Sea Control - Sea Control 454 - Maritime Trade, Averages & Institutional Development in the Low Countries with Dr. Gijs Dreijer

Episode Date: August 17, 2023

The Power and Pains of Polysemy: Maritime Trade, Averages, and Institutional Development in the Low Countries (15th-16th Centuries), by Dr. Gijs Dreier, Brill, 2023

Hello, I'm Nathan Miller. I'm filling in for Jared this week. Today, Jared speaks with Dr. Hayes Dreyer about his book, The Power and Pains of Polysemy, Maritime Trade Averages and Institutional Development in the Low Countries, 15th through 16th Centuries. Here at Sea Control, we are approaching our 300th episode since our relaunch, and we would like to have a show dedicated to answering your questions. If you would like to submit a question, please email us at sea control at SimSec.org. I would like to plug our local chapters. If you are in South Korea, Egypt, Singapore, France, New York, India, or the Caribbean, odds are there's a local chapter near you. You can find a full listing of local chapters and contact information on our website, SimSec.org.

Finally, I highly recommend our partners in the SimSec podcast network, The Bilge Pumps. You can find Alex, Jamie, Drack, and a pile of iron brew bottles wherever you download your podcasts. And on that note, I'll turn it over to Kimber's men. Aloha, shipmates, and welcome back aboard Sea Control. My guest today is Dr. Hayes Dreyer, and we'll be discussing his book, The Power and Pains of Polysemy, Maritime Trade Averages and Institutional Development in the Low Countries in the 15th and 16th Centuries. He is welcome aboard. Could you start by telling the listeners a little bit about your background, please?

If I messed up the pronunciation on the first name there, I probably Americanized a little bit. So if you need to correct me, please go ahead. No, no worries. You did well. And thanks for having me. So I am a postdoc presently at Leiden University in the Netherlands, did my PhD at the University of Exeter in the United Kingdom and the Free University of Brussels.

I've worked on all sorts of maritime historical topics ranging from my PhD on the 16th century in Antwerp, this maritime history, but also worked on the chart of companies, for example, in the 18th century. So all sorts of maritime historical interests I have from the 16th to the 19th century. Well, you're in the right place. Thank you for coming aboard here. As a reminder to listeners, all opinions are our own and not reflective of any of the institutions with which we might be otherwise associated. So one of my favorite things is about reading topics like this. They seem obscure. And then you start playing them forward to today and you realize that. But no, these things that we're talking about from the 15th and 16th centuries still exist today. And as people become more and more aware of the maritime domain, they become more and more pertinent.

So what is general average and why is it important today? right so it's very much true that the topic might seem obscure and that was the case for a long time also during my phd but as your listeners might remember in march 2021 when i submitted my phd the ever given the large ship located the suez canal had a large fallout in terms of the costs and so on and then actually general average was proclaimed for part of the cost so the salvage costs and so what is general average it's as the oxford english dictionary calls it the apportionment of last cost by intentional damage to the ship or sacrifice of cargo and consequent loss of freight um it sounds a bit technical so what do we mean by this for example if two or three parties are

engaged in a maritime venture if we look at the 16th century for example have woo on board and In a storm, the shipmaster is forced to throw overboard some of the wool of one of the three people, having put wool on the ship, intentionally to save the ship so it can sail onwards. In that case, it would be reasonable that the other two contribute to the loss of the third person. And this is essentially the very basic principle of general average. So it's a tool to share damages and share the risks of a maritime venture. Of course, it's much more difficult than the example I gave, but it's something that originates already in Roman law, really to share risks in a maritime venture. Yeah, I would imagine as we talk about a vessel like the Ever Given, which may have tens of thousands of containers on board there, that spreading that risk across anyone who might have an interest in those is immensely more

complex today than the 15th, 16th century examples that you gave. How is it different from insurance? So it's both different in terms of how long it has existed. So as I said, so what the idea behind general average, so it's not called at that point general average, but it already originates in 8th century before Christ maritime law and is written down for the first time in the 6th century in Justinian's Digest. And so it shares risks and damages in the maritime venture.

Insurance develops from the sea loans, which do exist in Roman law, and then develops only in the 14th century in Genoa, for example. And what it does is that it shifts risk to a third party. So if I have my cargo, I insure it, and I essentially, by paying a premium, transfer the risk to a third party, so the insurer. Whereas, in general average, what we do is we share the risk among, for example, three or four interest parties.

