Merchant Representation and Objection

When we arrive at 1670, however, there is a marked drop off in the number of documents being produced on behalf of the merchants. A full 14 of the 18 GA cases in that year do not have any exceptions, interrogatories, or capitoli at all. Of the four which include exceptions, only one includes interrogatories, and one other capitoli.6 ASP, CM, AC, 319-25 (18 April 1670); ASP, CM, AC, 320-7 (28 May 1670); ASP, CM, AC, 321-14 (23 July 1670); ASP, CM, AC, 322-30 (15 December 1670). The situation is similar in 1700. Of the 12 cases adjudicated in that year, nine do not include any documents produced in defence of the merchants. One case includes just interrogatories, one includes just exceptions, and only a single case includes both.7 ASP, CM, AC, 417-16 (9 February 1700); ASP, CM, AC, 418-20 (1 July 1700); ASP, CM, AC, 419-27 (11 September 1700). The capitoli, appearing just once in the 1670 data set, have disappeared entirely. The impression from the numbers alone is that, from being well defended at the beginning of the century, procedures moved further and further in favour of the masters as the century progressed, with a case from the first half of the century showing markedly more representation of ‘merchant interests’ than the second half. The merchants of 1785 who apparently received a single sheet of exceptions would, in fact, appear to be doing considerably better than their counterparts of 1700 who frequently received no defence at all.

Examining the cases themselves, however, it seems that this change is more accurately interpreted as streamlining rather than a progressive diminution of representation: it is not just the fact of being represented that counts but the quality of the representation on offer. We must ask how penetrating the exceptions and interrogations were, an investigation which necessarily involved a degree of subjective judgement, as well as examine the extent to which merchants were actually involved and interested in the cases themselves. Closer scrutiny of these documents shows that, in the first half of the century, the merchants’ attorney produced documents for his party, regardless of whether there was an obvious case against the master; in the second half of the century these were only produced when the merchants had concrete cause for grievance. Whilst the procedures were thus less rigorous in one sense, the ‘decline’ was somewhat ephemeral. Given the difficulty of disproving a GA case without inside information, very little had been lost in practice from the merchants’ point of view.

The first point to note here is that mounting a defence against a GA request by means of interrogatories was a very tricky exercise. The witnesses were seamen who worked with the master, and the master was able to send those seamen for examination who were most amenable to his cause. With the testimoniale arranged in a manner structurally favourable to the master, the best that the merchants’ attorney could hope for was to try to trip up the witnesses and induce them to produce some inconsistency in the account. Given these limitations, the interrogatories from the first half of the century were probably about as penetrating as they could have been, mostly asking about the ship’s condition, or for specific details about the voyage and accident in the hope that the witnesses might expose the case as a fiction. Shipmasters were legally held to a very high standard of care under culpa levissima; if it could be intimated that anything less than the highest standard of care had been taken, and that this in turn could have been behind the ship’s difficulties, this would have been a good line of attack.8 Rossi, ‘The liability of the shipmaster’, pp. 11–15. A typical example of a GA interrogatory asked when the ship was last careened and how much was spent on it, whether the portholes had been properly secured, and whether they had made the required consultation.9 ASP, CM, AC, 25-8 (30 May 1600), Interrogatories. Though this made a certain degree of sense, one wonders whether the Pisan attorneys or Consoli had the expertise to make anything of these responses. The Consoli ideally had some commercial knowledge, but the idea that they had substantial seafaring knowledge is highly doubtful: who would have known that a master had underspent on the careening of his boat? Other questions were simply designed to expose inconsistencies in the testimony, asking the exact time of the jettison, how the jettison was made (by whom, from which part of the ship), and the direction of the wind at the time of the accident.10 Ibid. This was never achieved in our cases, though witnesses did occasionally claim to be unable to remember the details.11 Ibid.

Exceptions tended to be extremely generic and even irrelevant in the majority of cases. Most of the exceptions made in the first half of the century raise three or four points: that the libel was vague, obscure, and groundless; that the master was not legally competent to make the demand for GA; and that the things related by the master were not true.12 ASP, CM, AC, 196-37 (2 January 1640). Most of the exceptions from the first half of the century are comprised of only these three objections, and these were sometimes produced on the day of the citation to the judgement itself.13 See ASP, CM, AC, 27-26 (9 September 1600). All this suggests that the majority of the exceptions were likewise for show and had no real bearing on the case. Only occasionally does a further, specific exception appear, and even in these cases, defence generally rested on casting aspersions on the quality of the equipment. An example is provided by the case of the Francesca, an English ship from London and ‘Barbary’ with cargo for Thomas Mun.14 ASP, CM, AC, 25-28 (8 April 1600). The ship had supposedly been forced to cut the mast while sheltering at the beach of ‘Portolando’.15 It has not been possible to identify this port. The details of the testimoniale are particularly vague. The ship was on its way from London to ‘Barbary’ and thence to Livorno. The ship left London sometime in September and sheltered at the beach of ‘Portolando’ on 3 and 4 October. So, it was almost certainly outside of the Mediterranean, a thing also suggested by the fact that it was caught in another storm after loading in Barbary around the Cabo de Gatt of the southern coast of Spain. The final exception, which ‘contradict[ed] more than anything’ the master’s account, was that

