A Multi-Centred Procedure meets a Port of Deposit
This alerts us to an important structural aspect of GA’s international dimension, especially in the context of the Mediterranean where there was a particularly high concentration of competing jurisdictions. The fact that the procedure could take place across a number of different ports and jurisdictions meant that redress was difficult, and players effectively had to accept an adjustment made elsewhere even if they believed it to be unjust.
1 Jake Dyble, ‘Lex mercatoria, private “order”, and commercial “confusion”: a view from seventeenth-century Livorno’, Quaderni Storici 56 (2022), 673–700, at p. 694. Once one set of merchants had made contributions it was almost impossible to undo the procedure, thanks to the number of parties involved and the distances which separated them. This is illustrated clearly in the case of
La Madonna di Monte Nero in 1671, a GA which became the subject of a petition to the Grand Duke.
2 ASP, CM, S, 985-333 (8 February 1671); Dyble ‘Lex mercatoria’, p. 687; Dyble, ‘General average, human jettison’, p. 1204. The original GA, made on account of a jettison, had been adjusted in Messina, but was later amended by the
Consoli in Pisa when a few other items were discovered missing while unloading in Livorno. Called upon to justify this, the
Consoli pointed out that they could hardly have done otherwise:
since many receivers in Messina will have come up with and paid the said Average and [this] being not really their interest but that of their correspondents, they will have passed on the debt of the payment … it would not be right if the receivers were held to account when they have acted in good faith and in execution of a judgement and calculation issed by that tribunal.
3 ASP, CM, S, 985-333 (8 February 1671), Information.If the multilateral nature of procedures could facilitate abuse, there was not much that could be done to alleviate this. For the system to work at all, decisions made in other centres had to be taken on trust. The petition against the Messinan GA does appear to have had a modicum of success, since the merchants succeeded in getting the case revised. Generally, however, the judgements of other centres were respected and enforced. In another 1670 case, a master asked that the
Consoli ratify a GA adjusted in Marseille because he was having trouble extracting payment from merchants in Livorno, a request the
Consoli were happy to oblige.
4 ASP, CM, AC, 322-16 (19 November 1670). Once again, if the system was to work at all, there had to be a level of acceptance. This must sometimes have caused frustration, where some parties might have been inclined to think – not unreasonably, perhaps – that they were paying the price for a lax attitude on the part of some other authority. But as Ascanio Baldasseroni remarked a century later, ‘the Genoese have complained many times on account of our [GA] regulations when their port was the final destination. But when the case is the other way around, they too have practised exactly the same system’.
5 Baldasseroni, Delle assicurazioni marittime, vol. 4, p. 228. The real problem for John Finch was that the English state’s desire to see GA come under the jurisdiction of the English consul was not in the interests of the English merchants themselves. They were already enjoying a considerable level of autonomy and did not wish to see a consul interfering in their activities. As the seventeenth century progressed, national consuls increasingly became representatives of their states rather than representatives of merchant communities.
6 Maria Fusaro, ‘The invasion of northern litigants’, pp. 38–40. In these circumstances, the fact that the Tuscans defended their own jurisdiction against that of national consuls was attractive to foreign merchants.
7 Dyble, ‘Divide and rule’, pp. 385–6. It should be remembered that, when the French attempted to enforce their own consular jurisdiction in Livorno in 1713, it was the concerted resistance of the foreign merchants in the free port that ended the attempt.
8 Marcella Aglietti, L’istituto consolare tra Sette e Ottocento. Funzioni istituzionali, profilo giuridico e percorsi professionali nella Toscana granducale (Florence: Edizioni ETS, 2012), p. 43. Our case study is a case in point. We know that the
Alice and Francis was heading to Izmir to defy the monopoly of the Levant Company.
