The present essay focuses on the Byzantine sources on General Average and is a contribution on the evolution of the laws of General Average (GA). The GA principle has its roots in very ancient times. In Justinian’s Digest (sixth century AD) we find fragments of Roman jurists discussing Average rules from the so-called Rhodian law of jettison (lex Rhodia de iactu). There is also a later text, a Byzantine collection of maritime law provisions, compiled in the seventh or eighth century, the Νόμος Ροδίων Ναυτικός, which is known under the name Rhodian Sea-Law, and includes GA rules. The aim of this paper is to examine the GA rules in the Digest and in the Byzantine collection Rhodian Sea-Law and their transmission in the Basilica, which were promulgated around 900 AD and are considered the last important extensive Byzantine legislation. Short references will also be made to the development of GA rules after the Basilica.

General Average, the Rhodian Law of Jettison and the Roman Jurists: The Digest (6th c. AD)

Before very long, a wind of hurricane force, called the Northeaster, swept down from the island. The ship was caught by the storm and could not head into the wind; so we gave way to it and were driven along [...]. We took such a violent battering from the storm that the next day they began to throw the cargo overboard. On the third day, they threw the ship’s tackle overboard with their own hands. When neither sun nor stars appeared for many days and the storm continued raging, we finally gave up all hope of being saved.Footnote 1

This extract is an account by the evangelist Luke of the adventurous journey of Paul the Apostle to Rome around 60 AD, when he was taken as a prisoner to the capital to appeal to the emperor, Nero, as a Roman citizen. As can be seen from the passage, the author vividly describes the desperate actions of the seafarers as they tried to save the ship and themselves, when the ship was hit by a storm. St Paul’s shipwreck is just one, famous, example of a common situation which has occurred for centuries, if not millennia: the need to jettison things from ships when there is a risk of shipwreck. If material is jettisoned, how is the liability to be fairly apportioned among the owners of the material? The rules on how to do this constitute the laws of GA.

The laws of GA have their roots in very ancient times. Justinian’s legislation, promulgated in the sixth century AD, consists of the Codex (imperial laws), the Digest (an anthology of extracts from the writings of the best Roman jurists, most of whom had lived in the second and third century AD), the Institutes (an introductory textbook, which received the status of a law), and the Novels (imperial laws after the Codex was promulgated).

The second title of the fourteenth book of the Digest is entitled “De lege Rhodia de iactu” (“Concerning the Rhodian Sea-Law of Jettison”),Footnote 2 in which Roman jurists discuss issues of GA and contribution. This Digest title consists of ten fragments from the writings of Paul,Footnote 3 Papinian,Footnote 4 Callistratus,Footnote 5 Hermogenian,Footnote 6 Julian,Footnote 7 Volusius MaecianusFootnote 8 and Labeo.Footnote 9 The name Rhodian Sea-Law is mentioned three times: once in the title itself as “Lex Rhodia de iactu” and in two fragments.

The first short fragment, which also forms the beginning of this title, is from the Sententiae of Pseudo-PaulFootnote 10 and reads as follows: “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 by common contribution”.Footnote 11

The second fragment is from a work by Volusius Maecianus. It is given in Greek, which is interesting as nearly all the Digest fragments are in Latin. After the name of the author, we find “From the Rhodian Law” (ex lege Rodia), then the Greek text:

Petition of Eudaemon of Nicomedia to the Emperor Antoninus: “Antoninus, King and Lord, we are shipwrecked in Icaria and robbed by the people of the Cyclades”. Antoninus replied to Eudaemon: “I am master of the world, but the law of the sea must be judged by the sea law of the Rhodians where our law does not conflict with it. Augustus, now deified, decided likewise”.Footnote 12

According to this fragment, Emperor Antoninus Pius (86–161 AD) acknowledged the importance of the so-called sea law of the Rhodians.Footnote 13 The Roman jurists’ references to a “sea law of the Rhodians” are an indication that there must have been a legal text dealing with maritime issues which was somehow related to Rhodes. Moreover, the fact that one of the Roman fragments referring to this law is actually included in Greek within the Digest could be another indication that this law was indeed of Greek origin. We know that in ancient times Rhodes was an important island for its trade and naval activities.Footnote 14 The fact that one of the seven wonders of the ancient world, the Colossus of Rhodes, a giant statue of the sun god Helios was situated, according to the sources, in the harbour of Rhodes cannot be a coincidence. In his Geografica, Strabo exalted the role of Rhodes in maritime affairs:

