Evidence for English GA Procedures
In reality, however, the evidence that we have available suggests that the supposed gulf between English and Tuscan GA laws was not as large as had been made out. Finch’s claims about the English procedures do not add up, and the idea that English law capped GAs at 1.5 per cent is implausible. If this really were the case, it would mean that those who had made a sacrifice to save the ship that was of greater value than 1.5 per cent would have to bear any loss in excess of this alone; this would have been a radical practice, unparalleled anywhere else in Europe, and yet it leaves absolutely no trace in contemporary GA jurisprudence. Charles Molloy, the Anglo-Irish lawyer who would publish a major and influential work on maritime law just a few years later in 1676, makes no mention of any such restriction, and the principles he outlines are broadly in line with those adopted elsewhere: that ‘common calamity’ should be made good by ‘common contribution’, with no reference to any arbitrary limit imposed by statute or ordinance.
1 Molloy, De iure maritimo, p. 280. In fact, the ‘laws of England’ concerning GA, far from contradicting those in Tuscany, hardly seem to have existed at all.
2 This would not be first time that Englishmen in the Mediterranean had tried to gain commercial advantage through reference to ‘English laws’ that turned out not to exist – at least not as ‘laws’ in the strict sense of the term. See Maria Fusaro, ‘The invasion of northern litigants’, p. 32. English GA procedures were the least definite in Europe, relying almost exclusively on private agreement. As Nicolas Magens, a German London-based merchant and author of
An Essay on Insurances (1755), remarked:
As there are in London no Commissioners particularly appointed for the settling of Affairs relating to Insurances and Averages as at Amsterdam, nor a Person to adjust the same upon Oath as at Hamburgh [sic], neither are there any certain Laws relating to Assurances and Averages, therefore it is frequently submitted to private Opinions, especially when there is but a small Difference, whether it be calculated either in one Way or the other, and Things will now and then be misunderstood.
3 Nicolas Magens, An Essay on Insurances (London: J. Haberkorn, 1755), p. 171. Digging down into Finch’s claims further, we find that the case of the
Alice and Francis, far from being an ‘exorbitancy, contrary to the laws of England’, would almost certainly have been substantially accepted had the claim been made in London. The reference to a cap of 1.5 per cent on GAs, rather than an absolute limit on contribution rate, was probably referring in a confused or misleading way to a much more specific provision in a recent Act of Parliament: the ‘Act to prevent the Delivery up of Merchant Shipps, and for the Increase of good and serviceable Shipping’, first promulgated in 1664, and then renewed with several amendments in 1671.
4 ‘Charles II, 1664: An Act to prevent the delivering up of Merchant Ships’, in John Raithby (ed.), Statutes of the Realm: Volume 5, 1628–80 (1819), pp. 521–2; ‘Charles II, 1670 & 1671: An Act to prevent the Delivery up of Merchants Shipps, and for the Increase of good and serviceable Shipping’, pp. 720–2. Addobbati and Dyble, ‘One hundred barrels of gunpowder’, p. 834. It had come to the attention of Parliament that English seamen, rather than heroically defending their vessels against all comers, understandably considered discretion to be the better part of valour.
5 Addobbati and Dyble, ‘One hundred barrels of gunpowder’, p. 833. Rather than risk life and limb for someone else’s cargo, the mariners were choosing to make over a portion of the goods freely in order to continue their journey in peace, a situation which certainly suited their would-be assailants who thus received plunder without firing a shot. Such conduct was even encouraged by some norms on GA. The
Lex Rhodia rules, as we have seen, allowed ransoms paid to pirates and enemies to be shared out by means of GA.
6 D.14.2.2.3; Watson, Digest, vol. 2, pp. 419–20. The Act now made it a legal duty of seamen to offer resistance to such enemies. Any master who was found to have made a deal with the aggressor would be responsible for all damage and imprisoned for six months. Crew would forfeit all of their wages and any goods they had in the ship. By way of compensation for these exertions, the Act established that on the safe return of the ship, the merchants might present a gift to the crew of an amount that they ‘shall judge reasonable’, and in no case ‘exceeding the value of two per cent of the Shipp and Goods soe defended according to the first Cost of the Goods to be made appeare by the Envoice’.
