The Llibre del Consolat de Mar

The Llibre is the only juridical text that we find cited with regularity in the GA documentation found in the Consular archive. We find explicit reference to the Llibre (usually referred to as the capitoli di Barcellona or the ordini di Barcellona) in 2 of our 13 GA cases from 1600, 2 of the 8 cases from 1640, and 2 of the 19 ordinary cases from 1670.7 ASP, CM, AC, 319-20 (18 March 1669); ASP, CM, AC, 321-14 (23 July 1670); ASP, CM, AC, 196-37 (2 January 1639); ASP, CM, AC, 197-29 (26 April 1640); ASP, CM, AC, 25-22 (5 May 1600); ASP, CM, AC, 25-28 (8 April 1600). The Llibre was not straightforward to interpret, however. Casaregi’s edition offers a series of ‘explanations’ for the Llibre’s 294 chapters in recognition of the text’s difficulty: ‘the strange and contorted rewinding of words, disconnected and wandering … so that to get to the true meaning has been the subject of profound, and … almost ethical speculation’.8 Casaregi, Consolato del mare, p. iv.

The Llibre, however, does not outline anything amounting to systematic treatment of maritime Averages or a concept of ‘General Average’. Jettison is treated at several different points in the collection, and arguably in contradictory ways. Where other non-jettison examples of contribution are introduced, moreover, they are not explicitly linked to jettison or to a single overarching concept. Like the Byzantine Nomos Rhodion, the provisions that we might anachronistically categorise under the heading ‘GA’ are scattered throughout the compilation. The chapters that touch upon practices which we would recognise as dealing with issues of GA are 93–8 (jettison), 109 (jettison in the absence of merchants), 110 (extraordinary expenses), 184 (jettison when cargo is placed on board fraudulently), 192 (ships that beach themselves), 227 (ransom payments to pirates), 279 (delays caused by intervention of authorities), and 281 (jettison, once more).9 Chapter numbers are those given in Casaregi’s translation of the Llibre: Casaregi, Consolato del mare. Unlike the Lex Rhodia, there is no overarching principle that could conceivably unite these instances in which contribution is due. The word ‘Averages’, moreover (‘averies’ in the original Catalan), is only used to refer to certain extraordinary expenses which are borne only by the cargo owners.10 Colon and García, Llibre del Consolat de Mar, vol. 1, pp. 65, 87, 116, 128–9, 136, 163. Vol. 2, pp. 87, 89, 206.

Like the Nomos Rhodion, the Llibre seems to place considerable store by the consultation with merchants and/or crew to be carried out before a sacrifice. There has been some scholarly disgreement, however, about why the Llibre insists on consultation and whether, indeed, all consultations fulfil the same role. This debate, in turn, has implications for our understanding of risk-sharing practices more broadly in this period. The consultation is mentioned several times in the Llibre, most strikingly in Chapter 97 (jettison), in Chapter 281 (jettison again), and in Chapter 192 (when the ship is beached). Chapter 97 states that before making a jettison the master must gather the merchants, the boatswain, and all those who are in the ship together and make the following declaration:

Chapter 192 (‘Of a ship that, for act of God or other such case, has to make for the land’) would at first sight seem to be an instance of exactly the same phenomenon. Here, too, the master makes a speech to the assembled company of the ship in anticipation of an imminent threat:

