Contribution in Ancient Rome and Byzantium: The Rhodian Law of Jettison
The name
Lex Rhodia de Iactu (the Rhodian Law of Jettison)
given to section 14.2 of Justinian’s
Digest hints at its perceived antiquity even in Roman times
.1 D.14.2; Watson, Digest, vol. 2, pp. 419–22. The
Digest is a collection of juridical opinions collected from about 40 different Roman jurists.
2 Ennio Cortese, Le grandi linee della storia giuridica medievale (Rome: Il Cigno, 2000), p. 68. Though Justinian transformed such opinions into
lex – enacted law – by promulgating the
Digest in the sixth century, it is important to remember that its provisions did not enjoy this status at the time of their writing. If section 14.2 of the
Digest itself is to be believed, the Roman Emperors deferred in matters maritime to the ancient Rhodian ‘law of the sea’, at least as long as this did not contradict Roman laws, thus placing its origins some 3,000 years ago.
3 D.14.2.9; Watson, Digest, vol. 2, p. 421. As the name further suggests, the law itself is primarily concerned with jettison, but does state that common contribution is due in some situations other than the throwing of cargo overboard. These include ransoms paid to pirates or enemies, masts cut during a storm, and a situation in which cargo is unloaded into lighters so that the ship can enter a river or port and then one or more of the lighters is subsequently lost. Wear and tear to the ship incurred during the course of a voyage is explicitly ruled out, with the Roman jurist Paul offering a memorable analogy: ‘the damage arising when a smith breaks his anvil or hammer would not be charged to the customer who gave him the work. But a loss at sea falls to be made good if it arises from a decision of the cargo owners or a reaction to some danger’.
4 D.14.2.2.1; Watson, Digest, vol. 2, p. 419. The damage must therefore clearly be an extraordinary sacrifice.
There is no mention of ‘Average’ in Roman law which talks only of contribution (contributio or collatio). Furthermore, the
Lex Rhodia does not explicitly express an overarching legal principle that lies behind these different situations. The opening provision comes close when it states that ‘the Rhodian law provides that if cargo has been jettisoned in order to lighten a ship, the sacrifice for the common good must be made good by common contribution’. However, the
Lex itself is, as with the rest of the
Digest, a compilation of the opinions of different Roman jurists discussing jettison and contribution – there are ten fragments in all compiled here – and there is no explicit attempt to make these opinions cohere. It is therefore unclear whether we should consider the examples it provides to be an exhaustive list of specific cases where contribution is due, or whether they are intended as illustrations of a more general rule.
5 Kruit, ‘General average’, p. 193. J.J. Aubert suggests that the original Roman position probably changed over time, moving from a ‘specific, narrow, and rather strict application towards a wider, more flexible, and gradually encompassing use’.
6 J.J. Aubert, ‘Dealing with the abyss: the nature and purpose of the Rhodian sea-law on jettison (Lex Rhodia de Iactu, D 14.2) and the making of Justinian’s Digest’, in J.W. Cairns and P.J. du Plessis (eds), Beyond Dogmatics: Law and Society in the Roman World (Edinburgh: Edinburgh University Press, 2007), 157–72, at p. 170. Despite the fact that there is no statement of a legal principle, the resulting collection diplays a coherent shared understanding of the division between intentional and inevitable damage, one that is not so far removed from our own contemporary understanding of Average. The idea that common contribution occurs only in a situation of peril also seems to be a point of agreement between the Roman jurists. Paul says that what is given for all must be made good by all (
omnium contributione sarciatur quod pro omnibus datum est), which, in isolation, would seem to suggest that any act which is made for the benefit of all should be made good, regardless of whether the situation was perilous.
7 D.14.2.2.1 in Watson, Digest, vol. 2, p. 419; The Digest of Justinian (Latin original), <www.thelatinlibrary.com/justinian.html> [accessed 18 August 2021]. Later on, however, Paul says that a loss suffered at sea is to be made good if it arises from ‘a decision of the cargo owners or in response to some danger’. Other stipulations strongly suggest that common good on its own is not a sufficient object, and that the ship must be saved from peril, with ‘common danger’ mentioned both by excerpts from the laywers Papinian and Hermogenian.
8 D.14.2.5.1; Watson, Digest, vol. 2, p. 421. This is also suggested by Callistratus’s remark to the effect that to qualify for contribution, goods must have been sacrificed to ‘save a sinking ship’.
9 D.14.2.4.1; Watson, Digest, vol. 2, p. 420. Even the contribution due when goods are unloaded into lighters and subsequently lost, which might be classified as an act for the ‘general benefit’ rather than a situation of peril, is linked to the salvation of the ship. Callistratus, when relating this scenario, says that the cargo is loaded into lighters ‘lest the ship come to harm outside of the river’.
10 Ibid. However unconvincing we might find this, Callistratus clearly connects the act of lightening the ship by means of lighters to a situation of immediate danger.
There are, however, some problematic elements that arise when examined closely. Though the
Lex – specifically the jurist Paul – asserts that contribution after jettison is ‘extremely fair’ (
aequissimum), Roman law has problems outlining how an obligation might be generated between two merchants who are not linked to one another through contract. The solution in the
Lex is therefore somewhat convoluted: the owner of the goods should sue the master on their contract, and the master then brings an action on his contract against those whose goods have been saved.
11 D.14.2.2; Watson, Digest, vol. 2, p. 419. The two parties are thus joined together in a triangular fashion by means of their separate contractual relationships with the master. Furthermore, the
Lex does not regulate several aspects of GA that would be of concern to later jurists. Unlike the YAR,
the
Lex Rhodia makes no suggestion that the sacrifice should be reasonable or necessary for the salvation of the ship. There is also little in the way of procedural norms. Most procedural information concerned with how cargo should be valued for the purposes of determining contribution (contributing property at its market value, sacrificed property at its cost price since ‘what is to be made good is loss suffered not gain forgone’).
12 D.14.2.2.4; Watson, Digest, vol. 2, p. 420 However, there is nothing concerning the procedure to be adopted during the jettison itself, an element which would become prominent in GA jurisprudence in the medieval and early modern periods, as we will see.
Though it had no direct bearing on cases in the early modern Mediterranean, it is worth at this point making mention of another normative text: firstly because it can be easily confused with the Roman
Lex Rhodia de Iactu, and secondly because its provisions prefigure several elements that we will find in later collections and practices, illustrating an important new direction of travel. This collection is the
Nomos Rhodion Nautikos (the Sea Law of the Rhodians or Rhodian Sea-Law), a compilation made sometime in the 600s or 700s AD in the Byzantine Empire.
13 On the Nomos Rhodion and ‘Average’ see Daphne Penna, ‘General average in Byzantium’, in Maria Fusaro, Andrea Addobbati, and Luisa Piccinno (eds), General Average and Risk Management in Medieval and Early Modern Maritime Business (Cham: Springer, 2023), 95–119. These provisions would later be incorporated into the collection known as the
Basilica around the year 900 AD, the last major collection of Byzantine law to be issued. Here it would sit alongside Greek translations and glosses of Justinian’s Latin
Digest, thus furnishing two different normative texts covering the subject of contribution.
For those looking to recover a doctrine of ‘Average’ from the
Nomos Rhodion, their anachronistic task is even more fraught here, for provisions on contribution are scattered in a number of different places across Part III of the work and are, moreover, closely entwined with other maritime issues such as shipwreck, partnership, and piracy.
14 Penna, ‘General average in Byzantium’, p. 104. A number of new elements are introduced. Chapter 9 of Part III introduces a procedural rule, whereby any master who is considering a jettison must first consult with his passengers and organise a vote among them before starting. This consultation, for all the practical, operational difficulties it undoubtedly presented in reality, would become an important element of risk-sharing jurisprudence. The chapter also introduces a curious element closely connected with partnership law, whereby if there has been an ‘agreement to share profit in common’ (
kerdokoinonia) then each man will bear the loss of a jettison according to his share of the profit. Most strikingly, Chapters 35 and 38 seem to uncouple contribution from the idea of voluntary sacrifice and transform it into a form of mutual insurance. Chapter 35 states that a jettisoned mast, ‘whether it breaks or has been cut down’, will be made good by all parties; Chapter 38 states that if a cargo of grain is damaged by a storm and there is no negligence on the part of the crew, then all parties shall bear the loss, with the master and crew given some salvage rights in compensation.
15 Penna, ‘General average in Byzantium’, pp. 110–11. We will find several of these elements echoed in later collections.