The city of the Rhodians lies on the eastern promontory of Rhodes; and it is so far superior to all others in harbours and roads and walls and improvements in general that I am unable to speak of any other city as equal to it, or even as almost equal to it, much less superior to it. It is remarkable also for its good order, and for its careful attention to the administration of affairs of state in general; and in particular to that of naval affairs, whereby it held the mastery of the sea for a long time and overthrew the business of piracy, and became a friend to the Romans and to all kings who favoured both the Romans and the Greeks.Footnote 15

Cicero too acknowledged the skill and reputation of Rhodian seamen.Footnote 16 Despite several testimonies confirming the leading role of Rhodes in maritime issues, we do not have any trace of the ancient so-called “Rhodian Law”. All we have of the provisions of the ancient Rhodian Law regarding GA are the references to that law in the Digest.

How, then, is GA regulated in the Digest? After the first short general fragment from the Sententiae of Pseudo-Paul, a second lengthy fragment follows by the real Paul, from his work on the Edict, where detailed information is given on when and how GA rules will be applied.Footnote 17 The general principle which appears from this fragment is that, if a ship faces difficulty when travelling and cargo is thrown overboard in order to save the ship, and the ship is indeed saved, the owner whose cargo was overthrown has a right to compensation.

Details of the rules regarding jettison are not found in the Digest; for example, it is not clear whose decision it is to throw the goods, and which goods are to be chosen.Footnote 18 In one fragment it is mentioned “Those who jettisoned goods for the purpose of lightening the ship do not intend to abandon them…”Footnote 19 On a strict, grammatical interpretation it seems that it is the owner who can choose whether to jettison the goods or not, but there are other fragments that indicate that the merchant did not jettison the goods, implying that it was not his choice.Footnote 20 Moreover, in another book of the Digest, we read of a case in which a person is not liable when he throws overboard another man’s goods in order to save his own.Footnote 21

What is, however, firmly regulated in the Digest book 14,2 entitled “De lege Rhodia de iactu”, and is by far the most important contribution of this part of the Digest, is the legal solution used to pay the compensation. When trying to distribute the loss proportionally among all parties, a legal problem arises: the person who has suffered damage has no legal relationship with the other parties on board. In other words, there is, prima facie, no basis in law for him to receive compensation from the other passengers for his sacrifice for the common good. The Rhodian law of jettison provides a fair solution to this problem by means of an elegant legal construction. The key element of this construction is the contract of carriage. As Paul explains, the owner who has lost his cargo can sue the master on his contract of carriage (locatio conductio operis) with the master.Footnote 22 The master can then sue, on their contracts of carriage, the passengers whose goods have been saved. Thus, the loss is distributed proportionally.

It is stressed that contribution is not due “if the ship suffers damage or loses any of its gear and the cargo is unharmed”.Footnote 23 The reason for this is that property related to the ship is different from the property of the cargo-owners who have paid freight for it. However, if the damage to the ship is caused by the decision of the cargo-owners, or as a reaction to some danger, compensation is distributed. A concrete example of this situation is given by Papinian, who mentions that “contribution is due if the mast or other piece of ship’s equipment is cast off to allay a common danger”.Footnote 24 In other words, since there was a common danger (communis periculi causa), everyone who benefited from the jettison must make a contribution. It is also mentioned that everyone should contribute if the ship is ransomed by pirates but, if property is stolen by robbers, the owners have to bear the loss individually.Footnote 25

If the jettisoned good comes on the surface, contribution is not due and, if someone has already paid contribution, he can ask it back from the master. The legal basis for this is, once more, the contract of carriage.Footnote 26 The reason for this is that, although they were ‘sacrificed’ for the common good,Footnote 27 jettisoned goods are not considered abandoned and remain the property of their owners.