The reknowned German jurist and legal historian Levin Goldschmidt argued that the consultations in both 93–8 and 192 were the same and had a contractual function, uniting participants in a ‘company against danger’.16 Levin Goldschmidt, ‘Lex Rhodia und Agermanament der Shiffsrat: Studie zur Geschichte und Dogmatik des Europäischen Seerechts’, Zeitschrift für das gesammte Handelsrecht 35 (1888), 37–90, 321–95. Antonio Lefebvre D’Ovidio and Andrea Addobbati, on the other hand, have convincingly argued that the two consulations are actually quite different, seeing the beaching example as contractual, but the jettison consultation as no more than formal proof of both the opportunity and necessity of performing the jettison act.17 Lefebvre D’Ovidio, ‘La contribuzione alle avarie’, p. 114; Andrea Addobbati, ‘Principles and developments’, pp. 145–66. The wording of the two stipulations certainly seems to support the idea that the two acts are distinct. Chapter 97 is about choosing whether or not to take a certain action: ‘if you merchants desire the jettison, with the will of God we would be able to save persons and a great part of our property; and if we do not jettison, we are faced with losing ourselves and all our property’.18 Casaregi, Consolato del mare, p. 29. In the consultation of 192, the master presents no such choice: ‘we cannot hide the fact that we can do no other than beach the ship’.19 Casaregi, Consolato del mare, p. 56. In this second example, there is no discussion over the action itself and no mention of the merchants ‘consenting’ to the beaching. Instead, the merchants’ choice is whether or not to accept the master’s proposal for what happens after the beaching. In Chapter 192, unlike Chapter 97, we find a whole series of conditions and minutiae regarding the way the two interests should contribute after the inevitable disaster: if the parties cannot agree on correct valuations then two ‘good men’ should be elected to perform the valuations and their decision should be respected; if the ship should be wrecked then the value of any equipment salvaged should be deducted from the value of the ship, but that value should be the price of the ship before the accident; however, if the ship survives, then it should contribute its full value, but the value should be of the ship in its current condition; and so on.20 Ibid. Such stipulations not only give the act a more contractual flavour but clearly distinguish this act from the jettison, where the ship is valued at half its value for ‘regular jettison’ and two-thirds for ‘nearly shipwreck’.

Addobbati’s reading of Chapter 192 also points to an important semantic link between this and Chapter 229, which discusses the payment of freight on cargo which has been stolen by enemies. Chapter 229 states that the merchants can agree that the ship will go over the cargo (‘nau vaia sobre los havers’ in the original Catalan) but the shipmaster cannot ‘brother’ the ship with the cargo (‘lo senyor de la nau non agermanara la nau ab laver’). The use of this verb agermanar, probably from Catalan germà (hermano in Castilian), is the key to the link between Chapters 192 and 229.21 Casaregi, Consolato del mare, pp. 73–4. Chapter 229 makes reference to the possibility of an agreement between the master and merchants before the voyage begins whereby the parties have agreed to share the costs of unforeseen accidents equally: a ‘germinamento’.22 Casaregi, Consolato del mare, p. 73. In short, Chapter 229 envisages the possibility of a mutual insurance agreement between the parties before the start of the voyage. It suggests, moreover, that this agreement might be made mid-voyage if an enemy is sighted in the distance. The master’s proposal in Chapter 192 is therefore also a mutual insurance pact: an ad hoc arrangement to share damages in the face of certain but as yet undetermined harm which could conceivably pertain to both ship and cargo interests. This is not an ‘Average’ event akin to jettison.

Finally, Chapter 109, dealing with jettison in which the merchants are not present, makes it clear that the jettison consultation is not strictly necessary, undermining the idea that it has a contractual function. Chapter 109 states that if a master makes a jettison in order to defend himself or because of an Act of God (fortuna del mare), it will be valid ‘as if all the merchants were present’ (thus somewhat undermining the discussion in Chapter 281 about ‘regular jettison’ and ‘nearly shipwreck’).23 Casaregi, Consolato del mare, p. 32. In the absence of the merchants, the master is to consult with those who are present on board and the merchants must subsequently accept whatever ‘pacts’ they have made and contribute to the damages. The scrivano (ship’s scribe) is to write down these pacts; if he is not present, the absent merchants will have to be content with the testimony of the crew. The same even applies if the master decides to beach the ship. Though the Llibre seems uneasy with the idea that the merchants are not on the ship – the passage imagines that the merchants are not on the ship because some misfortune has forced the master to depart without them – it is clear that their assent is not necessary for the jettison to go ahead.

