‘Average’: A Polysemic Term

As has been noted, the sixth-century Lex Rhodia de Iactu and the seventh-century Byzantine Nomos Rhodion do not use any version of the term Average.6 Lefebvre D’Ovidio, ‘La contribuzione alle avarie’, pp. 130–40. The first use of the term occurs in a Genoese contract from 1200 with the meaning of ‘added expense for maritime taxes’.7 Andrea Addobbati, ‘Principles and developments of general average: statutory and contractual loss allowances from the Lex Rhodia to the early modern Mediterranean’, in Maria Fusaro, Andrea Addobbati, and Luisa Piccinno (eds), General Average and Risk Management in Medieval and Early Modern Maritime Business (Cham: Springer, 2023), p. 147, note 8. There are several similar Genoese examples from around the same time. The first reference in a normative text that we can date with certainty, meanwhile, is found in chapter 89 of the Venetian Statuta et Ordinamenta Super Navibus (1255) and reads ‘si alicui navi vel ligno evenerit quod Deus avertat, de arboribus antenis & timonibus dapnum, illud (non) sit in varea’ (‘if to any ship or vessel should happen that which God should prevent – damage to the masts, yards, or rudders – that should (not) go into Average’).8 Pino Musolino, ‘A relic of the past or still an important instrument? A brief review of General Average in the 21st Century’, Il Diritto Marittimo – Quaderni I – New Challenges in Maritime Law: de lege lata e de lege ferenda (2015), 257–88, at p. 262, and especially note 8. The presence of ‘non’ in the original is a matter of scholarly debate. Ultimately, it should also be noted that in European languages, all of which seem to have adopted some derivative form of the word avaria by the end of the sixteenth century, the word was used to mean both the ‘damage’ which had been sustained and the process of ‘contribution’ which made good that damage, a thing which renders arbitrating between the two theories virtually impossible.9 Casaregi, Discursus legales de commercio, vol. 1, p. 278. A fifteenth-century maxim from the Low Countries which we find cited in court records (‘werping is averij’ – jettison is [General] Average) attests to the word’s transfer beyond the Mediterranean basin.10 Dave De ruysscher, ‘Maxims, principles and legal change: maritime law in merchant and legal culture (Low Countries, 16th Century)’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung 137 (2021), 260–75, at p. 262. The first mention of the term in a written normative source outside the Mediterranean occurs in the 1538 Burgos Ordonnance (issued in Castille); the 1551 Ordonnance of Charles V for the Low Countries also makes mention of the term.11 Gijs Dreijer, The Power and Pains of Polysemy: Maritime Trade, Averages, and Institutional Development in the Low Countries (15th–16th Centuries) (Leiden: Brill, 2023), p. 67.

The etymological puzzle of Average is made even more difficult by the wide array of ‘Averages’ which exist and have existed. Like many of the ‘technical’ terms associated with medieval trade, ‘Average’ is polysemic, i.e. a term with many meanings. What is more, these different uses of the term are usually implicit in contemporary operational sources and helpful labels for the different variants come from a later juridical tradition which is not usually reflected in the operational documents. As well as the GA/PA distinction already discussed, a number of other variants existed in the late medieval and early modern periods. There was the ‘Small’ or ‘Petty’ Average: eventually it was determined that the Small Average refered to ordinary fees associated with the voyage that could be foreseen at the outset (pilotage, stallage fees, and so on), and the bearer of these costs was usually determined by the freight contract.12 James Allan Park, A System of the Law of Marine Insurances (London: His Majesty’s Law Printers for T. Whieldon, 1787), pp. 112–13. In earlier periods there was some doubt about whether Small Average – also sometimes known as ‘Common Average’ – referred to ordinary or extraordinary fees or both. Then there were other forms specific to more local settings. In English freight contracts the master might expect to be paid his ‘primage and average’, a kind of bonus given to him in reward for good service.13 Park, Marine Insurances, pp. 113–14. In the very unusual Spanish case, the avería de Indias was a duty levied on all the ships of the American fleets in order to fund protection for the convoy: that is, a contribution levied a priori to prevent misfortune, rather than a contribution levied after the fact.14 Miguel Luque Talaván, ‘La avería en el tráfico maritimo-mercantil indiano: notas para su estudio (siglos XVI–XVIII)’, Revista Complutense de Historia de América (1998), 113–45. Many other averías existed in the Spanish case.15 See Gijs Dreijer, ‘General average, compulsory contributions and Castilian normative practice in the Southern Low Countries (sixteenth century)’, in Maria Fusaro, Andrea Addobbati, and Luisa Piccinno (eds), General Average and Risk Management in Medieval and Early Modern Maritime Business (Cham: Springer, 2023), 193–214. The Biscayar and Castilian merchant nationes operating in the Low Countries in the sixteenth century, for example, demanded the payment of an ‘Average’ by its members to meet the expenses incurred by the organisation (a practice more commonly referred to as a massaria by Italian merchant nationes).16 Dreijer, The Power and Pains, p. 77. This is yet further evidence that the history of maritime Averages is more tangled – and interesting – than the lex mercatoria theory suggests.