Mercantile and Juridical Conceptions of GA

First in this category are payments of the French cottimo. The cottimo was a levy introduced by the French state to be made on all ships flying the French flag which entered a Levant port.1 Calafat, ‘Livorno e la camera di commercio di Marsiglia’, pp. 238–9. This tax was ostensibly to pay the expenses of the French nationes and for the maintanence and improvement of the French consular apparatus there. It was originally envisaged as an una tantum: a one-off. In reality, it became a long-standing duty and even took on a protectionist aspect, as it would be waived if a ship returned directly from the Levant to Marseille (with Livorno as the unspoken target). Guillaume Calafat finds that this Navigation Act à la français was not very successful, and in fact we find several instances in the 1670 sample of French ships stopping at Livorno and splitting the cost of the cottimo through GA.2 Dyble, ‘Divide and rule’, pp. 374–8. What is strange, however, is that we do not find such costs justified in the consolati or testimoniali. We do find attestations in the GA file (attestazioni or relazioni) signed by the French consul in the port that certify that such payments were indeed levied and paid, but though it was clearly important to provide proof that payment of such expenses actually took place, there is no attempt to justify these under the rubric of GA.

The same thing occurs with another ‘political’ imposition. These were the costs associated with the so-called ‘avanias’. Avanias, still little understood by historians, were large demands levied by the Ottoman authorities on individual European traders or European trading nationes resident in the Empire.3 Merlijn Olnon, ‘Towards classifying avanias: a study of two cases involving the English and Dutch nations of seventeenth century Izmir’, in Alastair Hamilton, Alexander H. de Groot, and Maurits H. van den Boogert (eds), Friends and Rivals in the East: Studies in Anglo-Dutch Relations in the Levant from the Seventeenth to the Early-Nineteenth Century (Leiden: Brill, 2000), 159–86; Maurits van den Boogert, The Capitulations and the Ottoman Legal System: Qadis, Consuls, and Beratlıs in the 18th Century (Leiden and Boston: Brill, 2005), pp. 117–41. The European sources, which are the only ones to use the term ‘avania’, present these as unwarranted and unjust demands, effectively depicting them through an Orientalist lens as examples of Ottoman despotism and tyranny. There is reason to believe, however, that these were more like fines that were levied when disputes between Europeans and the authorities spiralled out of control.4 Olnon, ‘Towards classifying avanias’, pp. 169–75. In the French case, at least, the costs of avanias borne by the natio were then passed on to its shipping. In a manner not dissimilar to the approach used for the cottimo, ships flying the French flag were assessed by the natio (on exactly what criteria it is not clear) and awarded a portion of the avania that the master was then obliged to pay.5 ASP, CM, AC, 319-20 (18 March 1669); ASP, CM, AC, 322-33 (16 December 1670); ASP, CM, AC, 322-39 (23 December 1670). The French nationes thus operated a kind of meta-GA, a system of collective contribution across all French ships trading in the Ottoman Empire (and via GA, the interested merchants back in Europe). In the first instance, the sum demanded was paid by the master, usually with the help of local merchants who lent him the money at interest via a sea loan (later the interest would also be put into the GA). On one occasion, the French natio even demanded contribution for payments for gifts to the Turkish officials on the basis that otherwise the Turks might levy an avania.6 ASP, CM, AC, 319-20 (18 March 1669). This raises the intriguing possibility that the French nationes used the avania as an excuse to defray the ordinary expenses of maintaining good relations with their hosts.7 See Jake Dyble, ‘The threat of the “avania”: financial risk in European–Ottoman trade and the growth of an Orientalist discourse, 1660–1710’, in Jake Dyble, Alessandro Lo Bartolo, and Elia Morelli (eds), Un mare connesso: Europa e mondo islamico nel Mediterraneo (secoli xv–xix) (Pisa: Carocci editore, 2024), 109–31.

As mentioned, we do not find either the payment of the cottimo or contribution to avanias justified in the sea protests, or even mentioned. All of these cases had a consolato and testimoniale, but these focused on other tribulations suffered on the voyage such as broken masts and jettisons. In the aforementioned case of the Cavallo Marino coming from Alexandretta in 1670, for example, the testimoniale relates various tribulations involving a series of storms, yet the narrative accounts completely fail to mention the two large payments levied by the French natio in Aleppo for the cottimo and Avania, even though these constituted the bulk of the GA. (Nor does it mention the payment of bribes to local officials which we find surreptitiously entered only in the master’s list of expenses.)8 ASP, CM, AC, 319-20 (18 March 1669), Calculation.