7 ‘An Act to prevent the delivery up of Merchants Shipps’, Clause IX, p. 722. This would then be distributed ‘amongst the Captain, Master, Officers, and Seamen of the said Ship, or Widows and Children of the Slain’. Since the master of the
Alice and Francis had been awarded a similar ‘gift’ in recognition of their engagement with the enemy, it seems likely that this was the statute Finch was referring to. The reference to 1.5 per cent rather than 2 per cent may be down to a miscommunication, a simple desire to place extra pressure on the Grand Duchy, or perhaps Finch’s own weak grasp of the particulars of GA (he was a medic rather than a merchant by training).
8 Peter Lely, ‘Finch, Sir John (1626–1682)’, Oxford Dictionary of National Biography (2004), <www.oxforddnb.com/view/10.1093/ref:odnb/9780198614128.001.0001/odnb> [18 August 2021].The Act had created a slim procedural difference between the two jurisdictions. In Tuscany, compensation for the crew after a combat was awarded, along with the rest of the GA, by an official body: the
Consoli. The English act removed the ‘gift’ from the remit of GA and transformed it into an optional bonus to be given entirely at the discretion of the merchants, albeit working on the same principle of contribution. Rather than requiring the merchants to award these funds, the act had placed a statutory limit on their generosity: an unnecessary worry, it transpired, since in 1698–9 Parliament was forced to retract these discretionary powers from merchants, and mandate the appointment of ‘four or more good and substantiall Merchants and such as are no Adventurers or Owners of the Shipp or Goods soe defended and have no Manner of Interest therein’ to decide on fair compensation for the mariners.
9 ‘William III, 1698–9: An Act for the more effectual suppression of piracy’, in John Raithby (ed.), Statutes of the Realm: Volume 7, 1695–1701 (1819), p. 593. Yet despite this procedural difference, the size of the gift decided upon by the
Consoli in this case fell within the terms of the Act and did not even come close to exceeding the statutory limit of two per cent; it was certainly no ‘exorbitancy’. The money paid to Stephen Dring for his broken arm and the compensation paid on account of the combat together came to 385 pieces of eight, a mere 0.44 per cent of the total value of the cargo and ship.
10 ASP, CM, AC, 321-30, Calculation. Nor was compensation for the crew unusual in a European context. Phillip II’s 1563 maritime ordinances for the Low Countries, for example, made provision for a payment of damages to the wounded and any funeral costs of seamen killed in a combat to be included in GA.
11 Ordonnance of Phillip II of 1563, Title IV, Article 2, quoted in Pardessus, Collection de lois maritimes, vol. 4, p. 79. The French
Ordonnance de la Marine (1681) would establish that the cost of treatment of those wounded during a combat should likewise enter into GA.
12 René-Josué Valin, Nouveau commentaire sur l’ordonnance de la marine, 2 vols (La Rochelle: Legier & Mesnier, 1760), vol. 2, p. 165. The master’s decision to fight, and the subsequent award by the
Consoli, were entirely in line with the spirit of the law, as expressed by the 1664 English Act of Parliament and by practice elsewhere in Europe.
Hypothetically, the Act had subtle and far-reaching implications because it arguably transformed the decision to enter into combat from a voluntary act (thus eligible for GA) into a compulsory duty: in other words, from an extraordinary into an ordinary expense. In reality, however, these implications had not been apprehended in contemporary English practice, a thing made clear by a nineteenth-century case which turned on precisely this issue. The case of Taylor vs Curtis came before the Common Bench in 1816 after a first hearing at the Guildhall, and concerned combat expenses put into GA.
13 W. Pyle Taunton (ed.), Reports of Cases Argued and Determined in the Court of Common Pleas and Other Courts (Boston: Wells & Lilly, 1823), vol. 6, pp. 608–25. Magens’s view that there were no specific laws concerning Averages in England was clearly borne out by the progress of the trial, with both English legal opinion and eighteenth-century continental authorities providing contrary opinions, and little in the way of precedent found to resolve the matter.
