Jettison and Mast Cutting
Analysing the precise wording (and significant silences) of these sea protests ultimately reveals tensions between the relevant normative material on contribution and the way that GA was used by early modern merchants. As we saw in Chapter 2, the two salient normative touchstones – the Lex Rhodia and the Llibre del Consolat de Mar – were built above all around the example of jettison, with some discussion of mast and rope cutting, and limited discussion of other kinds of property sacrifice. The Lex Rhodia was not explicit about how far the GA principle could be extended, though it does mention ransoms and cargo lost in lighters, whilst the Llibre apparently treats jettison, ransom, beaching, and extraordinary expenses as different instances, each with their own specific rules for collective defrayment rather than as part of a single institution like GA.
When it came to jettison and mast cutting, therefore – the majority though not the vast majority of our cases – shipmasters and, more pertinently, the legal technicians of the court could draw upon a fairly rich normative inheritance. Here, the
consolati and especially the
testimoniali are very explicit about these expenses and go into great detail into order to properly justify them as per the
Lex Rhodia and the
Llibre del Consolat de Mar, as well as
ius commune presumptions about carrier’s liability that had been crystallised in preceding centuries. In these circumstances there is clear emphasis on the coercive nature of the circumstances in the accident reports: ‘it was necessary’, ‘it was forced’, ‘it was not possible to resist’ are all phrases which recur time and time again in the narratives.
1 E.g. ASP, CM, AC, 199-23 (20 November 1640), Consolato; ASP, CM, AC, 319-13 (28 February 1669) Testimoniale; ASP, CM, AC, 319-3 (30 January 1669), Testimoniale. At other times it is the imminent danger that suggests the effective impossibility of other action in the circumstances: ‘with evident danger of sinking’ or ‘the shipwreck was clearly imminent’.
2 ASP, CM, AC, 319-20 (18 March 1669), Testimoniale and Consolato; ASP, CM, AC, 319-28 (28 April 1670), Consolato. This emphasis on constraint by circumstances reflects
ius commune assumptions about the shipmaster’s liability. A prime concern of the shipmaster, and a necessary preliminary to a GA declaration, was to divest himself of any liability. Guido Rossi, moreover, has shown how the civil law considered the master of a vessel to be a
conductor under
culpa levissima, which, the name notwithstanding, actually held shipmasters to an incredibly high standard of care for the merchandise they were carrying.
3 Rossi, ‘The liability of the shipmaster’, p. 19. In effect, this placed the burden of proof on the master if there was an accident to show that he was not liable. By the seventeenth century, however, and in many ways to avoid thorny problems about the nature of causation, civil lawyers and courts had brought about the crystallisation of a series of presumptions about liability, essentially outlining a list of situations in which the master was and was not presumed liable. Significantly for GA, in any case of
casus fortuitus the master was presumed not to be responsible.
4 Rossi, ‘The liability of the shipmaster’, p. 23. This explains why we see so much emphasis on the constraints posed by storms, wind, and in generally being ‘forced’ to do things by the elements, though this may on a philosophical level exclude the possibility of voluntary action. Once
casus fortuitus was established, the master was absolved of an otherwise formidable burden of proof. A telling example of this can be found in the case of the
Madonna delle Grazie brought before the
Consoli in 1670.
5 ASP, CM, AC, 319-25 (18 April 1670). The ship had jettisoned in order to get off the shoal on which it had become stuck while sailing in shallow waters. Sailing in a dangerous area could call the conduct of the master into question and could be argued to be an act of negligence.
6 Rossi, ‘The liability of the shipmaster’, p. 22. It is unsurprising, therefore, that in this case the narrative makes sure to foreground the fact that there was not only a wind rising, but that the master had only entered those shallow waters in order to escape from two square-rigged ships which he thought had been corsairs.
7 ASP, CM, AC, 319-25 (18 April 1670), Testimoniale. It is somewhat surprising that, by contrast, explicit reference to the voluntary nature of the sacrifice only emerges once in the entire data set, even if the voluntariness clearly constituted the conceptual divide between the GA and PA (as mentioned, the sources use the term
avaria for both).
8 For example, there is a clear division of damages between GA and PA within the same sea-loan case in ASP, CM, AC, 322-27 (9 December 1670), Calculation. The importance of the voluntary criterion clearly emerges from the only GA case among our samples which was refused by the
Consoli. A
consolato submitted in 1670 by the master of the
Madonna del Carmine recorded that ‘thanks to the storm we lost the main mast’.
9 ASP, CM, AC, 321-25 (25 August 1600), Consolato. When it came to the judgement, the
Consoli refused to award the GA on the grounds that it was ‘not the place for a demand for Average for the broken mast’.
10 ASP, CM, AC, 321-25 (25 August 1600), Judgement. Yet the sole explicit reference to the voluntariness occurs in a set of merchant objections which claims that the mast was broken by the wind and was therefore not liable for GA.
11 ASP, CM, AC, 25-28 (8 April 1600), Exceptions. The voluntary nature of the sacrifice is never explicitly alluded to in any of the
consolati or
testimoniali, in contrast to the repeated emphasis on the circumstances which ‘forced’ the sacrifice or made it ‘necessary’. The interested merchants in this case were two Englishmen, ‘Giovanni Barcher’ and ‘Tommaso Mun’ (the same Thomas Mun who would one day write
England’s Treasure by Forraign Trade, based in part on his experience as a factor in Livorno).
12 ASP, CM, AC, 25-28 (8 April 1600); Thomas Mun, England’s Treasure by Forraign Trade (London: J.G. for Thomas Clark, 1664). The case involved a broken mast which, according to the master, had been cut away during a storm. The merchants, however, maintained that ‘for its poor quality and defects [the mast] broke in that instant, meaning that the defendants should not be held to account for it, as indeed they are not, it being
casus fortuitus;
in this way it seems that it was fortune and not a voluntary cut’.
13 ASP, CM, AC, 25-28 (8 April 1600), Exceptions. The two merchants were, however, unsuccessful in convincing the
Consoli.