The reason for this is probably connected to the fact that expenses like avanias and cottimi sit awkwardly somewhere between ordinary and extraordinary expenses, and between sacrifices for the benefit of the ship and obligatory levies. This made it difficult to square these costs with existing GA norms. Expenses that were clearly extraordinary and directly pertained to ‘liberating’ the ship were not problematic: bribes, for example (usually described as ‘gifts’), were often required to get a ship moving again after an accident or sequestration in port, and these are sometimes mentioned in the sea protest, albeit not consistently.9 ASP, CM, AC, 322-16 (9 November 1670), Calculation. But apart from their clearly extraordinary nature, bribes were often directly associated with a casus fortuitus (putting into a port after a storm or corsair attack, for example). The cottimo on the other hand had originally been an una tantum: seven years later, could it still be considered as such? The avania was an irregular one in every sense of the word, at least from the European point of view, but it was also a sort of tax, especially given that it was levied by the French natio and was not actually directed at the ship in question. In a way, payments to avoid an avania fitted better into the logic of Average, though here too the risk to the parties interested in the voyage was distant and indirect.10 On the possible connection between GA and the presentation of avanias see Dyble, ‘The threat of the “avania”’, p. 123. These were thus verging towards being ordinary costs, but from a pratical point of view it was difficult to deal with these expenses in advance. In the case of avanias, it was presumably not always certain that they would be levied; even if the cottimo itself could be predicted, it was not known what payment the ship would incur, since the natio apparently carried out an ad hoc assessment based on what other similar ships had been charged. It was thus impractical in many cases to deal with such costs at the outset via clauses in the freight contract.

If Giuseppe Casaregi’s ‘not-much-observed’ distinction between Gross Average and Common (or Small) Average had been in force, avanias and cottimi taxes would probably would have been regarded as Common Average (even if, as has been noted, there does not seem to have been clear agreement on whether this was for ordinary or extraordinary expenses.) We might also remember that the Llibre del Consolat had actually assigned extraordinary expenses incurred during stops to the merchants, not to all parties interested in the voyage. Yet in the seventeenth century, all instances of common contribution had been subsumed under the rubric of General Average with the same modality of contribution in all cases. Given this, they had to fall under GA, as it was unthinkable from a practical point of view to let such costs lie where they fell. Masters and ship-owners did not want to be left footing huge bills. No one wanted to see ships stuck in sequestration because masters and ship-owners refused to pay those bills. If semi-regular eventualities like these could not always be dealt with in the freight contract before the voyage, GA allowed them to be dealt with in a predictable manner. This is almost certainly why the narrow definition of GA called for by Casaregi was never adopted in our period, and we never find an instance of merchants objecting to the principle of these expenses. By helping masters and merchants to share the burden of the cottimo, moreover, the court of the Consoli helped to defend Livorno against the protectionist measures favouring Marseille.11 Dyble, ‘Divide and rule’, p. 365.

The use of GA in these cases thus created little concern, certainly for masters and merchants. But the sea protests were drawn up with the help of legally trained professionals. Thanks to their knowledge of the normative material, they were aware that such expenses were dubious, or even, in the case with the French cottimo, verging on the indefensible from a strictly theoretical point of view. Since the use of common contribution was apparently accepted by all parties, the court officials would certainly not have objected, especially because GA cases brought in fees for the court and its employees. Rather than explicitly justifying these expenses according to the principles of GA, however – tricky, perhaps, but not impossible given that Tuscan GA allowed expenses aimed at the ‘universal benefit’ – they decided not to mention them at all. The sea protest is in itself then an expression of the way that the GA of normative theory diverged from practice.

