The Limitations of Private Resolution
Before examining the court documentation, it is first worth briefly noting that the cases we find in the archive do not represent all GA cases carried out in Tuscany during this period. It was, in fact, possible for GAs to be resolved privately without any involvement by the court, albeit in a limited set of circumstances. Though such cases by their very nature tend not to make an impression on our source base, we do have one case in which private resolution is explicitly referenced. A master from Pisa requested a GA before the
Consoli in December 1599 for his ship,
San Torpè, including in his
testimoniale e domanda the detail that between him and the merchant ‘there had always been the intention to reach an accord on this business without disputes … and with a month having past it became clear that nothing was being decided … instead it was necessary to resort to their lordships [the
Consoli], as he has done’.
1 ASP, CM, AC, 27-30 (31 November 1600), Testimoniale. Having initially turned to the
Consoli, it then seems that the case was committed to arbitrators the following February. But this too failed, and the
Consoli ended up adjudicating the case themselves almost a full year after it started.
This example demonstrates several things. It firstly reminds us that requesting a GA before the
Consoli was not compulsory and that private resolution was possible, whether through informal agreement between the parties themselves or through arbitration. It should be remembered in this latter regard that turning to arbitration was not an ‘informal’ means of resolving a dispute: an arbitration process was both binding on the parties involved and recognised in courts of law.
2 Christian Burset, ‘Merchant courts, arbitration, and the politics of commercial litigation in the eighteenth-century British empire’, Law and History Review 34 (2016), 615–47, at pp. 621–2; Ana Belem Fernandez Castro, ‘Handling conflicts in long-distance trade: a view of the Mediterranean through the experience of merchants operating in the Kingdom of Valencia in the late sixteenth century’, in Louis Sicking (ed.), Conflict Management in the Mediterranean and the Atlantic, 1000–1800 (Leiden: Brill, 2020), 237–59, at pp. 248–52. Secondly, it shows that the court could be flexible, and responded to instructions from the parties about how to proceed: in this example, the case was initiated, then paused while arbitration took place, then restarted when arbitration failed. Though we know about this example precisely because these alternative routes to resolution failed, it is likely that most of the time they worked without issue.
The most salient point about this case, however, is that we are dealing with an unsually restricted circle of participants: the master (a native of Pisa, which was in itself unusual) and a single merchant based in Livorno. In circumstances like these it would have been easy to coordinate the parties and reach an amicable settlement. Other voyages, however, might involve hundreds of interested parties. Moreover, if there were receivers based in other ports, it would have been necessary to present evidence of an official judgement by a competent authority to those receivers in order to ensure payment, since even formal arbitration could only bind participants who had actually been party to the agreement.
3 Fernandez Castro, ‘Handling conflicts’, p. 250. This immediately ruled out the arbitration or private arrangements for any GA that involved a receiver based in another jurisdiction, a common occurrence in a port-of-transit like Livorno.
4 Andrea Addobbati and Jake Dyble, ‘One hundred barrels of gunpowder. General average, maritime law, and international diplomacy between Tuscany and England in the second half of the 17th century’, Quaderni Storici 168 (2021), 823–54, at pp. 843–4. It should also be noted that the attractiveness of arbitration or informal agreement would most likely decline as a number of participants in a GA increased, even when all did hail from a single jurisdiction. Merchant preference for an informal or arbitrated settlement is often asserted by historians, but the coordination problems involved in reaching an agreement between all players would likely outweigh the benefits of avoiding court fees in a larger case because shared administrative costs became progressively smaller for each individual player as the number of participants in a GA increased.
5 Nevenka Bogojevic-Gluscevic claims that in the medieval eastern Adriatic, arbitration was the preferred mode of resolution. See Nevenka Bogojevic-Gluscevic, ‘The law and practice of average in medieval towns of the eastern Adriatic’, Journal of Maritime Law and Commerce 36 (2005), 21–60, at p. 59. For the preference of merchants for arbitration or informal resolution over recourse to the courts see Adrian Leonard, ‘London 1426–1601: marine insurance and the law merchant’, in Adrian Leonard (ed.), Marine Insurance: Origins and Institutions, 1300–1850 (Basingstoke: Palgrave Macmillan, 2016), 150–75, at pp. 161–3; Trivellato, The Familiarity of Strangers, pp. 153–4. We can therefore be fairly certain that we have all or almost all of those cases involving receiving merchants in more than one jurisdiction: this is underlined by the fact that all those cases in which we have evidence of private agreement were cases involving just Livorno-based merchants.
6 ASP, CM, AC, 27-30 (31 November 1600); ASP, CM, AC, 418-11 (14 May 1700). It is, however, impossible to know how many cases of GA were declared in a certain year and what proportion of the total cases went before the
Consoli del Mare. Moreover, it is also one of the arguments of this study that even in cases that were resolved ‘formally’, a great deal of negotiation happened outside the courtroom that only leaves a very faint impression in our evidence base, and that the court in turn was very responsive to this. These dynamics will be fully reconstructed in a single case study examined in Chapter 4.