Roman jurists also discuss issues concerning the estimation of the contribution; for example, which goods are valued and how. In principle, the value of all goods is taken into consideration except those goods destined for consumption, for example, food.Footnote 28 Some Roman jurists suggest that when a ship is ransomed by pirates everyone is liable to pay contribution because this is a common danger. However, if thieves steal the property of some person on the ship then this person has to bear the loss on his own. When estimating the total amount of the loss, the market value of the property is decisive.Footnote 29 Further on, it is mentioned that:

the usual amount of contribution depends on the value of the property saved and lost respectively. It is immaterial if the property lost could have been sold at a premium, since what is to be made good is loss suffered and not gain foregone. But the valuation of the property from which contribution is due must be in terms of what it would fetch, not what it cost.Footnote 30

In other words, the goods that are saved are to be valued according to the price they would fetch when sold.

Slaves do not form part of the assets to be valued if they have been drowned, or have died on board because of a sickness, or have thrown themselves into the sea. In another fragment it is mentioned that, when estimating the value of the saved goods in order to calculate the contribution, one should also take into consideration whether the saved goods have suffered damage. In that case, the contribution should be valued on the basis of what the goods are worth taking into account the damage. The following example is given: “thus, for example, if two people had goods worth twenty and owing to water damage the goods of one of them are reduced in value to ten, the one whose goods are undamaged should contribute for twenty and the other for ten only”.Footnote 31 The cause of damage is in this case decisive in order to apply this rule and pay less contribution, meaning that the damage has to occur because of the jettison.

In one fragment, reference is made to the issue of potential fault of the master and crew, and the remedies available based on the contract of carriage.Footnote 32 If a ship is hired for the delivery of goods and the master transfers the goods in another less good vessel knowing that the person who has hired the ship would disapprove, and eventually the ship sinks with the cargo, the person hiring the ship is allowed to bring an action against the master based on his contract of carriage with him. The same applies when in the contract is agreed that the master must pay a fixed penalty if he fails to deliver the goods at the agreed destination by a certain date. In both cases the master or the crew have to be at fault, due to intention or negligence.Footnote 33 Finally, other maritime issues including maritime loans and shipwrecks are also regulated in Justinian’s Codex. As they do not form strictly part of the laws of GA they are not examined here.Footnote 34

General Average in the Byzantine Collection Entitled “The Rhodian Sea-Law” (7–8th C. AD)

The name “Rhodian Sea Law” is also related to a later Byzantine collection. In the seventh or eighth century AD a collection of maritime law was compiled and was entitled The Sea-Law of the Rhodians (Νόμος Ῥοδίων Ναυτικός). However, it is generally, and somewhat confusingly, known by the same name, The Rhodian Sea-Law, as the Lex Rhodia de iactu of the Digest.Footnote 35 Hence, to avoid any misunderstanding, I clarify that the name “Rhodian (Sea) Law” can refer to the following three texts: (1) the ancient Rhodian (Sea)-Law of which we have no direct fragment; (2) references of Roman jurists to the ancient Rhodian (Sea)-Law and particularly the GA provisions of it and (3) the Byzantine collection The Sea-Law of the Rhodians (the Nomos Rhodion Nautikos), which is known in literature as The Rhodian Sea-Law.

The Byzantine collection The Rhodian Sea-Law has furthermore a complicated manuscript tradition which creates many problems and has led to many theories. The critical edition which is nowadays in use consists of a preface and two parts, the pars secunda and the pars tertia, mentioned as part II and part III respectively in this edition. The preface is furthermore preserved in two versions and it has been suggested that it was added in a later period to the text.

How is GA regulated in this collection? Is GA regulated in a different way from that found in the Digest fragments? First, rules on GA and jettison are not concentrated in one specific part of The Rhodian Sea-Law but are scattered in several chapters of part III and are closely related to contribution, piracy, contracts of partnership and shipwreck issues. It is therefore sometimes difficult to distinguish the rules on GA from other rules, and difficult to systematize them. The first reference to GA in The Rhodian Sea-Law is made in Chapter 9 of part III:

If the masterFootnote 36 is deliberating about jettison he must inquire of the passengers who have goods on board, and they shall vote on what should be done. The goods shall be brought into the contribution; bedding, clothes and utensils shall all be valued, and if there is jettison, [the share of] the masterFootnote 37 and [each of] the passengers [that is jettisoned] shall not exceed the value of one pound, [the share of] a steersman and a commander of the bow no more than half a pound, [and the share of] a sailor no more than three grammata.Footnote 38 Boys and anyone else on board who are not being carried for sale shall be valued at two minas.Footnote 39 Similarly, if goods have been taken away be enemies, robbers or by those on state service, these shall be brought into calculation, together with the belongings of the sailors, and shall come into contribution on the same principle. If there is an agreement to share profit in common, then after everything on board the ship and the ship itself have been brought to contribution, then each man shall bear the loss that has occurred in proportion to his share of the profit.Footnote 40

This fragment confirms the rule that we have seen in the Digest, namely when goods are jettisoned contribution should be made by all passengers who have goods on board. However, the above fragment differs from the relevant Digest rules on jettison and GA in at least two points.