The archival documents reveal other ways in which GA practice diverged from theory and indeed give some limited credence to the mercantile refrain that the ius commune lawyers should be kept far away from commercial cases on the grounds of being ‘overcurious and precise … [more regarding] certain subtleties than the trueth of the fact or matter’, as Gerard Malynes alleged.12 See above, p. 42. One conspicuous example of this is the question of whether a GA can be carried out after a ship has been declared unseaworthy. This was an important issue given that shipmasters that wished to declare GA had probably suffered a great deal of damage. Carlo Targa, the contemporary Genoese maritime lawyer, insists that a ship which is no longer seaworthy cannot be the beneficiary of an Average: ‘From that moment it is no longer within the bounds of Average but comes to be total loss. The reason proceeds from the rule that the doctors adduce, that everything takes its being and name from that of which it chiefly participates’.13 Targa, Ponderationi, pp. 142–3. In other words, if a ship (a ‘nave’) were declared unseaworthy (‘innavigabile’) it could no longer be considered a ship and should therefore be considered lost.

In actual fact, it was not necessary to write off an expensive investment simply because it was temporarily unable to participate in that activity from which it took its name and being. This is neatly illustrated by a remarkable case from the archive. In 1670, the Livornese shipmaster, Giuseppe Reali, had just left port with La Madonna del Rosario when the ship (for reasons unstated in the sea protests) began to take on water.14 ASP, CM, AC, 321-14 (23 July 1670). The ship hurried back to the pier where it was possible to unload a small proportion of the valuable textiles on board before the vessel sank. Even if we do not accept the sophistry of the doctors, this might at first sight appear a good example of a total loss. In actual fact, given that the vessel went down in port, the ship and some of the remaining merchandise could be recovered (at considerable expense) by divers. The master claimed to have decided to save the valuable merchandise rather than his less valuable ship: this seems to have been his justification for putting the costs of the refloating into GA.15 ASP, CM, AC, 321-14 (23 July 1670), Testimoniali. We will have reason to revisit this case further on, as it perhaps unsurprisingly was objected to by the merchants, and the amount requested by the master was in the end substantially reduced. The master was, however, allowed to recoup some of his costs, thus implicitly recognising the right to request GA in such circumstances. Unseaworthiness, even to the point that the ship rested on the seabed, was no barrier to a GA.

In some cases we even find a GA declared after an official, legally documented declaration of unseaworthiness; indeed, declaring unseaworthiness was the prerequisite for the GA because the ship was originally not meant to terminate its journey at Livorno. Declaring a GA in an unscheduled destination where there were no receivers was highly suspect, but claiming that the ship was unable to go on apparently legitimised such an irregularity. The four 1670 cases which involved a declaration of unseaworthiness all show suspicious similarities: all four were grain ships whose destination was Genoa, and in each of these cases the ship was given permission to terminate its journey, liquidate the cargo, and perform a GA.16 ASP, CM, AC, 319-25 (18 April 1670); ASP, CM, AC, 320-2 (9 May 1670); ASP, CM, AC, 321-25 (25 August 1670). Since there was a market for grain everywhere, and since political authorities were presumably keen to gain greater access to this essential and politically sensitive commodity, it may not have been difficult to obtain the necessary declaration.17 Fusaro, Political Economies of Empire, pp. 93–108. In any case, the ‘unseaworthiness’ was clearly no barrier to performing a GA: perhaps we can designate this one of the effects (and advantages) of summary procedure, which allowed judges to procede according to ‘the nature of things’.18 p. 44.

It was not only over ‘subtleties’ that practice and norms disagreed. There is even indication that merchants themselves understood the principle of the GA procedure in a wholly different light. This is an important consideration for those commentators who see GA as a fundamentally universal procedure because the principle was common everywhere even if the mechanisms adopted in the procedures were not. It is particularly relevant for those who argue that GA attests the existence of a lex mercatoria or a common mercantile ‘culture’ in the Mediterranean.19 Tetley, ‘The general maritime law’, p. 128; Wickham, The Donkey and the Boat, p. 648. An alternative conception of the principle emerges from a case we have already had cause to examine several times, a GA declared by the master of the Sante Anime del Purgatorio on his ship’s return from Tétouan in 1700.20 ASP, CM, AC, 418-11 (14 May 1700). This case is also analysed in Jake Dyble, ‘General average, human jettison, and the status of slaves in early modern Europe’, The Historical Journal 65 (2022), 1197–220, at pp. 1209–11. As has been noted, this case was originally proceeding through arbitration rather than in front of the court. There was a particular sticking point in the process, however, which necessitated bringing the case before the Consoli: whether cargo owned by the master, supposedly stored above deck, should contribute to GA. The master claimed that his own goods should not contribute, because ‘these were loaded under the bridge and not in the hold, for which fact according to Chapter 183 of the Llibre del Consolat de Mar they are excluded’.21 ASP, CM, AC, 418-11 (14 May 1700), Master’s Second Set of Reasons. When we examine the Llibre, however, it does not in fact state that cargo stored above deck does not contribute to GA. What it says is that cargo loaded above deck without the permission of the merchants cannot be indemnified and that the master will have to bear the whole cost of any losses.22 Casaregi, Consolato del mare, p. 51. In other words, it suggests that the loss or damage of this cargo could not be defrayed by common contribution; it does not suggest that the same cargo should be excluded from contribution when someone else’s property has been lost or damaged. This is rather something that the master felt was implicit in the stipulation.

