Sources of GA Doctrine in Tuscany
During the period under consideration, the Tuscan authorities, unlike their counterparts in Amsterdam and Genoa, did not issue any formal laws concerning GA.
1 Go, ‘GA adjustments in Amsterdam’, p. 395; Degli statuti civili della Serenissima Repubblica di Genova (Genoa: Giuseppe Pavoni, 1613), pp. 139–41. The statutes and reforms concerning the court of the
Consoli make no mention of Average or jettison.
2 See ASF, Auditore poi Segretario delle Riformagioni, 116; Lorenzo Cantini, Legislazione Toscana: raccolta e illustrata dal dottore Lorenzo Cantini, 32 vols (Florence: Pietro Fantosini e Figlio, 1802), vol. 4, pp. 157–66, ‘Riformazione della Dogana di Pisa pubblicata il di 28 Aprile 1561, ab Incarnat.’ Nor are there references to Average or jettison in the
Statuti di sicurtà, enacted between 1523 and 1529 to govern Tuscan insurance practices, other than to note that jettison was one of the eventualities which was to be covered by the new standard-issue printed insurance contract.
3 Addobbati, Commercio, rischio, guerra, pp. 118–19. The statuti can be found reprinted in Jean-Marie Pardessus, Collection de lois maritimes antérieures au 18. siècle, 6 vols (Paris: L’Imprimerie Royale, 1837), vol. 4, pp. 598–605. There is one stipulation contained here which would seem to very distantly resemble GA, namely the practice whereby the five officials in charge of insurance could incur expenses for the recovery of items lost in a shipwreck or other disaster for the ‘universal benefit’, and subsequently divide the expenses between parties as they saw fit. There is, however, nothing amounting to a doctrine of maritime Averages. The medieval maritime republic of Pisa had in fact been a precocious maritime legislator, compiling the collection known as the
constitutum usus,
promulgated in 1160: yet though this does contain some brief references to jettison, these are never referenced in an early modern context.
4 Antonio Lefebvre D’Ovidio, ‘La contribuzione alle avarie dal diritto romano all’ordinanza del 1681’, Rivista del Diritto della Navigazione 1 (1935), 36–140, at pp. 88–90; Paola Vignoli, I costituti della legge e dell’uso di Pisa (secolo XII). Edizione critica integrale del testo tràdito dal ‘Codice Yale’ (ms. Beinecke Library 415) (Rome: Istituto storico italiano per il Medioevo, 2003). This is not to say that there existed no relevant written normative material which had at least the potential to influence the outcome of GA cases. First and foremost, there existed provisions regarding collective contribution in the
Digest of the sixth-century Byzantine emperor, Justinian, one of the foundational texts of the learned
ius commune tradition. This was the
Lex Rhodia de Iactu (the ‘Rhodian Law of Jettison’), the title given to section 14.2 of the collection. The other major normative authority for maritime cases in seventeenth-century Tuscany was the
Llibre del Consolat de Mar, a collection of maritime customs originally compiled in medieval Catalonia which held considerable authority in the Western Mediterranean, and the only collection of norms explicitly referenced directly in Tuscan GA cases in the archive.
5 Colon and García (eds), Llibre del Consolat de Mar. In some jurisdictions, such as the Republic of Genoa, some even considered this compilation to have been received as
lex and therefore to have the status of enacted law.
6 Giuseppe Lorenzo Maria Casaregi, Discursus legales de commercio, 2nd edn, 2 vols (Florence: Io. Cajetanum Tartinium, & Sanctem Franchium, 1719), vol. 1, p. 280. This chapter will analyse both of these sources in turn as part of a chronological survey of normative works.
These provisions were in turn an important reference point for the commentaries on GA produced by early modern learned jurists, most of whom were practising maritime lawyers themselves. Tuscany, again, did not itself produce any native jurist who would publish a work dedicated to maritime law until the late eighteenth century. In this respect, it seems that Richard Lassels, an English travel writer, was correct when he asserted in the 1660s that the primary goal of Livornese residents was ‘good bargains, not good books’.
7 Quoted in Stefano Villani, ‘Livorno – diversis gentibus una’, in Giovanni Tarantino and Paola Von Wyss-Giacosa (eds), Twelve Cities – One Sea: Early Modern Mediterranean Port Cities and their Inhabitants (Rome: Edizioni Scientifiche Italiane, 2023), 37–53, at p. 50. Ascanio Baldasseroni’s treatise on insurance (
Trattato delle assicurazioni maritime) published in 1786 was the first time that a Tuscan would write publically on the subject of Averages. Even in this treatise, however, Baldasseroni takes it for granted that his reader knows what Averages are and does not provide an explicit definition. Moreover, Baldasseroni’s implicit definition is not normative: it does not make any judgements on the circumstances that
should give rise to a GA. The term ‘Average’ (
avaria) usually appears in Baldasseroni’s treatise without any qualification, used to mean any kind of damage which falls short of a total loss (
sinistro). Recognising that each jurisdiction has its own rules as far as risk sharing is concerned, Baldasseroni then uses the term General Average (
avaria generale or, very occasionally,
avaria grossa) for any loss that, in the jurisdiction in question, is shared by all participants in the venture, and the term Particular Average (
avaria particolare) for any damage borne by the affected individual(s). Yet there were other Italian jurists who did consider the question of Average in more depth during the seventeenth century, whose texts would enjoy circulation throughout the peninsula as the eighteenth century progressed. It is clear, moreover, that at the outset of the eighteenth century, such attempts were still beset by uncertainty about how to resolve contradictions between existing authoritative texts (the
Digest and the
Llibre) and current practice. Before beginning a chronological survey of this normative inheritance, however, let us first briefly establish our bearings by reviewing the modern-day theory of Average and the risk-sharing taxonomy it envisages.