First, the procedure described in this collection seems to be more complicated, since consultation is needed on which goods will be jettisoned, although it is doubtful whether such elaborate rules about consultation and voting procedures could have been observed in the reality of life-threatening storms at sea.Footnote 41 Secondly, in the Digest, as we have seen, the key element in the legal construction used in order to resolve the problem of compensation is the contract of carriage. In this fragment of The Rhodian Sea-Law the proportional distribution of the contribution of the passengers is based on some kind of agreement that has been made beforehand, “the agreement for sharing in gain”. This agreement must be related to partnership agreements, something that is also regulated in The Rhodian Sea-Law.Footnote 42

In Byzantine law, as in modern law, a “partnership” was an agreement between two or more persons, the aim of which was to co-operate with a view to make a profit. A special type of partnership was developed in Byzantium for financing maritime trade: the chreokoinonia, which can be compared to the Italian commenda.Footnote 43 In the chreokoinonia, one partner or partners provided the capital, the other partner or partners the work (he/they undertook the journey). The chreokoinonia became popular because it allowed a supplier of capital to share in the profit if the voyage went well, rather than being restricted to receiving a fixed amount which stayed the same irrespective of the success or failure of the venture. It was also generally more flexible because the parties could regulate all sorts of matters between so long as it was lawful to do so.

The Greek word that is used in Chapter 9 of part III of The Rhodian Sea-Law cited above is “kerdokoinonia”,Footnote 44 literally a “partnership in gain”. As Olga Maridaki-Karatza notes: “The beginnings of the maritime partnership are regarded as being the profit-sharing system (kerdokoinonia) referred to in the index to The Rhodian Sea Law or the system of debt-sharing (chreokoinonia) defined in the relevant provision of the same collection”.Footnote 45 The word kerdokoinonia is indeed mentioned in the Index, that is the table of chapters of part III of The Rhodian Sea-Law,Footnote 46 and also in the above fragment of Chapter 9 of the III part cited above.Footnote 47

Chapter 10 of part III of The Rhodian Sea-Law states that if the loss or shipwreck occurs because of the negligence of the master or his crew, they will have to compensate the merchant for his damages. If, on the other hand, the ship and cargo are lost as a result of the merchant’s negligence, he bears the liability for compensation arising out of the loss caused by the shipwreck. Finally, if the shipwreck or loss occurs without the fault of the master, the crew or the merchant, then what is saved of the ship and the cargo is to come into contribution.Footnote 48 There are more rules that are related to contribution and jettison and make a distinction on whether, in every discussed case, it was the fault of the master or that of the merchant for the jettison in order to estimate the contribution in every case. Characteristic is Chapter 26 of the part III of The Rhodian Sea-Law:

If any of the sailors or the officers sleep off the ship and it happens that the ship is lost, at night or day, all the losses shall be borne by the sailors and officers who slept off the ship, while those who remained on board shall not be liable. Those who are negligent must make good to the owner of the ship the damage caused by their negligence.Footnote 49

Here, a distinction is made between the sailors and masters who slept on shore, and are thus liable if the ship is wrecked, and the ones who were on board and presumably—as they were on board—did their best for saving the ship and are thus, not liable. If it is the merchant’s fault, he will have to pay for the damage done if the ship is lost. Such an example is given in Chapter 28 of the part III of The Rhodian Sea-Law:

If a ship is hindered while loading by the merchant or partner and the time fixed for loading passes, and it happens the ship is lost due to piracy, fire or shipwreck, the one who caused the delay shall bear the loss.Footnote 50

Based on this passage, we can conclude how important time limits were in loading a ship. Obviously when the ship was at the phase of being loaded, it was more vulnerable to attacks. It was thus important to limit this time and to respect it. If a merchant or partner did not respect the time fixed for loading, and by exceeding this time the ship was wrecked, then this merchant or partner had to pay for the damage, as he had caused the hindrance resulting in the ship being lost. Not only the time fixed for loading should not be exceeded by the merchant, but also the place set for the loading of the cargo should not change, as it is described in the following passage, which is Chapter 29 of the part III of The Rhodian Sea-Law:

