The Consultation in the Tuscan Documentation
If the voluntariness of an action was the dividing line between individual responsibility for damages and collective contribution, why do we only find it explicitly mentioned once in documentation explicitly designed to justify a declaration of GA? Only part of the answer lies in the fact that Tuscan sea protests cleaved formalistically to the need for a pre-jettison consultation between master and crew, a fact that presupposed voluntary action and obviates the need to mention it explicitly. In this they seem to have been anxious to follow the letter of the normative material. Indeed, the insertion or foregrounding of a consultation between master and crew is the prominent instance of ‘improvement’ carried out by the court technicians when drawing up the testimoniale. Despite Carlo Targa’s assertion that he had only ever come across four or five cases with a consultation in Genoa, in Tuscany we find that most jettison cases continue to mention it, even if its presence becomes a little less marked as the century progresses.
In all the 1600 and 1640 samples, we find that the
testimoniale makes reference to the consultation in every single case of jettison, usually using the wording ‘with the required consultation’ (
con la debita consulta).
1 E.g. ASP, CM, AC, 197-29 (26 April 1640); ASP, CM, AC, 198-17 (14 August 1640). In this respect they strengthen this element in the
consolati which is often hinted at more vaguely: the
consolati use a greater variety of wordings to express this idea, vaguely referencing either a conference (
consiglio) or stating that the jettison was made ‘by common agreement’ (
di commune accordo).
2 E.g. ASP, CM, AC, 197-4 (14 February 1639), Consolato. In other cases the
testimoniali actually depart from the
consolati narratives in order to insert the consultative element. One particularly resonant example is the case of the
Santa Maria della Nunziata (1600), which made its
consolato in Gaeta before the Genoese consul after a jettison of grain. This
consolato simply records that ‘in order to avoid drowning and losing the vessel and the merchandise we were of the opinion that a jettison should be carried out, for which reason it was done and we began to jettison’, hinting only very distantly to a consultation or the common consent of the ship’s company.
3 ASP, CM, AC, 27-26 (9 September 1600), Consolato. The
testimoniale, however,
recounts the jettison in the following way: ‘they were faced with the shipwreck and loss of the ship, merchandise, and persons, for which reason, and with the required consultation, it was resolved upon to begin to jettison for the universal salvation and benefit’.
4 ASP, CM, AC, 27-26 (9 September 1600), Testimoniale; See ASP, CM, AC, 25-3 (28 June 1600) for a very similar modification.In the second half of the century, this attention to the consultation is rather less present, though is still clearly a relevant consideration, and the pre-jettison consultation remains present in the majority of cases. In the 1670 samples, we do find that most jettisons were still (ostensibly) undertaken after a consultation: four of the seven jettisons reported in that year had explicit reference to a consultation in both
consolato and
testimoniale.
5 Jettisons in that year which include a consultation: ASP, CM, AC, 319-3 (30 January 1669/70); 319-18 (10 March 1669/70); 319-25 (18 April 1670); 322-39 (23 December 1670). There is even one case where the rather weak ‘they resolved themselves to [jettison]’ (
si risolvorno) of the
consolato was transformed by the
testimoniale into the much less ambiguous statement that the master ordered the jettison ‘with the counsel of his crew’ (
con il consiglio dei suoi marinai).
6 ASP, CM, AC, 319-18 (10 March 1669/70). Though this leaves three cases in which there was no reference to a consultation in either document, there were admittedly still more regular jettisons in a single year than Targa claimed to have seen in a lifetime of practice.
7 Jettisons of 1670 which did not include a consultation: ASP, CM, AC, 318-26 (22 January 1669/70); 320-2 (9 May 1670); ASP, CM, AC, 322-30 (15 December 1670). Likewise in 1700, five of the cases involving a jettison mentioned the consultation in the
testimoniale, with one even referring to a ‘consultation and parliament’.
8 ASP, CM, AC, 418-7 (6 April 1700); ASP, CM, AC, 418-20 (1 July 1700); ASP, CM, AC, 418-21 (1 July 1700); ASP, CM, AC, 419-27 (11 September 1700); ASP, CM, AC, 420-14 (9 November 1700). That the consultation was just beginning to come into question is illustrated by the case of the
Madonna di Monte Nero, a GA awarded in 1671 which was then challenged by means of a petition sent to the Grand Duke; the case was subsequently delegated to the Florentine
ruota.
9 ASP, CM, S, 985-333 (8 February 1671). On petitions to the Grand Duke see Guillaume Calafat, ‘La somme des besoins’. We can infer from documents submitted in defence of the master that one of the merchants’ objections was that the jettison had been done without consultation: the
consolato (which was made at Zante) apparently made no mention of it.
10 ASP, CM, S, 985-333 (8 February 1671), Master’s objection. In response, the master’s defence argued that, on the contrary, there was no need of a consultation before a jettison: since the jettison was carried out ‘in response to an effective need’ (
seguito al certo bisogno), consent could in fact be presupposed, and indeed, the jettison would not have been carried out if there had not been consensus.
11 ASP, CM, S, 985-333 (8 February 1671). Nevertheless, taking the belt-and-braces approach typical of the legal argumentation we find in the archive, the memorandum goes on to emphasise that, despite its omission from the original narrative, the four witnesses to the
consolato did in fact mention that a consultation preceded the jettison.
12 Ibid. The issue was thus clearly something of a grey area, and while the memorandum’s author was clearly willing to argue against the need for consultation, he still felt it prudent to erect a second line of defence by insisting on its having been made. This is further evidence that, though the situation was moving in the direction Targa described, the consultation had not yet been abandoned completely in Tuscany.