Lex Rhodia de iactu

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The lex Rhodia de iactu ( German  Great Haverei , literally " Rhodian law on the sea ​​litter ") was a provision of the customary contract law ( Locatio conductio operis ), which was adapted from Greek maritime law to Roman law , which applied to the sea ​​freight contract .

According to this, the owner of goods that had been thrown overboard by the sea carrier ( nauta ) of a ship in distress to rescue the ship or the other goods overboard could demand compensation. The compensation claims were distributed in the amount of the lost shares to all owners who had lost their goods. The sea carrier, for his part, was able to take recourse against the owners of the rescued goods, with which he could keep himself harmless. Thus, the idea of ​​a community of dangers is expressed in the determination.

Ancient law of the sea

The solidarity determination probably came from the 3rd century BC. And was named after the Greek shipping custom of the island of Rhodes . In the 2nd century BC This regulation found its way into the Roman ius gentium in order to find permanent acceptance there as a binding norm in private contract law. In the late classical digests there is a fragment under the title “ de lege Rhodia de iactu ”, which comes from the rescript “ ex lege Rhodia ”, which was written by the lawyer Lucius Volusius Maecianus from the 2nd century AD as an imperial reply to one legal inquiry under maritime law regarding the ownership structure of shipwrecked cargo. Here it was determined that the cargo lost in distress remains the property of the freight forwarder. Possession and actual custody of the thing were lost due to force majeure ( vis maior ), but not so the ownership of the thing.

The lex Rhodia defined a community of danger, which was made up of the ship owner and the goods owners (shipper). The financial risks that naturally arose from maritime trade should thus be minimized and distributed fairly. The sea ​​litter made to rescue the ship and the resulting loss of cargo or damage to the ship to preserve the cargo were divided proportionally among the parties concerned. In order to quantify the amount of damage, the value of the rescued goods was estimated in the port of destination, whereas the lost or sacrificed goods were estimated at the value in the port of departure. The triggering of a loss of ownership of the ship and cargo through piracy were also jointly borne. The costs of salvage measures to recover lost cargo were divided proportionally.

Modern maritime law

The solidarity aspect of the lex Rhodia de iactu still forms the basic principle of a solidarity maritime risk community. As a rule, however, compensation for damages in the context of average is no longer regulated proportionally, but determined according to (expertly determined) insurance-internal standards. The statutory provisions can be found in German law under §§ 588 ff. HGB and in Austrian law in §§ 700 ff. UGB .

literature

  • Dimitrios G. Letsios: Νόμος Ῥοδίων Ναυτικός. The sea law of the Rhodians. Studies on the law of the sea and merchant shipping in Byzantium (= publications on the law of shipping 1). Inst. D. Aegean Sea (Institouto Aigaiou tou Dikaiou tēs Thalassas kai tou Nautikou Dikaiou), Rhodes 1996.
  • Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , pp. 145-147.
  • Christoph Krampe : Roman law on the high seas. The art of the good and the just. In: Iole Fargnoli , Stefan Rebenich (ed.): The legacy of the Romans: Roman law and Europe. Haupt, Bern 2012, ISBN 978-3-258-07751-2 , pp. 111-150.
  • Albert Schug: The insurance concept and its historical basis. (= Contributions to fundamental questions of law. Vol. 6.) V & R Unipress, Göttingen 2011, ISBN 978-3-89971-647-4 , pp. 111–127.

Web links

Remarks

  1. ↑ a b c Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 146 f.
  2. ^ Wolfgang Kunkel , Martin Schermaier : Roman legal history. 13th edition. Böhlau, Cologne 2001, p. 97.
  3. ↑ D. 14, 2.
  4. ↑ Christoph Krampe : Roman law on the high seas , p. 121.
  5. ↑ Christoph Krampe: Roman law on the high seas , p. 113.
  6. ↑ Christoph Krampe: Roman law on the high seas , p. 125.
  7. ↑ Christoph Krampe: Roman law on the high seas , p. 144.
  8. ↑ HGB in the new version of the 5th book of the HGB - Maritime Trade Law - which has been in force since the law on the reform of maritime trade law came into force on April 25, 2013 . Until April 24, 2013, the general average was regulated in Sections 700 ff. Of the Commercial Code.
  9. ↑ Christoph Krampe: Roman law on the high seas , p. 131.
  10. ^ Wolfgang Kunkel, Martin Schermaier: Roman legal history. 13th edition. Böhlau, Cologne 2001, p. 97.
  11. ↑ Corporate Code: The German Commercial Code (HGB) was extensively amended by the Commercial Law Amendment Act (HaRÄG BGBl I 2005/120) and renamed accordingly.