Even more surprisingly, this logic appears to have been accepted by the merchants, at least initially. The dispute revolved not around the principle of excluding the cargo on the bridge but around the truthfulness of the master’s account. The merchants claimed that the master was simply lying about where he had stored his goods, as the amount of cargo he had on board would not have fitted there.23 ASP, CM, AC, 418-11 (14 May 1700), Master’s Second Set of Reasons. The master, in turn, produced an affidavit signed by the customs officials that backed up his statement about the loading of the goods.24 ASP, CM, AC, 418-11 (14 May 1700), Affidavit of Customs Officials. It was only after both sides had already submitted two sets of documents on the matter that questions over the principle of exclusion were raised. In their third and final list of objections submitted to the court, the merchants argued that things stored above deck should contribute after all, because ‘by means of the jettison they had been saved’.25 ASP, CM, AC, 418-11 (14 May 1700), Affidavit of Iuda Crespino. They thus switched to the logic of GA with which we are familiar, outlined in the Lex Rhodia: even if things loaded on deck could not have been indemnified through GA, they nevertheless should contribute because they benefitted from a jettison. In their final judgement, the Consoli sided with the merchants and declared that the cargo stored above deck should contribute, but it is clear that the merchants themselves were not familiar with the logic of the Lex Rhodia until very late on in the process.26 ASP, CM, AC, 418-11 (14 May 1700), Judgement. It is possible that they may have sought new legal counsel in creating this last submission.

What is clear is that all concerned on both sides were initially convinced that Chapter 183 of the Llibre del Consolat implied that cargo stored out of the hold was excluded from GA entirely. Both the master and the merchants thus held that, if their property did not to receive the protection of GA in certain circumstances, then that same cargo should not have to contribute to the protection of other cargo. They were therefore viewing GA not as a one-time obligation rooted in a benefit received at someone else’s expense but were rather viewing it as a form of mutual insurance that followed a logic of reciprocity: I will help defray your losses today in the knowledge that you would be compelled to do the same for me if the positions were reversed. It is likely this same logic accounts for the fact that only one cargo of slaves was found in the Tuscan GA cases, despite the fact that Livorno hosted the most important slave market in the Christian Mediterranean after Malta.27 Kaiser and Calafat, ‘The economy of ransoming’, p. 113. Both the Lex Rhodia and the writings of contemporary European jurists legislated against the jettison of slaves, and ships in the Mediterranean did not in any case have to deal with the practical challenges that occasioned human jettisons in the Atlantic slave trade: provisioning, rebellion, and rampant disease, the results of oceanic distances, the industrial scale of the slavery, and the more desperate and irreversible position of the enslaved. The one time we do find slaves included (as contributing property rather than sacrificed property) this was the result of special circumstances and was the object of a successful legal challenge.28 The subject of slaves and GA is discussed in depth in Dyble, ‘General average, human jettison’.

The GA principle was thus not as widely shared by practitioners as has sometimes been suggested. Whilst we should refrain from claiming on this basis that there was a monolithic ‘merchant’ conception of GA in opposition to the juridical one, there were nonetheless clearly different ideas in play about what made GA ‘fair’. This evidence should also alert us to the dangers of associating a communitarian mindset or attitude with the use of GA or contrasting this with a more individualistic economic modernity. The quite transactional GA principle implicitly adopted by the merchants and master in the case of the Sante Anime del Purgatorio does not, after all, suggest a particularly collectivist attitude towards the maritime venture.