The Court Procedures: The Evidentiary Phase

After establishing the value of all the property involved in the voyage, the calculators would then list and value the expenses or damages incurred. By dividing the total damages by the total value of the voyage, they would arrive at a contribution rate. This would be expressed as ‘X pieces for every 100 Tuscan golden scudi/pieces of eight’ (depending on the currency being used), meaning that for every 100 scudi/pieces of property invested in the voyage, the interested party contributed X amount towards the loss, damage, or expense. The calculation finishes with the signatures of the calculators and is counter-signed by the Consoli, who reserved the right to change the values arrived at by the calculation.1 ASP, CM, AC, 25-24 (13 April 1600), Testimoniale.

This was the end of the procedure as represented in the documentation. It seems likely that, more often than not, the final stage of reimbursement – in which it was decided who specifically owed what to whom and money actually changed hands – was coordinated by the master, who took the required contribution from each party, and, if the loss had been suffered by cargo interests, would then distribute the money to the affected parties in lieu of delivery of the goods. Often, in the case of damage to the ship or the payment of expenses, it would be the master himself who was out of pocket; he might even have been forced to take out a sea loan during the voyage in order to pay for expenses of repairs.2 See p. 174.

The identity of the calculators changed over our period. A government report of 1785 states that the calculations were drawn up by two employees of the Pisan customs house, for a fixed fee of two pieces of eight.3 ASL, Governo civile e militare, 977, f. 28r. This was not, however, the system in place at the beginning of the seventeenth century, nor, it would seem, at the end. In the 1600 and 1640 samples we find that the calculators were drawn from the borse di ricorso, the pool of merchants who, according to the 1561 reforms, could be drawn on to form a judgement if a case before the tribunal was reaching the 45-day limit. One calculator would be drawn from the Florentine borsa, the other from the Pisan one. On one occasion only one calculator was elected.4 ASP, CM, AC, 27-26 (1 September 1600). In the early part of the period, then, it was recognised merchants who were responsible for valuing the cargo.

Sometime between 1640 and 1670, the borse appear to have been dissolved: we can probably narrow this window down even further when we consider that, in 1662, a report for the Consulta relates that the ‘special judgement of ricorso, done with the participation of merchants, had by now fallen into disuse’.5 Sanacore, ‘I consoli del mare’, p. 192. Since there is a case involving ricorso as late as 1652, the change most likely occurred in the 1650s.6 ASP, CM, AC, 239-5. This probably reflects a decline in native merchant corps, especially in Pisa, given that most merchants, native and foreign, had moved to Livorno by 1640: it may simply have been impossible to maintain a fresh supply of recognised merchants every three years.

After the dissolution of the borse, it is unclear how Consoli elected the calculators, but it does not seem that they were using members of the customs house. In 1670, we find 15 different individuals appearing as calculators, a large number considering the fact that the Consoli elected only two calculators for each calculation, and that only 16 GA calculations were drawn up that year.7 The other cases either had no calculations or were the enforcement of calculations drawn up elsewhere: ASP, CM, AC, 321-25 (25 August 1670); ASP, CM, AC, 322-16 (9 November 1670). None of the names are to be found in the indices of notarial protocols, ruling out the possibility that they were notaries. Though the customs house would be the obvious place to find candidates with the requisite skills, 15 seems an improbably large number of estimators working in the customs house at Pisa. It is possible that the Consoli nominated Livornese merchants on an ad hoc basis to work as calculators.8 ASP, CM, AC, 321-30 (30 August 1670). See Chapter 4 for further discussion.

The method of valuation adopted is one of the main practical ways in which GA rules, ostensibly similar in theory, could vary greatly in practice.9 On valuation in Tuscan GA cases see also Jake Dyble, Antonio Iodice, and Ian Wellaway, ‘The technical challenges of measuring maritime trade in the early modern Mediterranean: Livorno and Genoa’, Histoire & mesure 38 (2023), 135–62, at pp. 143–4. The normative material deals with the problem of valuation in part, but different authorities provide contradictory assertions on what practice should be adopted. The Lex Rhodia states that contributing goods should be valued at the price which they can fetch, i.e. the market price at the destination, while sacrificed goods should be valued at their purchase price ‘since what is made good is loss suffered not gain foregone’.10 D.14.2.2.4; Watson, Digest, vol. 2, p. 420. The Llibre del Consolat de Mar, on the other hand, states that jettisoned cargo should be valued at the price of the port of origin (i.e. the purchase price) if lost in the first half of the voyage and at the destination (selling) price if lost in the second half.11 Casaregi, Consolato del mare, p. 28. This ‘rule of halves’ accords greater respect to the idea of an inherent value, with ‘value added’ to the cargo by virtue of its being transported to another part of the world, while the Roman jurists see the matter in terms of personal loss and gain, with loss being concrete and definite, and gain always hypothetical and thus not worthy of recompense. As with other aspects of GA, however, regional practices abounded. One record from 1670 preserved in Pisa includes an original calculation made in Marseille where the calculator adopts a much more complicated procedure than in Tuscany.12 ASP, CM, AC, 322-16 (9 November 1670). The GA itself is for various extraordinary fees paid to the French consulate on leaving the Levant. The contributing cargo is explicitly valued according to the current price on the Marseille piazza, but then expenses such as the freight paid on each item, ‘percentage of the city’, quarantine payments, and similar charges are deducted.13 ASP, CM, AC, 322-16 (9 November 1670), Calculation. The rationale would appear to be that the cargo had an inherent value at the time of the incident, one which included some value added in the form of profit but which did not yet include various port charges which would be factored into the eventual selling price: the freight, meanwhile, had already paid GA and should likewise be excluded.

