Conclusions
By comparing the normative material analysed in Chapter 2 with the GA procedures from the archive, it becomes clear that the latter enjoyed a significant autonomy from the former. While the normative material
did have an influence, most notably the way that jettisons were presented in GA documentation, this influence was only partial and, for the most part, formal. This was nowhere more true than with regards to the scope of GA, i.e., the different costs that it could repartition. The overall picture that emerges is of an operational GA which was very capacious, repartitioning a large number of extraordinary costs between ship and merchant interests, as well as many ordinary ones, thanks in part to the considerable structural and procedural advantages enjoyed by the shipmaster. GA was used in a wide range of scenarios, not only when the alternative to action was the physical loss of the vessel, but also when any outside circumstances had impeded the ship’s progress. The ‘unit’ of the GA was not the physical ship and cargo, as it was in the
Lex Rhodia,
but was instead the voyage or venture. This finding offers something of a corrective to those who have argued that mercantile justice was unfolding firmly inside the tent of the
ius commune.
1 Guido Rossi, Insurance in Elizabethan England: The London Code (Cambridge: Cambridge University Press, 2017), pp. 6–8; Piergiovanni, ‘Genoese Civil Rota’, p. 28. In this sense, GA can probably be likened to another risk-management instrument: insurance. In neither case did learned jurists succeed in successfully theorising the merchant practice and reconciling it to the categories of the
ius commune.
2 Guido Rossi, ‘Civilians and insurance: approximations of reality to the law’, The Legal History Review 83 (2015), 323–64. The
Consoli generally took the path of least resistance in their administration of GA. Their attitude was characterised by a certain passivity in reaching judgements and a willingness to countenance irregularities, especially over the way that damages were assessed. This was not because the
Consoli were the work-shy and inexpert buffoons of Andrea Moniglia’s musical comedies. The outward form of the procedure may have been adversarial (the cases are introduced as ‘shipmaster X
versus receiving merchants’), and the adjustment of a GA might even have involved contestation and conflict, with the merchants formally challenging the master’s narrative with the production of interrogatories and exceptions, but the prime role of the
Consoli was one of certification, simply recognising the fact of the GA in order that the obligation to contribute might be recognised in jurisdictions where absent interested parties resided. This was often administration in the form of justice, a concept foreign to our own world view, accustomed as we are to a clear separation of powers, and administrative machinery largely divorced from that of the judiciary.
3 Mannori and Sordi, Storia del diritto amministrativo, pp. 52–6. The
Consoli facilitated this process, favouring the master by default unless merchant resistance was particularly concerted, and it appears that court officials helped shape the master’s testimony into a legally acceptable form. They therefore smoothed the way to GA declarations. The strange thing, in a way, is that we find any GA’s that were rejected, and we are led to wonder what the master of the
Madonna del Carmine, whose mast broken by the wind did not qualify for GA, had done to forfeit the court’s assistance.
Finally, we have seen how merchants did not necessarily share jurists’ views on GA, even at the level of broad principle. In a certain sense, it can also be said that practice was ahead of the jurists: a dichotomous GA/PA division had been established while jurists were trying to theorise older variants and procedures into the mix (the pre-jettison consultation, germinamento, Common Average). With that said, the various ways that cargo and damages were valued provides evidence that merchants were not availing themselves of a customary lex mercatoria, even on a procedural level. It should also be noted that the laissez faire approach of the court was not indiscriminate: some foreign groups were accorded more latitude than others, demonstrating that GA formed part of Livorno’s wider political economy. This will be explored further in the next chapter.