로마 고전법상 共同海損에 관한 로도스 해법(Lex Rhodia de iactu) ― 학설휘찬 제14권 2절에 대한 역주를 겸하여 ―

The doctrine of general average in classical Roman law can be summarized as follows. First, the Rhodian Sea Law of Jettison, formed and developed in ancient Greece, was voluntarily introduced in Rome as some kind of maritime custom (law) by the end of the republic (Servius) at the latest. The Roman jurists elaborated the doctrine of the requirements and effects of the general average based on their own rules of discovery and interpretation of the law. Second, as can be seen in the case of the pirates of Servius and the case of cargo transshipped into a boat and lost due to shipwrecking, the concept of ‘jettison’ has already begun to be extended from the end of the Republic. At last, the ‘jettison’ came to have the meaning of sacrifice to avoid common danger. Thirdly, while shipowner and shippers had to share the partial damage of the ship and the removal of pieces of equipment to avoid the common danger, the loss of equipment due to natural disaster was not considered to be shared by the shippers whose goods are saved due to the jettison. Fourth, it appears that it began as early as the end of the republic when the classical law established ship conservation (“salva nave”) as a requirement for gross average. Fifth, the conservation of ships and cargo, which is a requirement of the general average, was not required up to the port of destination, but it had to be established at least within a certain place and time range. Sixth, clothes and jewelry carried by passengers were also included in the saved cargo, but the food carried for consumption was excluded from the saved goods. Seventh, it is difficult to know a clear position on the causality between jettison and conservation of ship and cargo. But the characteristics of jettison lead to the supposition that the party which denies the causality had to prove that the ship and cargo were preserved by another cause (for example, sudden interruption of marine danger). Eighth, in classical law, the actio locati and conducti against or the captain were recognized as a means to realize the gross average. According to Servius at the end of the Republican era, the shipper of sacrificed cargo could sue the captain to seize the saved cargos of other shippers, while the last classical jurist Paulus took also the actio locati of the captain into account if the retention right of captain could not be exercised. It is not clear that he should be sued by the shipper who suffered the loss to exercise retention right and the actio locati and conducti. Ninth, the captain was not responsible for the contributions of insolvent shippers, and the captain was not obliged to investigate the property of the obligee. Tenth, the late classical jurist Callistratus decided the case in which some shipped goods were exposed by the jettison of other goods and damaged by seawater according to the following distinction. If the share of cargo is greater than its damage, the amount of difference must be shared. In the opposite case, the damage should be shared by other shippers of saved cargos. Besides, the value of the lost cargo is calculated based on the value at the port of departure, while the value of the saved cargo is based on the value at the port of destination.