9 Calendar of State Papers, Domestic Series, of the Reign of Charles II, vol. 10, p. 412, Levant Company to Consul Ricaut (1 September 1670). On the English consuls in this period in particular see Stefano Villani, ‘I consoli della nazione inglese a Livorno tra il 1665 e il 1673: Joseph Kent, Thomas Clutterbuck e Ephraim Skinner’, Nuovi Studi Livornesi 11 (2004), 11–34. In these circumstances, it was hardly in the merchants’ interest to let a consul with close links to the state peruse their GA calculation.
It is likely this, rather than any pro-master attitude per se, which seems to have enticed several other ships in the same year to declare GA in Livorno rather than elsewhere. We have already seen how the
Alice and Francis deliberately avoided declaring GA in Alicante. Two other ships in the year 1670, both Dutch, were similarly prevented from entering their scheduled destinations thanks to ‘bad weather’. The
Speranza Incoronata had arrived in Livorno in January, having endured an exceptionally long and eventful journey from Arkhangelsk the year before.
10 ASP, CM, AC, 318-26 (22 January 1669). On its entry into the Mediterranean, the
Speranza had also encountered six Algerian corsairs, probably the same fleet that would attack the
Alice and Francis, and likewise claimed for damages and combat expenses. The
Speranza had also been due to enter Alicante, but had, it was claimed, been unable to do so thanks to ‘contrary weather’.
11 ASP, CM, AC, 318-26 (22 January 1669), Testimoniale. The
Principe Enrico Casimiro meanwhile had recently departed Izmir when it was attacked by three corsairs off Sapientza in Greece.
12 ASP, CM, AC, 320-7 (28 May 1670). After the battle, the ship made its
consolato at Zante. Rather than declaring the GA at Messina, the first scheduled stop, it continued to Livorno: ‘north-easterly winds’ and a ‘great sea’ had forced it to turn away from Sicily, and it had then been ‘forced’ to continue with the Dutch convoy up to Livorno.
13 ASP, CM, AC, 320-7 (28 May 1670). Testimoniale. It is impossible to establish if such explanations were genuine. There may have been a number of hidden factors involved, particularly in the case of the
Enrico Casimiro which was part of a convoy. It does, however, seem suspicious that, in a single year, three ships which had all suffered combat damage should have all been ‘forced’ to enter Livorno in order to declare the GA. In the case of the
Enrico Casimiro, a
curatore was even appointed: the nominee was once again Michele Moneta, and his objections were identical to those he made in the case of the
Alice and Francis.
14 ASP, CM, AC, 320-7 (28 May 1670), Exceptions. It seems probable that jurisdictional considerations were at the forefront of these decisions. On the trip down from North-Western Europe to the Ottoman Empire there were typically a number of major stops. On this clockface of Western Mediterranean ports – Cadiz, Alicante, Valencia, Marseille, Genoa, Livorno, Naples, Messina – only Livorno did not fall squarely under Spanish or French domination.
15 Addobbati and Dyble, ‘One hundred barrels of gunpowder’, p. 844. We have already seen that in Spanish territories the English consul had been awarded jurisdiction over cases between Englishmen thanks to the 1667 Treaty. The United Provinces likewise enjoyed the status of ‘most favoured nation’ in Spain thanks to the 1645 Treaty of Münster, meaning that they enjoyed the same rights.
16 Zaugg, Stranieri di antico regime, p. 60. By the late 1660s, a common arrangement in Spanish ports was that cases involving English, French, or Dutch merchants came before a
juez conservador, a figure chosen from among the royal magistrates who enjoyed exclusive competence over the affairs of the
natio. In some cases, they were chosen with the help of foreign ambassadors, and their loyalty could be ensured through the fact that the
natio renumerated them.
17 It should be noted, however, that their exact jurisdiction was constantly renegotiated; they also faced opposition from local courts. See Zaugg, Stranieri di antico regime, pp. 59–71; Zaugg, ‘Judging foreigners’, pp. 175–6. It may be that masters preferred the more neutral setting of Livorno for declaring GA to declaring in a port under Spanish domination, where a figure more closely associated with the resident merchant community, or even the national state, enjoyed particular sway.