« AnteriorContinuar »
EXPOSITION OF THE MOTIVES
BOOK II. TITLES I. TO VIII. INCLUSIVE,
Presented by Messrs. Bégouen, Maret, and Corvetto, Counsellors
SITTING OF THE EIGHTH SEPTEMBER, 1807.
GENTLEMEN, His majesty the emperor and king has ordered that the second book of the commercial code be presented to you.
This book comprehends all maritime transactions; and under this head, it succeeds to the ordinance of 1681.
To announce to you, gentlemen, that we have detached from that fine ordinance every thing which belongs to administration, to police, or to public law, and which has not been deemed proper to constitute a part of the code of maritime commerce; that we have, for the rest, preserved all the principles which it has, in some measure, consecrated, in what relates to maritime contracts; that we have permitted ourselves to make but few changes, and these such as appeared to us to be warranted even by those who have had experience in commerce and navigation, during the last century, or by the most evident justice it seems to us, would be to tell you, that the love of order, the respect due to the wisdom of our ancestors, and a just circumspection have directed our labours; and that, if it is with confidence that we come to submit this project of law to your examination, that confidence is inspired by our admiration even of the ordinance on which we build.
Heirs, if we may thus express ourselves, of such a depository of wisdom and knowledge, we have thought that to arrange its provisions with method, in a plain and regular plan; to free them from every species of doubt and obscurity ; to place them still more, if possible, within the reach of every man of probity and correct mind, would be to render a signal service to navigation and commerce, to give to legislation, which regulates their interests, a new guaranty by its very simplicity, and thus accomplish the views, alike extended and profound, of the emperor.
How many ages had elapsed before such rich materials were amassed, before we had arrived at such happy results ! and what an imposing spectacle is presented by the progressive course of maritime legislation !
Courage, want, poverty, and even the thirst of pillage, gave birth to navigation among the ancients; but this source has been purified: useful communications and a regular commerce, founded upon reciprocal good faith, have succeeded to plunder.
The Phoenicians a ppeared among the first on this great stage, distinguished themselves above all other nations by the boldness of their cruises at sea, by the extent of their enterprises, by the greatness and power of the colonies which they founded.
The vessels of Tyre covered the Mediterranean, in times when the ocean not yet existed for commerce; her maritime laws have passed to Rhodes, and to Carthage.
Under the name of Rhodian laws, they were adopted by the Romans, who admired their wisdom.
They governed, at that period, the commercial world; but the destruction of the Roman empire, by the invasion of the Goths, caused them, as it were, to disappear; they fell into the most profouod oblivion.
It was only towards the twelfth century that the dawn of maritime legislation broke upon Europe.
Then appeared the Consolato del Mare, which the commercial pations eagerly adopted.
At a later period, Wisbuy, Brussels, Lubeck, Amsterdam, Antwerp, were proud of their maritime regulations. Guienne lays claim to the Judgments of Oleron; and Rouen cites with pride the Guidon of the Sea.
It is from these rich and fruitful sources, that the framers of the ordinance of 1681 drew the principles of equity and wisdom which characterize their works; and it is undoubtedly a great misfortune that the reports and discussions in relation to that noble law have not been preserved: we should have drawn from them much valuable and luminous information.
They would have added to the succours which we have found, as well in the observations of the able jurists who have commented on the ordinance, as in the precious labours of the first commissioners charged by the government, a few years ago, to prepare the commercial code, and who have acquitted themselves with so much honour aud credit.
Be that as it may, it is a sufficient recommendation of a great part of the project which is now presented to you, to inform you that we have almost constantly followed the ordinance of 1681.
The eight first titles of this project which we now bring you, will afford you evidence of this truth.
The new articles which regulate the rights and the duties of owners of ships, the privileges of creditors, the obligations and the functions of the captain, the condition of the crew, are, with few exceptions, in harmony with the ancient provisions.
Nevertheless, some additions, and even some changes, have ap peared to us necessary.
For example, we have thought that it would be useful to establish more completely the order of privileged debts, and it has been deemed indispensable to take precautions which the legislature of 1681 had neglected, in order to verify the existence and the legality of privileged debts; which was the more essential as these debts may sometimes absorb the common pledge of the ordinary creditors : such is the object of the nine paragraphs of article 192.
The ordinance had determined that the owners of a ship, a share in which should be attached for a debt, due from one of them, at the moment of her being ready to sail, could not send her to sea without giving security for the estimated amount of the share so
attached. They were indeed authorized to have insurance effect, ed on this portion, and to borrow on bottomry to pay the cost of the insurance; but the reimbursement of the sum borrowed was recoverable only out of the profits of the returns.
It has appeared evident, that the burden of a security for the portion of the ship attached, imposed upon the co-proprietors, was as oppressive as it was unjust.
The creditor who had made the attachment could not claim a greater right than his debtor; the latter could have against his co-proprietors only an unliquidated claim; he never could have demanded security for his proportion; he never could have withdrawn, as long as the association continued, this proportion from the chances of navigation, except by the means of an insurance which would have been entirely separate from his associates.
How, then, could the creditor, who takes the place of the part owner, be admitted to cast upon the co-proprietors these same chances, under the simple authority of insuring his claim for their account?
For it is clear, that according to the text and the meaning of the ordinance, this insurance was to be made on account of all the owners, since they were obliged to give security to the amount of the share attached.
It was also evident that the reimbursement of the cost of the insurance, assigned out of the profit of the returns, in favour of the co-proprietors, might very often be illusory, inasmuch as it often happens that there are neither returns nor profit.
Justice appeared then to require that the co-propriétors should bave a right to send the ship to sea, a share in which might be under attachment at the moment of her being ready to sail, at the charge of rendering an account of this same share to the attaching creditor, and of giving security to that effect.
But in discussing this subject, we have arrived at results of greater importance. • We have deemed it necessary to examine whether it be for the general interest of navigation and for the public good, to permit the seizure of a ship at the moment of sailing; whether the interest of a single person, who till then had neglected to advance his pretensions or his rights, ought to clog the speculations of the ship pers, compromit their fortune, frustrate the hopes of his co-proprietors, cause perhaps the most judicious enterprise to fail-and we have arrived at a solution to the contrary. We have thought that a ship, ready to sail, ought not to be liable to seizure : the legislation of some commercial nations came also in aid of this opinjon, and of the provision we have established in consequence of it by article 215.
The activity of navigation, the interests of third persons, the encouragement of commerce, have appeared to us to justify the temporary and slight sacrifice of the rights, sometimes equivocal, of a negligent creditor.
A single exception has been deemed just, and it has been pronounced. This exception relates to the debts contracted for the voyage. It may be supposed that, without these debts, the vessel would not have been got ready to sail. They ought, then, to be paid. And even in this case, security may still, according to the provision in the law, reconcile every interest.
The duties of the captain, and his functions, have also attracted all the attention and vigilance of the law: How important are these functions, how sacred these duties !
The captain is the mandatary of the owners of the ship; he is answerable, saving events from superior force, to the shippers for their goods; he is anstrerable to the state for his crew; at sea, on the voyage, he is almost exclusively charged with all these interests; his functions become respectable in all these relations, and his responsibility is on that account the greater. It is under this character, gentlemen, that it has been determined, that be ought to answer for even slight faults in the exercise of his office. And such in effect is the provision of article 221. which besides accords, under a favourable modification, with the general theory which regulates the obligations of every hired mandatary.
In treating of the seamen, you will surely remark, gentlemen, with interest, that by article 63. their condition is meliorated, in the case of being hired by the month, for a determined voyage, the voyage already commenced being broken up by the act of the owners or master.