Rather than the quality of representation declining then, GA cases – at least the more straightforward ones – appear to have become leaner over the course of the century, with merchant objections being raised when there was felt to be particular need. Pierallini’s report suggests the way that court officials and attorneys were renumerated might explain this change. Expenses for a GA case were not paid for by one or other of the parties. They were instead added to the damages awarded and then partitioned over all players according to their interest, thus becoming part of the GA payment itself. Pierallini described a system in which the payment received by the key figures was linked to the value of the voyage once this had exceeded a certain base level. The 1561 reform of the court, on the other hand, include a price list which detailed what was due for each type of document that was submitted: 3 soldi 4 denari for ‘every exhibition of a libel [e.g. a sea protest], exceptions, capitoli … and list of supporting evidence’; 2 soldi for every summons; 3 soldi to be levied on every capitolo or interrogatory; and so on.24 ASF, Auditore poi Segretario delle Riformagioni, 116, §45. In short, a system where the expenses of the case were linked to the number of documents which were produced. This raises the possibility that in the earlier period attorneys were incentivised to submit more documents in order to receive higher fees, and that once this incentive was removed, extraneous documents vanished.

In actual fact, when we analyse the expenses levied over the period it appears that the system Pierallini describes did not exist in the seventeenth century and, what is more, that there is no causal link between changes to renumeration and the form taken by the procedures. Across the entire period, the expenses for the case remained fairly stable, and bear no relationship to the size of the case as Pierallini suggests. In most cases we have no indication of how the administrative fees of the case were levied but only have a single total figure for administrative expenses in the calculation. However, we can be certain that the system described by Pierallini was not in existence in 1600, because two of the cases include a full breakdown of the fees paid to various court officials.25 ASP, CM, AC, 25-28 (8 April 1600), Calculation; ASP, CM, AC, 27-30 (31 November 1600), Calculation. Why the full breakdown should have been provided in these cases is unclear. In one instance the breakdown corresponds to the lump sum for ‘expenses of the case’ in the calculation; in the other, the parties seem to have divided the expenses between themselves and, unconventionally, not entered them into the active mass.

While it is unclear on this basis how the various fees were determined, we can see that the various items of expenditure show no obvious relationship either to one another, to the damages awarded, or to the contributing elements. It certainly does not appear that the fees were dependent on the financial import of the case.

This is confirmed when we analyse data from the entire period, where we find no discernible relationship between the total value of the voyage and administrative expenses. The graphs in Figures I–III plot the expenses of the case as recorded in the calculation against the passive mass. Tuscan golden scudi were used in the first half of the century and pieces of eight in the second, though since the same currency applies to both expenses and passive mass they can be placed on the same graph. If there were a system in place like the one which Pierallini describes, we would expect to see a flat line in Figure 1 for expenses up to a certain point (since cases where the voyage was worth less than 5,000 pieces levied a flat fee), and then to see an ascending line demonstrating a positive correlation between expenses and passive mass. In fact, we see only an extremely weak correlation between the size of the case and expenses, even no correlation for some years, demonstrating that fees remained similar even for cases which were very large in financial terms. If a system like that described by Pierallini were in place, expenses for the largest case (a voyage worth over 138,000 pieces) ought to have been in the hundreds, but the figure was instead less than 50 pieces. The data is presented twice, firstly using an arithmetic scale and then using a logarithmic scale (Figure 2), which allows for better visibility of the far more common smaller cases. Though the automatically generated trend lines using the logarithmic scale do initially appear to demonstrate the curve that we would expect if Pierallini’s system were used, the lines bend upwards much later than they ought to, and the curve in fact disappears entirely when outliers are removed (Figure 3). While the rationale behind the levying of fees remains elusive – a great deal of data would have to be collected to overcome the limitations of the source material in this respect – we can at least say that the incentive structure Pierallini describes was not yet in place, and thus that the bureaucratic ‘streamlining’ was not the result of changes in the way that court functionaries were renumerated.

