Italian Jurists on Averages

For a while, Italian jurists did little more than briefly repeat provisions contained in the Digest. Though he is occasionally cited in the GA cases in the Tuscan archive, the Neapolitan jurist Francesco Rocco, for example, contented himself with a few scattered references to the Lex Rhodia de Iactu in a section on ‘ships and freights’ in his Responsorum legalium cum decisionibus (1655).2 Francesco Rocco, Responsorum legalium cum decisionibus, 2 vols (Naples: Luca Antonio Fusci, 1655), vol. 2, pp. 363–85. Most of the little he did write on the subject, moreover, was gleaned from a reading of the Spanish jurist Juan de Hevia Bolaño.3 See Juan de Hevia Bolaño, Labyrinthus commercii terrestris et navalis (Florence: Petrus Antonius Brigonci, 1702) (originally published in Spanish, 1617). Only at one point does he report an incidence of contribution not explicitly mentioned in the Lex Rhodia, when, citing Bolaño and the Llibre del Consolat, he notes that contribution is due from the master of the ship and the merchandise when a ship is beached to avoid a storm, thus providing us with the first explicit conflation of the contractual germinamento (no longer a part of contemporary practice) with a GA-style contribution as described in the Lex Rhodia.4 Rocco, Responsorum, vol. 2, p. 376. Nowhere does Rocco make reference to the terminology of Average which was already current in Italian practice.

By the end of the century, however, jurists like Carlo Targa and Giuseppe Casaregi were making an effort to flesh out a doctrine of ‘Average’. Both men were influential in Italy and beyond, and though Targa passed his entire career in Genoa, Casaregi would have a direct influence on Tuscan judicial practice when he was appointed to the Florentine ruota in 1717 – the supreme court of civil appeal.5 Piergiovanni, ‘Casaregi, Giuseppe Lorenzo Maria’. Yet the typologies of Average which emerge from the work of Carlo Targa and Giuseppe Casaregi are substantially and surprisingly different, despite the fact that both of them were Genoese maritime lawyers whose careers substantially overlapped. Neither of their treatments of GA reflects practices attested by the Tuscan archives, as we will see.

Carlo Targa (1615–1700) was born in Genoa, the son of a Genoese merchant and a noblewoman.6 For a biography, see Maura Fortunati, ‘Targa, Carlo’, Dizionario Biografico degli Italiani (Rome: Instituto dell’Enciclopedia Italiana, 2019), vol. 95 <www.treccani.it/enciclopedia/carlo-targa_%28Dizionario-Biografico%29/> [accessed 18 December 2023]. After studying in Pavia and Bologna he became a doctor in utroque iure (i.e., in both civil and canon law). His posthumous fame rested principally upon the publication, towards the end of his life, of Ponderationi sopra la contrattazione marittima (‘Reflections upon maritime contracting’), published in 1692 and written in Italian.7 Carlo Targa, Ponderationi sopra la contrattazione marittima (Genoa: Lampadi, 1750). His perspective cannot be described as a view from an ivory tower. Targa’s extraordinarily long legal career in Genoa was passed in various tribunals and state bodies of the republic but above all as a lawyer dealing with maritime cases in the magistracy of the Conservatori del Mare. He was thus intimately acquainted with maritime practice and his work has been lauded as a ‘faithful mirror … of the maritime custom of these times’ which ‘described summarily but comprehensively … the maritime institutions of the age’.8 Enrico Bensa, Il diritto marittimo e le sue fonti (Genoa: Cenni, 1889), p. 35; Fortunati, ‘Targa’. Yet in actual fact Targa’s vocation as a practising maritime lawyer alone is no guarantee of his account’s descriptive value. As his treatments of Averages show, Targa’s intentions must have been in part prescriptive, an attempt to gently redirect practice into line, above all with the provisions of the Lex Rhodia and Llibre del Consolat. The systemising intent was ultimately not so different to Weytsen’s synthesis of textual sources and maritime customs, though with rather less success as far as Averages are concerned.