If the merchant does not provide the cargo at the place agreed, and the agreed time passes, and it happens that the ship is lost to piracy, fire or shipwreck, then the merchant shall bear all the losses of the ship. If the days set have not passed and one of these said things happens, then they shall all come into contribution.Footnote 51

In short, the point of the aforementioned provisions was to confirm that everything that had been agreed in the contract would be observed. One could consider these provisions superfluous because once a contract has been made, and provisions are included about the time limits and places of loading cargo, these provisions have to be observed anyway; in other words, if there is a breach of contract by one of the parties, that party is liable. Was is then necessary to include such provisions in The Rhodian Sea-Law? The ratio of these provisions was certainly to confirm what had been agreed in the contract. Moreover, the two examples mentioned in The Rhodian Sea-Law (observing the fixed time limits, and the place of loading cargo) were considered important and perhaps there were many cases in which, although these issues had been included and had been agreed upon in a contract, merchants or partners did not observe them in real practice and that is why it was considered necessary to include such provisions in The Rhodian Sea-Law with specific examples.

Chapters 30 and 31 of the part III of The Rhodian Sea-Law deal with the estimation of the contribution in cases in which the whole ship is loaded by a merchant, and the cargo is gold or silver, and the ship faces a maritime danger. We read in Chapter 30 of the part III of The Rhodian Sea-Law:

If the merchant, having loaded the ship, has gold with him and it happens that the ship suffers one of the dangers of the sea and the cargo is lost and the ship destroyed, then the salvage from the ship and the cargo shall come into the contribution, but the merchant shall take his gold with him. He shall pay a tenth [of the gold] if he survived without holding fast to the tackle of the ship – he shall also pay the half-freight charge in accordance with the contract – but if he survived by holding on to the tackle of the ship, he shall pay one fifth [of the gold].Footnote 52

What is crucial about the estimation of the contribution is whether the merchant actually used parts of the ship to be saved or not. By reading passages like this, one really has to ask oneself how the proof procedure would have been carried out in practice. In other words, it would be difficult to prove whether the merchant had actually held to the tackle of the ship in order to be saved. What happened, for example, if the merchant had held to it for a short time and then abandoned it? Who could prove this in a situation of a catastrophic storm, for example? In Chapter 31 of the part III of The Rhodian Sea-Law we read:

If the merchant has loaded the ship, and something happens to the ship, all the salvage shall come into the contribution from both sides. But if the silver is saved, he [the merchant] shall pay a fifth of it. The masterFootnote 53 and the crew shall help in the salvage.Footnote 54

The master and the crew are explicitly asked to help by the salvaging of the goods. According to Ashburner, “this is not a mere exhortation. Probably remissness on the part of the master or sailor would disentitle him to his percentage”.Footnote 55 In other words, if the master and crew do not help in salvaging the goods, presumably they will not be entitled to receive any percentage of what has been saved.Footnote 56

As in the Digest, special reference is made to the jettison of a ship’s mast. We read in the Chapter 35 of part III of The Rhodian Sea-Law:

If a ship jettisons its mast, whether it breaks on its own or is cut down, then all the crew and the merchants and the cargo and the ship, whatever is saved, shall come into contribution.Footnote 57

In the Digest, it was clearly mentioned that contribution followed only if the mast was sacrificed because of a common danger. In the above abstract of The Rhodian Sea-Law, it is not clarified why the mast has to be jettisoned. No reference is made to a danger that has to be confronted by jettisoning the mast. It seems that the ship’s mast in this case has to be thrown overboard because it is in the way; it broke or it was cut down (yet we do not know why it was cut down), it forms an obstacle and has to be jettisoned. In any case, it is mentioned that contribution will follow if the mast is jettisoned. Further on, in Chapter 43 of part III of The Rhodian Sea-Law common danger is taken into account, when it is mentioned that if the mast and other parts of the ship break down because of the bad weather conditions, contribution should be made:

If a ship is caught in a storm and jettison of goods happens and its sailyards, mast, tillers, anchors and rudders break, then all these shall come into the contribution along with the value of the ship and the salvaged cargo.Footnote 58