14 While most of the commentators had argued that expenses incurred in combat with the enemy were eligible, the extremely influential Balthazar-Marie Émérigon had recently argued that they were not, a fact of which the counsel for the defence made much. See Taunton, Reports of Cases, pp. 615–16; Park, Marine Insurances, p. 140; Valin, Nouveau commentaire (1760), vol. 2, p. 153; Balthazard-Marie Émérigon, Traité des assurances et des contrats à la grosse, 2 vols (Marseille: Jean Mossy, 1783), vol. 1, p. 627. Eventually, the judge ruled against the master and ship-owners – a decision made partly on the basis of the ‘Act to prevent the Delivery up of Merchant Shipps’, which was taken to place combat in the master’s ‘proper line of duty’.
15 Taunton, Reports of Cases, p. 616. The judgement was not based on merchant practice, which seems instead to have accepted combat expenses. It had been argued by the attorneys for the ship-owners that ‘it being habitual with merchants to treat losses of this description as General Averages, it may be fairly inferred that the law is such’.
16 Ibid. Even the lawyers for the merchants admitted that ‘a wise policy might frequently have induced individuals to contribute to similar losses’.
17 Taunton, Reports of Cases, p. 611. Given the largely private nature of GA resolution in England, it is perhaps unsurprising there was little certainty on the point in terms of legal precedents. What is clear is that even in English practice it was common to treat combat expenses as a GA sacrifice. This further suggests that, had the GA of the
Alice and Francis been adjusted in England, the outcome would have been the same, or, at the very least, it would not have attracted comment.
If English and Tuscan practices regarding combat expenses were substantially the same, what was the point of the complaint? The key to making sense of Finch’s accusations is to contextualise it within a wider diplomatic game. Bad feelings between the English
natio in Livorno and their Tuscan hosts had intensified for several years. English merchants had become increasingly frustrated by the restrictions and fees imposed on them by port authorities, especially the strict quarantine of their goods a full four years after the Great Plague.
18 Addobbati and Fusaro, ‘The grand tour of mercantilism’, p. 706. The Tuscans for their part had suffered a number of humiliating slights at English hands. Recent judgements given by Tuscan tribunals had been challenged in London, casting aspersions on the Grand Duke’s justice. Royal Navy ships had begun refusing to salute the port on entry from 1665, and ordinary English shipmasters soon followed suit – an unprecedented snub.
19 Carlo Cipolla, Il burocrate e il marinaio, p. 109. A visit by Lord Fauconberg, the extraordinary ambassador of Charles II, in the early summer of 1670 could have been an opportunity to pour oil on troubled waters, but the visit succeeded in achieving the exact opposite.
20 Addobbati and Fusaro, ‘The grand tour of mercantilism’, p. 700. The ambassador arrived at an inauspicious moment, just days after Grand Duke Ferdinando II had died. When Fauconberg finally was able to meet the young Cosimo III, the ambassador concentrated his energies not on commercial questions, but rather pressed for English freedom of worship, a topic guaranteed to offend and impossible for the Grand Duke to grant even had he wanted to. The English party managed to add several
faux pas to an already long list, holding a public Protestant wedding in Livorno, and celebrating the Stuart restoration with fireworks while the rest of the Florence was still in mourning. The task of taking forward negotiations in these difficult circumstances was left in the hands of John Finch.
This would render a difficult brief even more so: Finch had been charged with bringing disputes ‘between English Merchants & Mariners’ under the jurisdiction of the English consuls.
21 John Finch to Lord Arlington (10/20 January 1670/1), TNA, State Papers Foreign, Tuscany, 1582–1780, SP 98, vol. 12, part 1, f. 169v. This was an issue of particular interest to English merchants, since the rules regarding wages applied in England and those in the Mediterranean varied considerably, with those in the Mediterranean in clear favour of the mariners. The
Llibre del Consolat de Mar gave the seaman a degree of wage protection and a say in the modality of payment, and Englishmen serving in the Mediterranean were quick to seize upon these advantages.