Addobbati is thus surely correct to conclude that a strict interpretation of the Llibre reveals the existence of an institution of mutual insurance which he distinguishes from the rules of ‘General Average’.24 Addobbati, ‘Principles and developments’, p. 163. As we will see, this distinction caused some confusion for jurists for whom the prevalence of such mutual insurance agreements was no longer operational reality. It should be noted, however, that adjudicating between these positions is not straightfoward, since arguments built on the idea that the Llibre is an internally coherent collection of rules inevitably rest on a shaky premise, as the differences between the different chapters on jettison suggest. In particular, there is more than a hint of contradiction between Chapter 109, which declares that a jettison made in the absence of the merchants is valid ‘as if they had been present’, and Chapter 281, which declares that such a jettison is in fact ‘nearly shipwreck’ and follows different procedures.

It is, moreover, doubtful that we can yet speak of a doctrine of ‘General Average’ in the Llibre. Chapter 192 is not the only chapter in which the ‘common benefit, common contribution’ maxim is not adopted. Chapter 110 (‘the payment of extraordinary expenses’), the only contribution-like situation in which the word ‘Average’ is used, outlines a situation in which we might expect to find contribution from all parties, but in fact the ship interests do not contribute at all. The chapter mentions two concrete situations which are very similar: when a ship has entered a port of refuge to ‘escape from an act of God’ or when a ship has remained blocked in port by the weather or enemies. The chapter states the ensuing expenses (‘averies’) should be paid proportionally with only the contribution of the saved merchandise.25 Casaregi, Consolato del Mare, p. 33. Since the ship clearly benefitted, this would seem to directly contradict that central principle of GA that ‘the sacrifice for the common good must be made good by the common contribution’. In this conception, jettison (‘git’) and ‘aueries’ would appear to be two separate things, with the latter resembling what later Dutch jurists would refer to as ‘small Average’.26 p. 63. The word aueries is also used to refer to all those extraordinary expenses which the merchants have consented to pay by prior agreement, thus echoing the meaning of ‘additional payment for maritime taxes’ found in thirteenth-century Genoese contracts.

In fact, the only scenario in the Llibre where there is a situation comparable to that of jettison (and, again, jettison is not explicitly referenced) is the payment of ransom to an armed ship in Chapter 227. In this situation, the Consolato establishes that the ransom cost is to be borne by all interested parties, with the ship counting for half. The ransom has to be agreed by everyone on board, but if there are no merchants on the ship then a consultation with the crew is sufficient and the merchants will be obliged to pay anyway.27 Casaregi, Consolato del Mare, p. 72. The word ‘Average’ is not used in connection with this situation.

The Llibre thus provides us with a snapshot of medieval risk-sharing practices in the Western Mediterranean during a period of change. The resulting image is somewhat blurred: perhaps because practices were changing as the work was being compiled, perhaps because quite different practices were in use contemporaneously. We can, however, discern a more heterogenous situation than that which would prevail from the early modern period onwards. A wide range of risk-sharing practices are outlined. There are some circumstances in which ship and cargo contribute (i.e. ship-owners and merchants), and others in which only the cargo contributes (i.e. just merchants). There are different rates of contribution for the ship depending on whether the merchants give their assent to the jettison or not (though their assent or otherwise is elsewhere declared to be irrelevant in a contradictory passage). Rules about compulsory contribution (we might anachronistically say ‘GA’) coexist alongside the possibility of contractual agreements between merchants and masters to share damages, even in situations with no sacrifice of property. There are no expressions of legal principle but rather a series of concrete examples that may or may not illustrate a rule with more general applicability.

The most important change in this heterogenous situation appears to be operational: its compilers were coming to terms with a maritime economy in which merchants and their representatives (supercargoes) were ever less likely to be accompanying their goods. This created some unease on a practical level because merchants had to repose more trust in the master, but also on a juridical level, because it was now necessary to explain how an obligation might be created upon someone unable to assent to an act supposedly made in their interests. Such questions could be avoided in a context in which merchants were physically present but now became increasingly difficult to ignore. An absence of merchants also left little opportunity for ad hoc mutual insurance agreements such as the germinamenti, and these soon fell out of use, leaving an interpretative puzzle for jurists no longer familiar which such practices. In short, a new, practical maritime context was already altering risk-sharing practices before the beginning of the early modern period, independent of the advent of new risk institutions like premium insurance and the increased interest of learned jurists in maritime questions.