Moreover, in the Chapter 38 of part III of The Rhodian Sea-Law reference is made to jettison because of a danger that the ship faces:

If a ship carrying grain is caught in a storm, the masterFootnote 59 shall provide skins and the crew shall bail out the bilge water. If they are negligent and the cargo has become wet from the bilge water, the crew shall make good the loss. But if the cargo is damaged by the storm, then the masterFootnote 60 and the crew together with the merchant shall bear the loss, and the master together with the ship and the crew shall receive six hundreds of what is salvaged. If jettison into the sea occurs, the merchant shall be the first to throw and then the crew shall set to work. After this none of the crew shall steal. If anyone does so, the thief shall pay back double and lose all of his gain [from the salvage].Footnote 61

In the above fragment, the ship faces danger because of a strong wind. If cargo is destructed because of the gale, i.e. because of circumstances beyond the control of the crew, an “act of God”, then all passengers, crew and merchants have to share the loss. Moreover, in this fragment (Chapter 38), the procedure of jettisoning is slightly different than in Chapter 9, discussed above. In Chapter 38, it is stated that if goods have to be thrown to the sea in order to lighten the ship, the merchants will throw first and then the sailors will take a hand. There is not a consultation here between the master and the merchants. Although not stated in so many words, based on this fragment I would conclude that it will be first left to the merchants to decide what to jettison. When the ship faces such a danger perhaps seamen can profit of the chaos on board and attempt to steal some of the cargo. The Rhodian Sea-Law provides a double penalty for such robbers: they have to pay compensation to the damaged party twofold the value of the good, and they lose any gain that they would have been entitled to.

In conclusion, the rules on GA in The Rhodian Sea-Law are regulated in a more complicated manner than the Digest. When it comes to rules on the contribution related to GA, The Rhodian Sea-Law makes reference to maritime partnerships whereas the Digest mentions the contract of carriage between the master and the passengers. Furthermore, in The Rhodian Sea-Law there is extensive reference to the role and responsibility of the merchants, as well as that of the master and crew when estimating the contribution. The Rhodian Sea-Law is rather exhaustive in describing the different difficulties that can arise when travelling by sea and could have as a result the damage of the cargo and / or the damage of the ship or part of it and (in) trying to settle the relevant questions of GA and contribution and salvage.

General Average in the Basilica (ca. 900 AD)

As mentioned already in the first section, the legislation of Justinian consisted of four parts, the Codex, the Digest, the Institutes and the Novels. For ideological and practical reasons, Justinian issued most of this legislation in Latin. This was a problem at the time of Justinian since Greek was the dominant language within the Byzantine Empire. His subjects could not understand his legislation, which is why, shortly after its promulgation, texts appeared in Greek commenting on and summarizing parts of it. This transition from Latin to Greek in the sixth century traditionally marks the beginning of Byzantine law.Footnote 62 By the end of the ninth century numerous such Greek texts were in existence. Around 900 AD, many of these were collected into one massive legal compilation, the Basilica (Imperial Laws) consisting of sixty books, and from the tenth to the twelfth century scholia (marginal notes) were added.Footnote 63 The Basilica was the last important piece of legislation enacted in the Byzantine Empire. There is a peculiarity regarding maritime subjects in the Basilica, including those relating to GA. There are two sets of rules on the same subjects. How is this possible and why was it done?

As explained above, the Basilica consists of Justinianic legislation, but in Greek. Digest fragments were incorporated in the Basilica from Greek legal collections, mainly from a summary (summa) written by the “Anonymous Senior”, a sixth-century Byzantine jurist. The Digest fragments of GA referred to in section “General Average, the Rhodian Law of Jettison and the Roman Jurists: The Digest (6th c. AD)” were reproduced in the third title of the fifty-third book of the Basilica. The transmission of these Digest fragments was haphazard, and in the Groningen edition of the Basilica this particular book was reconstructed by the editors—as far as they could—on the basis of other works.Footnote 64 In 1978, after the edition of the fifty-third book of the Basilica in the so-called Groningen edition, the German scholar Dieter Simon discovered a new manuscript that contained The Rhodian Sea-Law.Footnote 65 In 2007, George Rodolakis edited the fifty-third book of the Basilica taking into account all preserved manuscripts.Footnote 66