One area in which Targa does lift the veil of legal theory to reveal a different operational reality concerns the consultation prior to a jettison, which he conflates with the germinamento of the Llibre del Consolat. As mentioned, the word germinamento, an Italianisation of the original Catalan agermanar, most likely derives from the Catalan germà meaning ‘sibling’, and thus it might be best understood as an act of ‘twinning’. Targa provides a more fantastical derivation from the French germiner, itself purportedly springing from the idea of unum germen, a ‘single shoot’, and thus indicating that the venture has become ‘a union, and a single body as far as those interested are concerned’.9 Targa, Ponderationi, p. 175. He goes on to write:

Less straightforward to interpret is the typology of Averages set out in the Ponderationi. Targa’s treatment of the subject is in fact highly idiomatic and seems to find no equivalent in any other work. First of all, we should note that Targa treats jettison, germinamento, ‘Averages’, and contribution under separate headings rather than as different facets of the same phenomenon.13 Targa, Ponderationi, Chapter 60 ‘Dell’Avarie, e loro diversità’, pp. 142–4; Chapter 76 ‘Del germinamento’, pp. 175–7; Chapter 77 ‘Della contribuzione’, pp. 177–81; Chapters 58–9, ‘Del gettito in mare’, pp. 138–41. In the section on Averages, he then distinguishes between ordinary Average (avaria ordinaria), extraordinary Average (avaria straordinaria), and ‘mixed’ Average (avaria mista), which is a blend of the two.14 Targa, Ponderationi, p. 142. He goes on to explain that ordinary Average is the bonus which is paid customarily to the master for his custody of goods which come ‘from beyond the straits [of Gibraltar] for here’: since this, ‘like all customary payments’ is an ‘ordinary’ damage, they are known as ‘ordinary Average’.15 Targa, Ponderationi, p. 143. This type would appear to be similar to the ‘primage and Average’, a customary payment made to the master for good service which was customarily awarded in England. In its ‘ordinariness’ it also somewhat resembles what Weytsen called Small Average.16 Park, Marine Insurances, pp. 112–13. What Targa calls ‘extraordinary’ Average, on the other hand, is that which we would understand as PA: when wind and weather damage some part of the ship or cargo and the cost lies where it falls.17 Targa, Ponderationi, p. 142.

One might therefore expect Targa’s ‘mixed Average’ to be directly equivalent to GA, but this is not the case. This is not ‘mixed’ in the Aristotelian sense of a sacrifice which is both forced and voluntary; it is rather an ‘extraordinary, voluntary’ Average (avaria straordinaria voluntaria).18 Targa, Ponderationi, p. 143; for Aristotle on the subject of jettison as a ‘mixed’ act that is both voluntary and involuntary, see Addobbati, ‘Principles and developments’, p. 153. This mixed Average takes place, according to Targa, when the ship has ‘stumbled into’ an unfortunate situation out of the participants’ control (he uses the unusual phrase ‘quando s’inciampa in un fortunio’), and some extraordinary collective expense that depends on a voluntary negotiation (spesa che dipende da negotiato voluntario) must be made in order to extract the ship from this situation. Such expenses include when a ship encounters an armed vessel (presumably a ransom payment in order to escape unscathed), when a ship shelters under the cannons of a fort for safety (presumably some payment for this service would be due), or when a ship has been abandoned for fear of corsairs and must later be recovered.

Into this ‘mixed’ category fall several further sub-categories. Targa first outlines an ‘Average of the Indies’ (avaria dell’indie), which he says is used in both the ports of Brazil and the Levant. He describes a situation in which two or three ships are loading in a far away port in competition with one another. ‘In order not to damage one another’, the masters collectively agree to set the freight rate between themselves, splitting the cargo between them and effectively creating a temporary cartel.19 Targa, Ponderationi, p. 143; see pp. 93–4. The freight is then split between the masters and their crews, with expenses first deducted. Targa next describes an Average ‘of the English and Dutch usage’, which consists of the gift of a reale to the master for every valuable parcel he brings, three reali per tonne for large parcels, and one and a half for every tonne of bulk cargo.20 Targa, Ponderationi, pp. 143–4. This seems to be another iteration of the ‘primage and Average’, or something very similar to it, notwithstanding the fact that Targa has already outlined a very similar situation under the rubric of ‘ordinary Average’.

