Developments in the Low Countries

The tendency observed across medieval collections from the Low Countries is a gradual increase in the number of situations in which collective cost sharing was explicitly authorised. Laws stipulating contribution after jettison and mast cutting had already been incorporated into the municipal law of Bruges in the fourteenth century, with the fifteenth-century Ordonnantie of Amsterdam adding further admissible expenses such as using lighters when the ship could not make it to port and extraordinary pilotage, as well as payment for a pilgrimage promised to thank God for aid during a storm.3 Dreijer, The Power and Pains, p. 99. The Ordonnantie also allowed the shipmaster to jettison when merchants were not present (unlike in the Mediterranean, shipmasters could choose whether to contribute to the GA with their freight or with the value of the ship). Dave De ruysscher thinks it likely that instances of collective contribution were in practice restricted to these specific instances, and that practitioners did not accept other instances by analogy with these maxims.4 De ruysscher, ‘Maxims, principles and legal change’, p. 265.

A particularly important step was then taken with the issue of a series of princely legislation on this and other topics by the Habsburg rulers of the Low Countries in the 1550s, occasioned by disputes over the costs of protecting trade from Spain to the Low Countries and particularly by the State’s desire to curb the controversial use of premium insurance. For the first time these collections actually sought to define GA rather than simply providing examples. According to the Ordonnance of 1551, all damage suffered for the common benefit of the ship had to be shared over the ship and cargo as per ‘the old customs of the sea’.5 Dreijer, The Power and Pains, p. 107. This was to also include costs associated with seamen who had died or been wounded when fighting off attackers. The Ordonnance also defined Small Average (gemeyne avarye): these were operational costs such as ordinary pilotage, port duties, and customs costs. Though the shipmaster advanced these costs, Small Average was usually paid by merchants in proportion to the value of their cargo: the development of Small Average probably points to a change in the role most commonly carried out by the master, as he moved from participant in the venture to agent of the merchants.6 Dreijer, The Power and Pains, pp. 80, 107; De ruysscher, ‘Maxims, principles and legal change’, p. 274. Dreijer argues that by keeping such costs separate from freight, the cost of the voyage could remain largely fixed whilst the master was allowed some flexibility if he had to make a stop, though it should be pointed out in this respect that making unforeseen stops would incur costs more obviously understood as extraordinary.7 Dreijer, The Power and Pains, p. 80. This provision seems somewhat similar to Chapter 110 of the Llibre del Consolat de Mar, which states that only the merchants are liable for the costs of emergency stops rather than the collective: the Llibre’s version of Small Average ante literram. The 1553 issue of the Ordonnance then toughened penalties for masters who had acted fraudulently, probably so as to attempt to offset the new discretionary powers that were awarded to him to make GA sacrifices as he saw fit: as in the Western Mediterranean Llibre, Northern European legislation was having to come to terms with the absence of merchants and their supercargoes. The costs of running the ship aground were also explicitly included in GA, a novelty in Northern Europe, perhaps inspired by Southern European practice.8 Dreijer, The Power and Pains, p. 112. Another major legislative development occurred in 1570 when Phillip II issued the Castilian Hordenanzas as princely legislation, thus affirming the existing practice of making insurers liable for both PA and GA payments.9 Dreijer, The Power and Pains, p. 117. The 1608 Costuymen of Antwerp was the first municipal collection to contain a typology of Average, distinguishing GA (Averij-grosse), PA (simple Averij), and Small Average (here, rather confusingly, referred to as Averij-commune).10 Dreijer, The Power and Pains, p. 118. De ruysscher, ‘Maxims, principles and legal change’, p. 263. Italian jurisprudence (though not practice, as we will see) would arrive at such a neat typology somewhat later.

The attempt in the state legislation to explicitly distinguish between different types of GA was supported by the work of a learned jurist, Quintin Weytsen, who wrote a treatise on GA entitled Een Tractaet van Avarien. First printed in 1619, it was probably originally written in 1564 or 1565 as a kind of scientific companion to the 1563 princely legislation.11 Dreijer, The Power and Pains, p. 127. Weytsen’s approach was the new, legal-humanistic method of emandatio. Rather than relying on the explanatory commentaries of earlier jurists, he drew upon both the authorative works of the Corpus Iuris Civilis but also merchant practice to find the ‘true meaning’ or ‘pure’ content of existing rules: this was in contrast to those scholars who simply aimed to produce hermetic, textual commentaries.12 De ruysscher, ‘Maxims, principles and legal change’, p. 267. The effect of this approach was to bend and shape those rules towards consistency and was thus an important spur to legal development.13 De ruysscher, ‘Maxims, principles and legal change’, pp. 261–2. Weytsen was the first to distinguish between GA and Small Average, providing examples.14 Dreijer, The Power and Pains, p. 127. He was also the first to offer a clear definition of GA: