The Advantage of the Master
This idea that necessity actually presupposes common consensus is perhaps the more important reason why voluntariness or intentionality is not foregrounded and is a curious philosophical take on a problem originally posed by Aristotle: how can an act be forced and voluntary at the same time, both freely undertaken and yet dictated by circumstances?
1 Aristotle (trans. Terence Irwin), Nicomachean Ethics (Cambridge, MA: Hackett Publishing Company, 2019), Book III, Chapter 1, §§1–7 (1009b–1010a), pp. 35–6. Aristotle approached the problem from a somewhat unexpected angle that sheds light on the emphases we find in the sea protests. He proposes a division between voluntary and involuntary based on our appraisal of the action itself: voluntary actions are those which we praise or blame, while involuntary ones are those that we pardon or pity.
2 Aristotle, Nicomachean Ethics, p. 35; see also Frederick Adrian Siegler, ‘Voluntary and involuntary’, The Monist 52 (1968), 268–87, at p. 269. Aristotle then further defines the involuntary as an action to which the agent contributes nothing, which would seem to make a jettison voluntary, but this is inconsistent precisely because we would
not be inclined to blame the master in these circumstances. Aristotle thus introduces the concept of the ‘mixed action’: a case in which someone chooses something harmful through fear of a greater evil or for some noble purpose. In such cases it is open to question whether such things are voluntary or involuntary.
3 Aristotle, Nicomachean Ethics, p. 35. As we have already seen, what seems to have concerned early modern contemporaries above all was the question of the master’s liability: in other words, whether the master could be blamed for the loss or damages through negligence or ill intent, especially when this involved jettisoning the property of others in his custody. It is perhaps no surprise then that our sources foreground the necessity and even inevitability of what the master did, almost to the extent of portraying GA as an involuntary act.
In fact, once the necessity of an act had been established, its intentionality was both unproblematically assumed and very widely defined, a thing which, at a single stroke, massively increased the potential of the procedure as far as the master was concerned. Anything which could be described as resulting from a forced act undertaken by the master seems to have been placed into GA, and since it was the master and his crew members who were coordinating the describing, this did not turn out to be particularly difficult. Almost all mast damage described in all our
consolati and
testimoniali, for example, was made through some deliberate action. Only once, in all the accident reports, is a mast simply blown over by the wind.
4 ASP, CM, AC, 321-25 (25 August 1670). There is of course some selection bias at work here: one does not request GA in the first place if one does not believe that one’s sacrifice could plausibly be a GA. Nevertheless, the complete absence of accidentally damaged masts is suspect. We never find a mast broken by natural forces even in cases in which the principal expense in the GA was something other than the mast: an extraordinary expense incurred in port, for example. One would expect that, at least on a few occasions, there would be a mix of PA and GA damage to a vessel: maybe some expenses, and then accidental storm damage later in the voyage. The fact that we do not find this is thanks to the fact that, from the right point of view, any event could be made to seem the result of voluntary sacrifice. The case of the French ship
Cavallo Marino is a case in point, demonstrating how damage resulting from a storm might be recast as the result of human action, with a few narrative convolutions:
And because [bailing out] was not enough, there being always more water in the bilge in such a way that the ship was in evident danger of sinking and being lost with all its cargo, with, however, the advice of his officers and mariners and for the universal benefit, to save the ship, he resolved to run before the wind towards Baffa [Paphos], and in order to round the point that he found there, and thus enter into the harbour, he made to make all sail, during which [manoeuvre] the mizzenmast broke.
5 ASP, CM, AC, 319-20 (18 March 1669), Testimoniale.We cannot be sure whether all sail was necessary or not; the
Consoli could not be sure either and that was partly the point. What is clear is that an event which might more obviously be described as the direct result of natural forces (‘storm breaks mast’) could equally be presented as the result of human endeavour (‘master breaks mast through evasive actions during a storm’). Being fundamentally unfalsifiable, it was enough in the vast majority of cases that the voluntary aspect be simply asserted. Since choosing to do something is an action which is internal and unobservable, it would have been impossible to prove or disprove, even had the witnesses to the event been impartial.
6 Addobbati, ‘Principles and development’, p. 154. It was therefore possible to cloak certain damages to the ship which might more obviously be PA – and thus borne by the ship-owners – as GA, which were then borne by the collective.
This is not to say that there was no point in objecting to a master’s GA demand, or that masters’ control of information automatically and inevitably resulted in their being granted everything they asked for. If this were so, we would not find any conflict surrounding GA declarations, when in fact GA cases were the subject of contestation, conflict, and, occasionally, full-blown litigation: this will be given due consideration below. It should nevertheless be noted that conclusively disproving the master’s testimony was almost impossible in the majority of cases, and that the master thus entered any litigation at a distinct advantage. Merchants might claim that the master’s version of events was implausible, but they could not prove it wrong, and such objections never resulted in the case being dismissed outright in the cases examined. It is thus not surprising that the outcome of contested cases was generally a readjustment of the amount awarded, rather than the case’s outright dismissal.
7 See for example ASP, CM, AC, 320-7 (28 May 1670). Though the first phase of the procedure – the production of the
testimoniale and other evidentiary documents – was intended to determine whether or not a GA was appropriate, in actual fact this was very often taken for granted: the realistic object of merchant objection seems to have been to ameliorate their lot through a reduced contribution rate, rather than to overturn the judgement. Since the facts of the case could only be proved or disproved with great difficulty, this turned GA procedures from a forensic exercise into something which more resembled a negotiation. It is revealing that, in the two major pieces of GA litigation examined later in this book, the merchants’ primary objection was not that the GA demanded was unjust in and of itself, but that it was ‘exorbitant’, i.e. out of the ordinary line of cases.
8 ASP, CM, S, 985-333 (8 February 1671); ASF, MM, 358-17, John Finch to Cosimo III (4 February 1671). The relatively unreflective attitude towards the voluntary criterion comes into sharper relief in those cases in which the
casus fortuitus which blocked the ship’s progress was an irresistible force of a human power. In the case of the
Sante Anime del Purgatorio, the ship, commanded by a French shipmaster and presumably flying a French flag judging by subsequent events, had left Livorno in July 1699 bound for Tétouan in North Africa.
9 ASP, CM, AC, 418-11 (14 May 1700). It then met two French warships which compelled the master to shelter in the port of Gibraltar. The King of Meknes had taken all the French merchants and the French consul to Meknes for as-yet unclear reasons: until it was safe to proceed the warships ‘forced’ the
Sante Anime to remain in the harbour. This incurred considerable expenses of food, salaries, anchorage, and the expense of sending a man to the French consul at Cadiz to certificate this event, all of which were later placed into GA and defrayed by common contribution. Despite the fact that the master had had no effective say in the matter, the GA was presumably justified here on the grounds that the action had thus ensured the ‘security’ of the ship and cargo.
We will recall that a recurring doubt regarding GA is the object or end of a GA sacrifice: whether this is for the ‘general safety’ (a situation of peril) or the ‘general benefit’ (enabling the ship to complete the voyage). Though sea protests are in no way clinically precise about the employment of these terms, what is clear is that the early modern Tuscans clearly adhered to the latter, wider definition, and that any loss of property incurred for the general benefit was considered a legitimate GA. ‘Universal benefit’ (benefizio universale) is in fact the phrase used by testimoniale e domanda when formally demanding the GA to describe the loss or damage, and this phrase also occurs more often than not in the judgement. The example from the testimoniale of the San Spirito e San Pietro Buona Ventura in 1640 is typical:
… condemning furthermore the said receiving merchants to come together in Average,
lira and
soldo, with the value and estimate of the said
tartana [the vessel] and the master with the value and estimate of half of the said
tartana and a third of the freight, for the restitution and restoration of the [jettisoned items], all jettisoned into the sea, left and lost for the universal benefit ….
10 ASP, CM, AC, 196-38 (2 January 1639), Testimoniale. As well as the classic examples of jettison and mast cutting, sacrifices admitted to GA in Tuscany include other deliberate acts for the ship’s safety (the deliberate beaching of the vessel, hiring local assistants to help the ship off a shoal, the expense and damages sustained in fighting off corsairs) but also expenses not arising from situations of peril, some of which can only tenuously be described as intentionally incurred: seamen’s wages and legal costs while sequestered in port, bribes to local officials, some specific local taxes, as well as even more unexpected costs such as divers’ fees and expenses incurred sending messengers with warnings.
11 ASP, CM, AC, 25-26 (10 April 1600); ASP, CM, AC, 318-26 (22 January 1699); ASP, CM, AC, 321-30 (30 August 1670); ASP, CM, AC, 314-9 (16 March 1668); ASP, CM, AC, 319-20 (18 March 1669); ASP, CM, AC, 321-14 (23 July 1670); ASP, CM, AC, 199-16 (15 November 1640). One of the more striking examples of the ‘common benefit’ approach comes from a case from 1640. Lorenzo Buonaccorsi, the owner of the
Santo Domenico, was awaiting his ship’s return
from Lisbon with cargo for several Livornese merchants, including members of the Sephardic-Jewish Ergas family (the cargo and its value is unfortunately unknown because the calculation is missing from the file).
12 Trivellato, Familiarity of Strangers, pp. 23–34. When he found out that the hostile French Armada was abroad in the waters around Livorno, Buonaccorsi sent a felucca (a small wooden sailing vessel) captained by Giovanni Pietro Mattei as far as Barcelona to find the ship and warn it of the French Armada’s position. This mission was successful, and the master, Paolo Maria Cardi, took the
Santo Domenico into Genoa instead. The French had not yet moved their fleet however, so Buonaccorsi sent a messenger on foot to Genoa to tell Cardi not to sail for Livorno until he received further instructions. When the Armada moved to the bay of Ponsa, another felucca was then sent to Genoa to tell Cardi to come down to Livorno with the good weather. The felucca was sent off to the bay of Gorgona to keep a look out for the return of the French. With the ship securely in port, Buonaccorsi, the ship-owner, brought a GA case to share the expenses between all interested parties. In this case, the
testimoniale argues that the expenses were made ‘for the benefit of the ship and cargo’ and ‘as an expedient’ (
per spediente).
13 ASP, CM, AC, 199-16 (15 November 1640). Such an expense was considered legitimate – and apparently raised no objections among the merchants – even though they were clearly precautionary rather than sacrifices to save the ship certain peril.
Though the term ‘general benefit’ is the one most commonly found in the documentation, it should be noted sea protests did not use the terms ‘safety’ and ‘benefit’ with too much consistency. In the cases from 1640, every single judgement and
testimoniale contain this phrase (8 out of 8). In the cases from 1670 just over half (10 out of 19) of the
testimoniali contain it, as do around a third of the judgements (6 out of 19). In the 1700 cases 11 out of the 12 judgements contain a reference to the universal benefit, and it is mentioned in either the
testimoniale or the
consolato in 9 of those cases. The exception to the rule is, interestingly, the cases from 1600, where it finds its way into only 3
testimoniali or
consolati out of a possible 12 cases and is mentioned in only 1 judgement. Sometimes they instead talk about the ‘saving’ or ‘safety’ of the ship (
per salvare,
salvezza,
salute, or similar).
14 E.g. ASP, CM, AC, 196-38 (2 January 1639); ASP, CM, AC, 319-13 (28 February 1669); ASP, CM, AC, 25-28 (8 April 1670). Less commonly, we are left to infer salvation from the conditions described immediately preceding the action: ‘in great danger of drowning’, for example (
gros pericolo di annegarsi [sic]).
15 ASP, CM, AC, 199-23 (20 November 1640). Many cases use both ‘benefit’ and ‘safety’.
16 ASP, CM, AC, 196-37 (2 January 1639); ASP, CM, AC, 196-28 (2 January 1639); ASP, CM, AC, 197-4 (14 February 1639); ASP, CM, AC, 197-29 (26 April 1640); ASP, CM, AC, 197-43 (6 July 1640); ASP, CM, AC, 198-17 (14 August 1640); ASP, CM, AC, 199-23 (20 November 1640). There is not, however, a clear link between physical damage and ‘salvation’ on the one hand and extraordinary expenses and ‘benefit’ on the other. In the case of the
Mercante Fiorentino which came loose from its moorings during a storm while anchored in Livorno, we are told in both the
consolato and the
testimoniale that the crew cut an anchor rope for the ‘universal benefit’, and then beached the ship, also for the ‘universal benefit’.
17 ASP, CM, AC, 319-28 (28 April 1670).