What is interesting is that the Byzantine collection The Rhodian Sea-Law (which, as explained above, also includes GA rules)Footnote 67 was included as a whole in the eighth title of the fifty-third book of the Basilica.Footnote 68 This raises some questions. For example, since the Digest fragments about GA were transmitted in the Basilica, why did the compilers also include also the GA provisions of The Rhodian Sea-Law? Moreover, there is some discussion on whether The Rhodian Sea-Law was inserted in the text of the Basilica as an eighth title, or as a supplement.Footnote 69 In any case, the fact that the whole text of the Byzantine collection The Rhodian Sea-Law was included in the Basilica proves the importance of the latter. Moreover, Basilica fragment B. 53,1,1 states that maritime issues (or what happens at sea) are regulated according to The Rhodian Sea-Law so long as no other law contradicts it.Footnote 70 As Rodolakis rightly observes, the fact that this fragment was continuously repeated in subsequent collections proves that there was a common belief that The Rhodian Sea-Law had become the standard “maritime code”.Footnote 71

In the Basilica, we therefore find both GA rules transmitted from the Digest and the Average rules included in The Rhodian Sea-Law. As Ashburner noted, the GA rules in The Rhodian Sea-Law do not contradict those in the Digest, rather they supplement them. As mentioned above, The Rhodian Sea-Law regulated not only GA but also other dangers of travelling by sea. So the text of the Digest does not exclude the text of The Rhodian Sea-Law. This is especially clear in those rules dealing with salvage and rewards. In The Rhodian Sea-Law we find several rather detailed provisions which deal with rewards of salvaging wrecked goods. In contrast, in the Basilica part which transmits Digest fragments, there are no such provisions. This perhaps could be one reason why The Rhodian Sea-law was included as a whole in the Basilica just after the Digest fragments in Greek on maritime issues. In other words, The Rhodian Sea-Law supplemented the Digest fragments on jettison and shipwreck,Footnote 72 so it made sense to include both.

Two more possible reasons for the inclusion of The Rhodian Sea-Law in its entirety were its simplicity, and the compatibility of this with the working method familiar to the Basilica compilers. It was much easier to include the whole text instead of selecting those rules which supplemented the Digest fragments. Furthermore, the Basilica compilers were used to this way of working, of using different Greek texts that they had at their disposal to fill in the contents of the Basilica; this compilation was a kind of patchwork of legal texts.

Basilica rules on GA are repeated in later legal works deriving from or using as a source the Basilica; for example, the Synopsis Basilicorum maior, a tenth-century alphabetically arranged selection of the sixty books of the Basilica with references.Footnote 73 This work was broadly used in the following centuries because it was briefer than the Basilica and therefore easier to copy.Footnote 74 The Basilica were also the basic source of the Ponema Nomikon, a law book compiled in 1073/1074 by the high-court judge Michael AttaleiatesFootnote 75 after an order of the Byzantine emperor Michael VII Doukas.Footnote 76 In the thirty-second title of the Ponema Nomikon, which refers inter alia to masters and seamen, the Basilica rules on GA are repeated.Footnote 77 Another work deriving from the Basilica is the thirteenth-century Synopsis Basilicorum minor (“little alphabetical lawbook”), which was called “minor” to distinguish it from the “major” Synopsis mentioned earlier.Footnote 78 The compiler of the Synopsis Basilicorum minor used mainly the Ponema Nomikon and the Synopsis Basilicorum maior and arranged his material alphabetically. In the Synopsis Basilicorum minor, Basilica rules on GA are repeated under the Greek letter “N” which refers to maritime affairs because in Greek the words related to maritime affairs begin with the Greek letter “N”, for example: “Nαυτικά” = dealing with maritime/sea affairs, “Nαῦται” = sailors, “Nαύκληρος” = master, “Nαῦς” = ship, “Nαυάγιο” = shipwreck”.Footnote 79

