GA as Last Resort
So far, the case studies presented by this chapter have amply demonstrated the interplay of instruments designed to manage risk. In the case of the Cavallo Marino, as in most cases, the GA acted as the first line of defence offering a first round of partition, before other practices such as sea loan, premium insurance, and joint ownership of assets spread the risk further. In certain eventualities, however, GA would have been the only line of defence: namely in the exceptionally unlucky occasions when the value of the GA exceeded the value of the voyage. When there has been a physical sacrifice such as a jettison, of course, the costs to be repartitioned can logically never reach 100 per cent of the total value of the venture, because this would indicate the total loss of the ship and cargo. The same is not true, however, of expenses. In these cases, insurers and sea-loan creditors were only liable up to the value they had lent or insured, but interested parties were, apparently, considered liable for these ‘overloaded’ GA, as demonstrated by a case settled in 1670. This is further confirmation that the ‘unit’ of the GA procedure was not so much the ship and cargo themselves but rather the ‘venture’. Those who had invested in the venture were liable for extraordinary costs, even when these exceeded their initial investment.
An ‘overloaded’ GA of this nature arose as a result of the misfortunes suffered by the ship,
La Madonna della Concettione, and its shipmaster, Giacomo Addison.
1 ASP, CM, AC, 314-9 (16 March 1668). Having set out from Livorno early in 1667, the ship was trapped in Tripoli for six months thanks to an uprising of inhabitants of the hinterland against the city. When the ship finally managed to leave Tripoli, it was recaptured by corsairs and taken back there: the ship had suffered damage, and once it was repaired they were forced to seek their freedom once more. This having been obtained (the report does not say how), the master put into Trapani on the return journey, where the ship and cargo were sequestered for ten months on suspicion that some of it belonged to Frenchmen (the War of Devolution between France and Spain was still in progress). The calculation mentions expense claims made in Palermo, the result of the extended litigation mentioned by the master. While the ship was sequestered, several items of cargo were stolen by Sicilians. Finally, when the ship eventually arrived at Livorno, the master was informed that quarantine times had increased in their absence from 20 to 40 days.
2 ASP, CM, AC, 314-9 (16 March 1668), Testimoniale e domanda. The GA thus consisted of: stolen cargo; damage to the boat and cargo from the corsair; six months of victuals for the crew of 14 men in Tripoli and 10.5 months of victuals in Sicily; 10.5 months of victuals for a Giovanni Zecchino, the receiving merchant in Livorno, who had assisted with the legal proceedings in Palermo; ‘many payments’ to the guards in Trapani (probably bribes); expenses for the legal proceedings, ‘three months of prison and provisions, lawyers, and writings’; ‘gifts’ to the ministers of the ‘royal court’ (most certainly bribes); and expenses of victuals and wages for the mariners made for 20 days of the 40-day quarantine which ‘had the said boat not been detained in Trapani, would have been only 20’.
3 ASP, CM, AC, 314-9 (16 March 1668), Calculation. This amounted to damages of 8,009 pieces, to be repartitioned over a voyage worth just 6,509 pieces: a GA contribution rate of 123 per cent.
In this particular case, the only interested parties were the shipmaster, who also had cargo on board the ship, and a single merchant, Giovanni Zecchino. Zecchino had arranged sea loans from various parties, the value of which totalled 7,020 pieces, more than the value of the security but still not enough to cover all expenses. Nine months later, two of those who had offered money through a sea loan, Iacob and Isack Comaccio, sued Zecchino and his guarantor, Giovanni Mestura, for the partial return of their pay-out.
4 ASP, CM, AC, 319-8 (6 February 1669). Having given a loan of 1,000 pieces, the pair had been charged 1,232 pieces in respect to the GA. The two creditors claimed, however, that while ‘the Average was justly owed, they were not held to the said Average other than at a rate of 100 per cent, while for the said judgement they were condemned only to contribute with the sums given at
cambio marittimo’.
5 ASP, CM, AC, 319-8 (6 February 1669), Testimoniale e domanda. They demanded the return of 232 pieces, plus a penalty of 20 per cent.
6 ASP, CM, AC, 319-8 (6 February 1669). The was a reference the doctrine of
solve et repete, contained in the standard printed insurance form, which stipulated that the insurer should pay-out for a claim before contesting it in court. In return, the insured would be liable for a 20 per cent surcharge if the claim was later found to be unwarranted.
7 See a copy of the form contained in Pardessus, Collection de lois maritimes, vol. 4, p. 607. This prevented underwriters from endlessly litigating to defer payment.
8 Addobbati, ‘Italy 1500–1800’, p. 52. It seems that the same regulation was being applied to sea loans.
The judgement went in favour of the creditors, and the principle was upheld that the giver of a sea loan was liable only up to the sum he had actually lent. However, the fact that the
Consoli had certified a GA claim worth 123 per cent of the voyages demonstrates that no such limit existed in cases of GA. For any expenses which exceeded the total value of the voyage, therefore, GA was therefore the only form of defence – for the master, at least, since he was generally paying such expenses up front. Such a principle was probably unwelcome for cargo interests, on the other hand, as it left them liable for costs over and above their interest in the venture which they were not even able to insure against. Despite the fact that the early modern master, in contrast to his medieval counterpart, was ever more likely to be a simple agent of the merchants rather than a co-adventurer, older notions of common venture still prevailed: the collective was still held responsible for the vicissitudes of the voyage even when the participants had received no benefit from the sacrifice.
9 De ruyyscher, ‘Maxims, principles, and legal change’, pp. 274–5. In the Netherlands, merchants were by this point protected against such claims thanks to the principle that no one should ‘pay to the sea more than he had entrusted to the same sea’, a principle laid down for the first time by the jurist Taco van Glins in 1665 but which was probably in force even earlier.
10 Dreijer, The Power and Pains, p. 70. Comparison with the Tuscan case not only lays bear the euphemistic quality of some of these whimsical juridical maxims (it was the master, not the sea, who was out of pocket), but once again demonstrates the variety of different approaches to GA and risk sharing, not only at the microscopic level of procedural niceties and fiscal hair-splitting, but at a conceptual level, with clear implications for competing sectoral interests.