Finally, Targa outlines something which we might term GA, though it is not GA as we know it. The phrase used here is avaria grossa (gross Average), though it is telling that Targa on this occasion somewhat distances himself from the term, as if he does not quite want to take ownership of it: ‘another Average can be found which they call avaria grossa’.21 Targa, Ponderationi, p. 144. Later on in the paragraph, he refers to it indiscriminately as avaria commune (common Average).22 Ibid. This Average involves common contribution from ship, freight, and merchandise. This is used for a scenario in which a ‘vessel […] remains deliberately in a port or under a fortress for some time to avoid a meeting with corsairs or enemies to save itself and the cargo’.23 Ibid. As this would seem to be exactly the type of scenario that Targa has just placed under the heading of mixed Average, it seems that Targa considers GA to be an improperly named subset of mixed Average. There is no mention of jettison. Targa does, however, exclude unintentional damages from this GA when ‘the delay was not voluntary but was forced’.24 Ibid. (In practice, as will be shown, such damages were often made good through the mechanism of GA through a careful wording of claims.)

In his section on ‘contribution’, meanwhile, Targa does not outline a general principle, nor does he connect contribution at any point to the word ‘Average’. He instead provides a list of seven situations in which collective contribution is due: when there has been a germinamento, when there has been a jettison even without germinamento, when there has been a ransom to enemies and corsairs, when cargo has been unloaded to lighten the ship and is lost, when expenses have been incurred in combat with enemies so long as there has been germinamento (with damages sustained in combat to be excluded), when the small boat, anchor, rope, or some other appurtenance has been abandoned to escape danger, and, finally, when some of the merchandise has been lost and the rest has become mixed up and it is not clear to whom the remaining merchandise belongs.25 Targa, Ponderationi, pp. 177–8. In short, only instances of contribution which are explicitly supported either by the Lex or the Llibre are admitted. The only two exceptions to this are the final example of the lost merchandise and the combat expenses. Yet these latter expenses at least are justified because there has been explicit agreement between parties in the form of germinamento. We might note that there is some contradiction between the chapter of ‘contribution’ and the chapter on ‘Averages’, since Targa’s chapter on Averages states that avaria grossa requires contribution, but it gets no mention here.

This was not a faithful mirror of practice. The Tuscan operational documents, as we will see in the following chapter, show that practice had long before moved to a binary intentional/unintentional, GA/PA distinction between damages that were to be made good collectively, and those that lay where they fell. In the documentation there is no hint of ordinary, extraordinary, and mixed Averages, Averages of the Indies, and Averages of English and Dutch usage (nor have these terms been found in Genoese operational documents, for that matter).26 Antonio Iodice, ‘Maritime average and seaborne trade in early modern Genoa, 1590–1700’ (unpublished PhD thesis, University of Exeter/University of Genoa, 2021), p. 185. The most frequent ‘Average’ in operational terms, moreover, is jettison, the supposedly archetypal instance that Targa in fact excludes.

Targa’s juridical treatment was well aware of practice but somewhat awkwardly trying to make this fit with the two most important normative authorities, the Lex Rhodia and the Llibre del Consolat. These spoke of contribution, mostly in reference to jettison, but did not use the language of Average. Practice, meanwhile, spoke of Averages, but sometimes did so ‘improperly’ by trespassing on territory already regulated by the texts. Averages, with improper elements excluded, was then elaborated in an idiosyncratic way. The result was an elaboration and systematisation which, because it did not historicise the authoritative texts, could not synthesise text and practice successfully in the way that Weytsen had done.

The efforts of Giuseppe Casaregi (1670–1737) to reconcile practice, custom, and textual norms produced yet different results. His attempt is perhaps more coherent than Targa’s and seems to have been influenced in particular by Weytsen, whose work on Averages had been available in Latin (and thus rendered accessible to jurists outside the Low Countries) since 1672. Like Targa, Casaregi had passed his career in Genoa, as an attorney, consultant, arbitrator, and judge, when he published the first 50 of his Discursus legales de commercio in 1707, including provisions on Average.27 Casaregi added to his Discursus over time in successive editions. The discursus on Average and jettison examined here were, however, published as part of the first edition in 1707. See Piergiovanni, ‘Casaregi, Giuseppe Lorenzo Maria’. Later, in 1717, Casaregi would be invited by the Tuscan Grand Duke to become a judge of the ruota of Siena, soon moving up to the more prestigious Florentine ruota, the highest civil court in Tuscany.