GA rules deriving from the Basilica are also included in the fourteenth-century Hexabiblos, which has been one of the most influential Byzantine legal collections throughout the centuries. The Hexabiblos, which consists of six books, as its title implies (῞ἕξ = six, and βιβλίον = book), was a legal manual compiled by a Byzantine judge in Thessaloniki called Constantine Harmenopoulos.Footnote 80 Harmenopoulos based his compilation on many Byzantine legal works as his aim was to create a legal handbook, easy to use in legal practice. Hence, the Hexabiblos was not a law, yet in practice because of its simplicity, it was used as a law and became an influential text in the Eastern part of Europe. It was rendered many times into Modern Greek, reprinted several times in Greek regions and it was used in legal practice up to the promulgation of the first Greek civil code in 1946.Footnote 81 The Hexabiblos was also translated into Slavic languages and spread throughout the Balkan region. But it received much attention also in Western Europe, as shown by the numerous critical editions and translations.Footnote 82 The eleventh title of the second book of the Hexabiblos is entitled “About maritime issues” (Περὶ ναυτικῶν) and consists of twenty-two paragraphs, compiled with fragments taken mainly from the Synopsis Basilicorum minor.Footnote 83 According to the first paragraph of this title, all maritime affairs should be regulated by The Rhodian Sea-Law if there is no law that contradicts it.Footnote 84 What is interesting about this title of the Hexabiblos is that its compiler deals with GA issues deriving from the Digest (as transmitted in the Basilica and then incorporated and summarized in the works deriving from the Basilica), but he also deals with issues that are regulated only in The Rhodian Sea-Law, such as the reward that someone receives when he saves a good from a wreck. The rules hence remain the same but through the centuries they are summarized or simplified. Their core however remains the same.

Conclusion

Justinianic legislation remained the bedrock of Byzantine legislation. Rules of GA from Justinian’s legislation were transmitted and repeated in later Byzantine legal collections, including the Basilica and works deriving directly or indirectly from it such as the tenth-century Synopsis Basilicorum, the eleventh-century Ponema Nomikon and the fourteenth-century Hexabiblos. Most interesting in respect of GA and other maritime legal issues is the Byzantine collection known by the name of The Rhodian Sea-Law issued in the seventh or eighth century.

For Roman jurists, the decisive criterion for the payment of compensation and the sharing of the damage among all parties was common danger. In Justinian’s Digest the key to the proportional distribution of loss was the contract of carriage between the master and the passenger. In the Byzantine collection The Rhodian Sea-Law, GA rules were extended to more cases than just strict Average cases. All kinds of situations relating to dangers that a ship can face when travelling were dealt with, with distinctions being made between the different parties and their negligence being taken into consideration into estimating the payment. Moreover, in The Rhodian Sea-Law the proportional distribution of the contribution of the passengers is based on an agreement that must have been related to partnership agreements.

These differences between the GA treatment in the Digest and The Rhodian Sea-Law can perhaps be related to the origin of The Rhodian Sea-Law. My assumption is that the rules on GA in The Rhodian Sea-Law do not seem to derive from the Digest fragment 14.2 entitled “De lege Rhodia de iactu”.Footnote 85 The Digest fragment 14.2 was transmitted in book 53 of the Basilica, in which the whole of The Rhodian Sea-Law was also included. The fact that both rules on GA deriving from the Digest and The Rhodian Sea-Law were included in the Basilica can be explained by the fact that The Rhodian Sea-Law is more extensive and can therefore sometimes supplement the Digest. Moreover, including the whole of the text of The Rhodian Sea-Law instead of selecting specific parts of it, best suited the method of the compilers of the Basilica.

In the Digest, reference is made to a law of the Rhodians on jettison. The Rhodians are mentioned again in the title of the Byzantine collection The Rhodian Sea-Law. There is a lot of mystery surrounding Rhodes and the origins of the rules of GA. No ancient texts have survived, but the Roman jurists do refer to rules of jettison and General Average deriving from Rhodes. Be this as it may, these ancient rules have been extremely influential. It is interesting to add that medieval jurists had even discussed the possibility of adopting the rules of the lex Rhodia de iactu on land when property was sacrificed by individuals for the common good. In fact, in the early-seventeenth-century Dutch Republic, the court of Friesland actually applied the Digest rules of the lex Rhodia about GA to a land situation.Footnote 86

It is no exaggeration, therefore, to say that GA rules deriving from Rhodes have been one of the longest and influential set of rules in legal history. GA is a legal principle that still exists in almost every civil code. We have no remains of the Colossus of Rhodes, one of the seven ancient wonders of the world mentioned at the beginning of this essay, but we still have indirect “remains” of the ancient Rhodian rules on GA. Perhaps the real wonder of the world was not so much the Colossus of Rhodes but the rules of Average which have a millennia old history and continue to be influential to this day.