Whatever the exact rationale in the Marseille example, it at least illustrates there were many different theories about how values should be fairly arrived at, and that normative rules were not always followed. Nor did these rules cover every eventuality. The Llibre, for example, seems to envisage a simple journey from point A to point B, with no provision for a ship making multiple stops. It only refers to the valuation of jettisoned cargo and is not clear about how the passive mass should be valued: whether the cargo should be valued at the selling price at the destination, as in the Lex Rhodia, or whether the ‘rule of halves’ applies to the passive mass, too. Applying the rule of halves would presumably be the more consistent approach, but the Consolat is certainly not explicit about this.

The Tuscan calculations themselves provide scant detail about how values were obtained or the process which lay behind their creation. The preambles to many of the 1600 calculations say that the calculators have been elected to ‘estimate, calculate, and repartition’ the damages (stimare, calcolare e ripartire), but nothing is said about the passive mass (and it is at any rate clear that the calculators are often not the ones estimating the damage).14 E.g. ASP, CM, AC, 25-21 (16 May 1600), Calculation. What we can glean from the sources shows that no single approach was adopted across all cases. Among all the GA cases surveyed, we only find the ‘rule of halves’ explicitly adopted twice for the sacrificied cargo.15 The cases where we find the rule: ASP, CM, AC, 27-26 (9 September 1600); ASP, CM, AC, 418-21 (1 July 1700); cases where we would expect to find the rule and do not: ASP, CM, AC, 318-26 (22 January 1669); ASP, CM, AC, 197-43 (6 July 1640). These two cases occurred in 1600 and 1700, which suggests that the rule remained current throughout the period even if it was not adopted in the majority of cases. There are several cases where we would expect to see the rule of halves applied, but there is no indication that this was so. It is interesting to note, however, that in 1600 the rule of halves is explicitly applied to both the active and the passive mass; since the accident happened in the first half of the journey, all cargo is valued at the price in the port of origin. In the 1700 example, on the other hand, it is clearly being applied only to the jettisoned cargo.16 ASP, CM, AC, 418-21 (1 July 1700), Calculation. Whereas in 1600 the logic of the Consolat is adopted (value is added to the cargo thanks to its being transported), in 1700 it would appear to be that of the Lex Rhodia (concretely realised gains contribute while ephemeral unrealised gains are not eligible for compensation).

Judging by the layout of the calculations, it seems likely that the calculators worked on the basis of a bill of lading provided by the shipmaster, and that, in the majority of cases, cargo was valued at the current going rate in Livorno, as was clearly practised in Marseille. This was surely the only approach which was practical in cases in which Livorno was an intermediary stop and there were many cargoes destined for many different ports. Calculators seem to have occasionally taken account of the report of the two merchant ‘deputies’ (deputati) who were sent to inspect the cargo and reported damages. Deputies, also sometimes called ‘assistants’ (assistenti), were often elected to supervise the unloading of the ship, and were sometimes requested by the shipmaster.17 ASP, CM, AC, 322-27 (9 December 1670), Request for deputies. They were not elected in every case, however, and there does not appear to have been a consistent logic behind their participation. They often provided details on what was present, giving information on weights and merchant marks, and sometimes reporting if certain cargo had been damaged.18 ASP, CM, AC, 322-27 (9 December 1670), Report. It was only occasionally, however, that they gave a monetary value to damage which the cargo had sustained, and still more infrequently did they provide a value for the cargo in good condition to be incorporated into the calculation, though this did sometimes take place.19 ASP, CM, AC, 319-3 (30 January 1669), Report; ASP, CM, AC, 418-12 (25 May 1700), Report. In one example from 1670, Carlo Benassai and Guglielmo Van Weltrusen claimed that their cargo of hides had received water damage: deputies were sent to assess the damage and this was duly incorporated into the calculation.20 ASP, CM, AC, 318-26 (22 January 1669). In the case in question, however, there were many receivers who had received hides, which were most likely similarly damaged, but this was never brought to light and no adjustment was made to the value of their cargo with respect to any hypothetical damage. This suggests that, in this case at least, valuation was being made without reference to the receiving merchants or the deputies unless the merchants specifically requested it. Since for most of the century most of the goods would have been valued for the purpose of levying customs charges, this could also have plausibly provided a ready source of values. Using a valuation different from that of the customs house, moreover, would have occasioned disputes. However, after 1676 the port no longer levied customs charges, instead demanding a flat fee for every parcel of goods.21 See Frattarelli Fischer, ‘Livorno 1676’.