The most likely explanation for the gradual reduction in the documentation dedicated to merchant representation, therefore, is that this was a streamlining process brought about by the pressure being placed on the court by increased commercial litigation. As the century progressed, the Consoli, like all mercantile courts across Europe, faced an increasing number of litigants wanting to go before the court, and there was greater pressure to resolve disputes quickly.27 Andrea Addobbati, ‘Until the very last nail’, pp. 49–50; Fusaro, ‘Politics of justice/politics of trade’, p. 152. The change to merchant representation is therefore a superficial one. Merchants now needed to be active in their own defence, but this had always been the case, precisely because of the master’s control over the information presented to the court. The case of the Madonna del Rosario, in which Giuseppe Reali hosted a party on board his vessel, provides us with a good illustration of this fact. Though the original narrative was admittedly suspect, ultimately, the most pertinent evidence against the master’s case was local information, deliberately concealed in the original submission, of which a Pisan attorney could not be aware. A case which unfolded in 1640 demonstrates the point even more clearly.28 ASP, CM, AC, 198-17 (14 August 1640). The vessel Annuntiata Buona Ventura came from Algiers to Livorno carrying silver, feathers, and other merchandise, as well as a number of redeemed Christian captives. The ship endured two storms on its way back to Livorno and in both cases made a jettison of cargo. The ship arrived into Livorno on 29 March 1640, and the master made his consolato before the governor the next day and submitted his testimoniale e domanda to the Consoli on 3 April. A set of capitoli and interrogatories to be put to the witnesses were sent to the governor on 7 April: this examination took place on 12 April. At this point the case appeared clear cut. A month later, the master officially submitted a list of points in his favour (ragioni) in which he listed the testimoniale, the examination on the capitoli and interrogatories, and the generic and oft-invoked reference to ‘every law, statute, reform, capitolo, and every other relevant thing’.29 ASP, CM, AC, 198-17 (14 August 1640), Reasons. The judgement condemning the receivers to the payment of GA was issued on 2 June. At this point, we would expect to find the calculation as the final act in the case. Instead, on 19 July, without any explanation, a new testimoniale was submitted (though essentially identical to the first). A citation was issued for the merchants on 20 July, notifying them of this new testimoniale as well as a ‘renunciation of acts’ (renuntia d’atti).30 ASP, CM, AC, 198-17 (14 August 1640), Summons 20 July 1640. New capitoli and interrogatories were submitted, as well as a new piece of evidence: two Dutch passengers, seamen of long experience, who claimed that the ship had been overladen when it left Algiers.31 ASP, CM, AC, 198-17 (14 August 1640), Passenger Statement. It is unclear who officially issued the ‘renunciation of acts’, but the only logical inference is that talk about the state of the ship had spread to the merchants and that they had forced the case to be reopened. Again, it was information circulating in the port which enabled the judgement to be challenged: the new interrogatories largely reflect the new evidence that had come to light, with questions about the tonnage of the ship, whether it had been overladen, and whether they thought that a jettison would have been necessary had the ship carried less cargo.32 ASP, CM, AC, 198-17 (14 August 1640), Second Interrogatories, §§8, 18, 19. A successful challenge therefore generally depended on local fact finding, and, since the court was located in another city, this essentially depended on the merchants bestirring themselves, regardless of the quality of the legal defence provided in Pisa.

This example also alerts us to an important aspect of the way in which merchants interacted with GA cases. The timing of events is suggestive in this respect, particularly the long, unexplained periods in which nothing appears to be happening. The testimoniale was submitted on 3 April and the first interrogatories were sent back to Livorno just four days later: this does not seem much time to allow any evidence to emerge outside of the master’s account. This, in turn, suggests that the attorney drew them up on the basis of the testimoniale, without any communication with the merchants. Between the examination of witnesses on the capitoli and interrogatories (12 April), and the production of the master’s list of evidence (10 May), a whole month elapsed; more than a month elapsed between this and judgement (2 June); and a month and a half between this and the ‘renunciation of acts’ (19/20 July). The whole case took over three months, far longer, it should be noted, than the statutory 45 days. It seems unlikely that the rumours about the ship being overladen should have taken three months to reach the merchants. We do not have any positive evidence for why these long delays took place, but the most likely explanation is the merchants first confronted the master about the issue privately, and perhaps tried to pressure him into making a less onerous demand. It may be at this point that the master submitted his list of supporting points to the Consoli in an effort to force the delivery of a judgement. It was only when the informal talks failed that the merchants then decided to force an official re-examination of the case. While this is hardly conclusive evidence, it is our first hint of an important theme which we will see on other occasions: the use of semi-private forms of resolution, with out-of-court discussion and agreement having an important role but rarely making an impression on our evidence base. It is also notable that an ostensibly ‘final’ judgement by the Consoli was overturned in order to accommodate new evidence (though despite this seemingly important intervention by the merchants, the Consoli awarded the GA anyway).