de uehiculo excidit tulit.
However, one who has taken away property lying on the shore after the shipwreck has occurred is in such a position that he is rather a thief than liable under this edict, just like one who has taken what fell from a vehicle.
nec rapere uidetur, qui in litore iacentem tollit.
Nor is he deemed to plunder who picks up what is lying on the shore.
§47.9.3.1Deinde ait praetor 'rate naui expugnata'. expugnare uidetur, qui in ipso quasi proelio et pugna aduersus nauem et ratem aliquid rapit, siue expugnet siue praedonibus expugnantibus rapiat.
Next, the praetor says, 'when a raft or ship has been captured.' He is deemed to capture who plunders something in what is, as it were, the actual battle and fight against the ship and raft, whether he himself captures it or plunders while pirates are capturing it.
§47.9.3.2Labeo scribit aequum fuisse, ut, siue de domo siue in uilla expugnatis aliquid rapiatur, huic edicto locus sit: nec enim minus in mari quam in uilla per latrunculos inquietamur uel infestari possumus.
Labeo writes that it would have been equitable for this edict to apply whether something is plundered from a house or a villa that has been captured; for we are no less disturbed or can be infested by bandits on the sea than in a villa.
§47.9.3.3Non tantum autem qui rapuit, uerum is quoque, qui recepit ex causis supra scriptis, tenetur, quia receptores non minus delinquunt quam adgressores.
Moreover, not only he who plundered but also he who received under the circumstances written above is held liable, because receivers offend no less than attackers.
sed enim additum est 'dolo malo', quia non omnis qui recipit statim etiam delinquit, sed qui dolo malo recipit.
But indeed, the phrase 'with malicious intent' has been added, because not everyone who receives immediately offends, but he who receives with malicious intent.
quid enim, si ignarus recipit? aut quid, si ad hoc recepit, ut custodiret saluaque faceret ei qui amisserat? utique non debet teneri.
For what if he receives in ignorance? Or what if he received for this purpose, to guard it and keep it safe for him who had lost it? Surely he ought not to be held liable.
§47.9.3.4Non solum autem qui rapuit, sed et qui abstulit uel amouit uel damnum dedit uel recepit, hac actione tenetur.
Furthermore, not only he who plundered but also he who took away, or removed, or caused damage, or received, is held liable under this action.
§47.9.3.5Aliud esse autem rapi, aliud amoueri palam est, si quidem amoueri aliquid etiam sine ui possit: rapi autem sine ui non potest.
But it is clear that being plundered is one thing, and being removed is another, since something can be removed even without force, whereas it cannot be plundered without force.
§47.9.3.6Qui eiecta naue quid rapuit, hoc edicto tenetur.
He who plundered anything when a ship was cast ashore is held liable under this edict.
'eiecta' hoc est quod Graeci aiunt ἐξεβράσθη.
'eiecta' (cast ashore) is what the Greeks call ἐξεβράσθη.
§47.9.3.7Quod ait praetor de damno dato, ita demum locum habet, si dolo damnum datum sit: nam si dolus malus absit, cessat edictum.
What the praetor says about damage caused only applies if the damage was caused with malicious intent; for if malicious intent is absent, the edict ceases to apply.
quemadmodum ergo procedit, quod Labeo scribit, si defendendi mei causa uicini aedificium orto incendio dissipauerim, et meo nomine et familiae iudicium in me dandum? cum enim defendendarum mearum aedium causa fecerim, utique dolo careo.
How then can what Labeo writes stand, that if, for the sake of defending myself when a fire broke out, I demolished a neighbor's building, an action should be given against me both in my own name and that of my household? For since I did it for the sake of defending my own house, I certainly lack malicious intent.
puto igitur non esse uerum, quod Labeo scribit.
I therefore think that what Labeo writes is not true.
an tamen lege Aquilia agi cum hoc possit? et non puto agendum: nec enim iniuria hoc fecit, qui se tueri uoluit, cum alias non posset.
Can he, however, be sued under the Lex Aquilia? I do not think he should be sued; for he who wished to protect himself when he could not do so otherwise did not act unlawfully.
et ita Celsus scribit.
And Celsus writes to this effect.
§47.9.3.8Senatus consultum Claudianis temporibus factum est, ut, si quis ex naufragio clauos uel unum ex his abstulerit, omnium rerum nomine teneatur.
A senate decree was made in the time of Claudius that if anyone took away nails from a shipwreck, or even one of them, he should be held liable in the name of all the property.
item alio senatus consulto cauetur eos, quorum fraude aut consilio naufragi suppressi uel uim fuissent, ne naui uel ibi periclitantibus opitulentur, legis Corneliae, quae de sicariis lata est, poenis adficiendos: eos autem, qui quid ex miserrima naufragorum fortuna rapuissent lucratiue fuissent dolo malo, in quantum edicto praetoris actio daretur, tantum et fisco dare debere.
Likewise, in another senate decree it is provided that those by whose fraud or counsel shipwrecked persons were suppressed or subjected to force so that they could not aid the ship or those in danger there, should be subjected to the penalties of the Lex Cornelia on assassins; and that those who plundered anything from the most miserable fortune of the shipwrecked or made a gain with malicious intent, should owe to the treasury as much as the action is given for under the praetor's edict.