Ultimately, the important thing in evaluating the passive mass was not complete accuracy in valuation but rather a just proportionality between interests.22 Addobbati and Dyble, ‘One hundred barrels of gunpowder’, p. 838. An overvaluation of all items in the passive mass by 10 per cent, for example, would have no effect on GA contributions, since the amount to be paid in damages remained the same: one’s contribution to that amount depended on the proportion of the overall venture in which one was interested. This did not render the method used for valuing the passive mass completely irrelevant – some cargoes would have gained more value thanks to their being transported than others – but it certainly must have removed some of the urgency from the question. That contemporaries thought the same way is demonstrated by an unusual case from 1692 in which it was discovered that the bill of lading was missing crucial details.23 ASP, CM, AC, 393-81 (12 November 1692), Judgement. It was impossible to discover who had had which cargoes and, consequently, who owed what. The calculators solved the problem by using the freight that each party had paid to work out the GA, since these would reflect, albeit imperfectly, the proportional interest of each player.

As for damages to the ship, there were two principal ways in which damages were valued: the court could send two experts (periti) to inspect the damages, or the master might submit the values himself. If expert assessment was adopted, the Consoli would send to the governor’s court commanding their election: for each year we find that the same two experts were elected in every case. In 1640 and 1670, these were master shipwrights (the capo maestro de calafati and capo maestro de capi d’ascia) attached to the Grand Duke’s fleet of galleys.24 ASP, CM, AC, 319-25 (25 August 1670); ASP, CM, AC, 196-37 (2 January 1639). In 1700, it is impossible to tell exactly what professional group the experts belonged to as they did not state their roles, though one of them is sometimes given the title ‘captain’ (capitano), suggesting that they might have been a commander of one of the Grand Duke’s galleys.25 ASP, CM, AC, 417-5 (19 January 1699), Judgement. These experts would make an inspection of the ship and deliver a written report, including a suggested value for the damages. The ‘self-assessment’ method, on the other hand, could take a few different forms. Sometimes a ‘suggested’ value would be incorporated into the testimoniale itself: for example, in 1600, a master ‘was forced to cut away six oars that were attached to the outside of the said ship, which could be worth around £3.10 Sterling or around 14 scudi in Florentine money’.26 ASP, CM, AC, 25-28 (8 April 1600), Testimoniale. Alternatively, masters could submit more detailed breakdown of damages submitted in a separate document, apparently on their own authority. These more procedurally dubious methods will be discussed further in Chapter 4.

These two avenues – master’s submission or expert valuation – were the two principal means of evaluating damages which we find in the procedures, but they were not the only ones. In one example from 1700, the case of the Sante Anime del Purgatorio, the evaluation of the damages is done consensually by both parties. A document submitted to the court lists the damages, and the master and the merchants both provide the values they think should be attached to each one.27 ASP, CM, AC, 418-7 (6 April 1700), Estimation of damages. A compromise figure was then chosen between these two values, and we learn in the judgement that this mediation was facilitated by Rafaello Medina, described as a ‘mutual friend’ of the two parties.28 ASP, CM, AC, 418-7 (6 April 1700), Judgement. In another case from the same year, which started as an arbitrated case, four members of the Jewish natio were chosen to provide all values required for the GA, including the estimation of the ship.29 ASP, CM, AC, 418-11 (14 May 1700). Eventually they handed the case on to the Consoli, unable to reach a satisfactory decision as to whether articles stored on deck should be included in the passive mass (see below).30 ASP, CM, AC, 418-11 (14 May 1700), Statement, List of Reasons. Yet the values that they had already established for ship and cargo remained in use. This is also, interestingly, the first and only time in which we find the word ‘adjust’ used to describe the resolution of an average case (aggiustare), i.e. the modern verb used in English to describe the process of resolving a GA.31 See Cornah, A Guide, pp. 10–11. It may not be a coincidence that we find the word being used in a context closely analogous to modern GA resolution, i.e. recourse to a trusted third party made up of private specialists.