22 See Addobbati, ‘Until the very last nail’, p. 826. Wage disputes were becoming increasingly common fixtures of Mediterranean maritime courts in the second half of the seventeenth century.
23 Addobbati, ‘Until the very last nail’, p. 50; Fusaro, ‘The invasion of northern litigants’, p. 37. Only a few months before Finch was officially charged with the task, the English consul at Livorno, Thomas Clutterbuck, had raised the matter of English mariners with the governor, Antonio Serristori, claiming that English seamen should not be allowed to seek employment with foreign masters. Serristori, under strict orders from Florence that the demand ‘should in no way be upheld’, had responded that all seamen who were not in Naval service were ‘free in the context of the port to make their fortunes however they see fit’. ‘I hope that this topic’, remarked Serristori acerbically, ‘will not be brought up again’.
24 ASF, Serristori, 438, Serristori to Bardi (1 August 1670). This hope was in vain. Finch had his first meeting with the Grand Duke on this and other commercial questions on 2 November 1670.
25 ASF, MM, 358-17, John Finch to Cosimo III (4 February 1671). The memorandum concerning GA was then presented as an addendum to these ongoing discussions.
26 ASF, MM, 358-17, John Finch to Cosimo III (4 February 1671). It is this context that allows us to understand the true intent behind Finch’s complaint. The letter drew attention to a procedure, Average, which was (supposedly) governed by two different sets of laws in the two countries. This was taken to benefit those employed in the transportation sector (‘the pretensions of the masters’), to the detriment of merchants (‘those who employ them’). The proposed solution was that the English enjoy the ‘benefits of His Majesty’s laws’ on the subject, instead of being subjected to those ‘extremely long’ procedures in the Tuscan tribunals. The parallels with the dispute over wages are obvious. Having thus far enjoyed no success with the direct approach, it seems that Finch was trying a new angle of attack on the problem of wages. GA was the thin edge of the wedge. If the Tuscans could be embarrassed into conceding jurisdiction over GA, this could provide a useful precedent. Arguing by analogy, the English might then begin to once more angle for more general consular jurisdiction. At the very least, concessions over Average would give John Finch something to show for his efforts.
GA could thus be seen as a Trojan horse.
27 Addobbati and Dyble, ‘One hundred barrels of gunpowder’, p. 825. Any remaining doubt over Finch’s true object is dispelled by his reference to ‘articles of commerce’ signed between the King of England and the King of Spain. Finch explained to the Grand Duke that the concession of ‘the benefit of His [English] Majesty’s laws’ to English subjects was so far from prejudicing Cosimo’s sovereignty that even the King of Spain and ‘other kings and potentates’ had agreed to such requests.
28 ASF, MM, 358-17, John Finch to Cosimo III (4 February 1671). What exactly Finch had in mind by ‘the benefit of His Majesty’s laws’ is suggested by his specific passing reference to ‘article 19’ of a treaty between England and Spain. The reference is, in fact, to the Anglo-Spanish treaty of 1667, an unexpected and highly advantageous commercial treaty which the Spanish hastily signed as part of wider diplomatic efforts to achieve peace with Portugal after the opening of hostilities with France.
29 Jean McLachlan, ‘Documents illustrating Anglo-Spanish trade between the commercial treaty of 1667 and the commercial treaty and the asiento contract of 1713’, The Cambridge Historical Journal 4 (1934), 299–311; see also Zaugg, Stranieri di antico regime, pp. 59–71. When we examine the document, we find that article 19 was not in the least concerned with maritime Averages, but rather established, on a reciprocal basis, consular jurisdiction over disputes between ‘captains, officers or mariners … for their wages or salaries, or under any other pretence’.
30 ‘Treaty of Peace and Friendship between Great Britain and Spain. Signed at Madrid 13/23 May, 1667’, in Edward Hertslet (ed.), Treatises and Tariffs regulating the Trade between Great Britain and Foreign Nations: Part V (London: Butterworths, 1878), 25–43.