Casaregi begins by declaring that he will omit any pointless discussion of whether the term ‘Average’ comes from the ‘Greeks, Arabs, or even the Scythians’ and simply note that the term is used everywhere. Casaregi then, for the first time in Italian jurisprudence, offers a definition of Average, much reminiscent of, though not identical to, Weytsen’s:

‘Proper’ Averages, meanwhile, are found in two varieties according to Casaregi: ‘Gross’ and ‘Common’. Whereas Targa uses the term Common Average (avaria commune) and Gross Average (avaria grossa) interchangeably, Casaregi places a divide between them. Here he was in part influenced by Weytsen’s definition of Small Average (which, it should be remembered, was sometimes called Common Average in a Dutch context) and perhaps, though he does not cite it, by Chapter 110 of the Llibre which assigns extraordinary expenses for entry into a port to the merchants alone. Common Average, for Casaregi, covers payments ‘devoted to preserving the ship and merchandise from danger’.29 Casaregi, Discursus legales de commercio, vol. 1, p. 281. The instances he gives are when some money is given to local ‘practical people’ in return for assistance, when the master pays a sum passing through a river or a port, or when the shipmaster pays convoy money to a ship of war.30 Ibid. Here, the ambiguity that bedeviled ‘Small’ or ‘Common’ Average is illustrated well, for the first instance is likely to be an extraordinary expense, the second is likely to be an ordinary one, and all three could conceivably be either. In situations of Common Average, Casaregi states that only the merchandise needs to contribute, and that the ship is excluded.31 Ibid. He notes, however, that by custom the ship also usually contributes to Common Average. Common Average is, moreover, ‘practiced differently according to regional variations or national styles’.32 Ibid. Gross Average, meanwhile, takes place ‘when certain things are thrown into the sea on account of a labouring ship having to be lightened’; in these cases, contribution from merchandise, ship, and freight is due.33 Casaregi, Discursus legales de commercio, vol. 1, pp. 281–2.

When we examine the Tuscan operational documents, we will see all of these expenses being indiscriminately partitioned through GA without distinction, with half of the ship contributing, and a third of the freight. As Casaregi himself goes on to note:

Casaregi, for his part, was clearly perturbed by the lack of authoritative support in existing authoratitive texts for the practices he witnessed as a maritime lawyer. The payment of extraordinary expenses could be partly rationalised as ‘Common Average’, but this was at the same time intuitively unsatisfactory because it required the merchants to pay for what more obviously pertained to the ship. Ultimately, Casaregi felt that Average ought to be reduced to the ius commune, i.e. the Roman law of jettison; what he called ‘Gross Average’ – the jettisoning of cargo or the cutting of ropes or masts – was the only Average worthy of the name. Far from dividing jettison and Average as Targa does, Casaregi puts jettison at the conceptual centre of ‘Gross Average’ (avaria grossa) in his Discursus. Indeed, for Casaregi, jettison and mast cutting are the only true, legitimate form of ‘GA’. These considerable differences between the accounts of two Genoese contemporaries demonstrate how far away jurisprudence was from successfully reconciling existing norms and what was going on in maritime practice. It also explains why in Casaregi’s translation of the Llibre we find no reference to ‘Average’. Since the word ‘aueries’ in the Llibre is never found in relation to jettison but refers to specific, extraordinary expenses borne by merchants, translating these as ‘Averages’ would have disturbed the careful schematisation Casaregi was trying to outline with the help of Weytsen and the Digest, placing jettison firmly at the conceptual heart of General Average. He thus translates aueries as ‘extraordinary expenses’ (spese straordinarie). Doing otherwise risked introducing futher ‘impropriety’ into an already confused landscape.38 E.g. Casaregi, Consolato del Mare, p. 33.