9. Transportation

The law of carriage, for both land- or sea-transport of people and goods, combines several areas of law, including the consensual contract of hire (locatio conductio, D.

Provisions in the edict call for a higher standard of liability on the part of shippers and inn- or stable-keepers for goods entrusted to their care in the course of their business. The operators (exercitores) of the ship, inn, or stable are responsible for wrongdoing (including theft) by their employees, whether slaves or free, because they chose their staff and had a chance to vet them. By analogy, innkeepers were also responsible for the wrongdoing of their guests, at least those who lived there on a permanent basis, as opposed to passing travellers and passengers on a ship.⁷⁴ The owner of the stolen property could sue either the thief under civil law or the operator under praetorian law.⁷⁵ If the operator had guaranteed the safekeeping of the goods, he could sue the thief himself.⁷⁶ The duty of safekeeping was conditioned by the operators’ free choice (arbitrium) in accepting the goods to be watched. In that sense, Ulpian considers the praetor’s edict ‘most useful’.⁷⁷ The drafting of the edict is most economical, and the terminology is elucidated by the jurists: ‘seaman’ (nauta) designates the operator of a ship (exercitor) or his agent (magister navis), not the crew. Along the same lines, the ‘inn-’ or ‘stable­keeper’ (caupo or stabularius) is the person in charge of the facilities, either as operator (exercitor) or as manager (institor);⁷⁸size=2 face=Arial> ‘ship’ is understood as including river-boats and rafts;⁷⁹ ‘goods’ (res, merces) mean not only merchandise but also personal belongings transported as luggage or clothing.

The remedy brought against the operator or manager was based on the initial contract of hire or deposit that bound him to the plaintiff. It called for different standards of liability: fault (culpa) in the former case, fraud (dolus) in the latter.⁸¹ Cases not covered by the edict - for instance, for lack of fault or fraud on the part of the operator or because no price was paid for the service - gave rise to an actio in factum.⁸² If the damage was caused by one of the sailors’ slaves who was not a sailor himself, the operator would nevertheless be liable to an actio utilis.⁸³ Conversely, operators could avail themselves of a defence (exceptio) in the event of an act of God (vis maior), such as shipwreck or attack by pirates or bandits.⁸⁴ Thus the law took into account the reality of commercial life by striking a balance between the interests of customers and those of business people.⁸⁵