Of course, as you said, it's very much the case that, for example, in the Ever Given case, you have thousands of stakeholders in the ship. Insurers come in as well, to an extent because they have to pay for the insured cargo, for example. So it's much more complex. But in the very essence, what insurance does is to transfer risk to a third party, whereas in general average, you share the risk among everyone engaged in the venture. You quoted Johan van Niekerk's words on the history of insurance law, describing it as a quote unquote completist nightmare. Why is that the case? And how many different types of averages are there? Because you actually have a table in here that lists them out. I've done almost 300 of these episodes now. I'm not an expert on any one thing, but I've been exposed to many different parts of the maritime domain, like all its little intricacies, and almost all of these were new to me. I can very well imagine. So often when you read, if you read anything at all about general ethics, what you will see is that it does originate, as I said, in Roman law, and that it still exists today. which gives you the impression that this has always been there

and that sort of it has been stable over the centuries. I don't think that's particularly true. So it's true that the principle behind general average existed in Roman law and that nowadays general average still exists. However, what you see is that when in the 16th century, the 17th century, a lot of the varieties of average developed. um why i quote from he kirk's words who wrote a huge book on insurance law in roman dutch law it's like 1400 pages or so uh he said it was a completist nightmare because of all the sources

but all the very difficult legal texts that existed on this i think that's very much the same for general average and so i call all the averages combined if you i call them averages with a capital letter so to distinguish it from average as in the mean so what we expected by we i mean my phd thesis supervisor and i is that we would find three types of averages so general so that's what we still know right so we share the risks among everyone particular average which is simply an accident for example my wool falls just drops into the water that's called a particular average, just damage, if you will, and a common average. And that's sort of the average that pays for the normal operating costs of a venture. So think of the fees you pay in a harbor or the

freight of the shipmaster. This exists all across Europe. So that goes for the Mediterranean. it goes for example for northwestern Europe for the Hanseatic area we knew before that the Castilian case was quite different because they had what they called the averia and you see this quite a lot when you look at the literature about Spanish colonial trade in the 16th 17th 18th century and this is a contribution for protection costs it's called the averia so what merchants had to do is to pay one or two percent of the cargo they put on the Spanish fleets that go to Mexico or Peru or whatever to pay for, for example, artillery and convoy ships. However, when I progressed in my research, I found that there were also those type of compulsory

contributions, as I call them, for protection costs in the low countries. For example, when you had to sale from Castile to the Low Countries, so from Bilbao to Bruges, for example, and that the Castilian and the Biscayre merchants, who had a very important role in Bruges, both as merchants but also financially, that they also had certain compulsory contributions and that there were all sorts of varieties of average, if you will, to contribute towards the common cost of a venture so we're not talking about as in general average the damages so a general average only arises when actual damages intentional damages are done to ship or cargo but really towards the common cost of a venture so i found in total six varieties of averages

took me quite a lot of time to find them all out in the sources and that's why i refer to it as what you would call a completist nightmare so when you talk about the sources for this are you referring specifically to the low countries are you having to go to each of these sort of shipping um i don't know what the right word here is but like shipping power centers if you will if you're referring to northwestern europe and the hanseatic area or castile or other places in the mediterranean and go through all their source material as well so i was lucky to work in a project funded by the european research council so other people worked for example on italy or on what is now spain so castile so we had a whole team working on this we could share information

which was quite useful so i didn't have to go to everything and we could help each other so i primarily focused on legislation and court cases from the low countries and a little bit on Castilian, so Spanish, sorts of material. Okay, you've kind of answered this question a little bit, so I'm hoping maybe you can tell us some more of the origin story. Where general average originated, you mentioned in Roman law, and I think you threw out Justinian as well there too, but can you tell us a little bit more of how it originated? Yes. So, as I said, the original concept originates in Roman law, so in the 6th century Justinian digest. This references the so-called Rhodian law, the Lex Rhodia, where they say it is said by the Lex Rhodia that if you throw cargo overboard, that it is fair to reimburse those whose cargo is damaged to pay to reimburse him.

It references 8th century BC Rhodian law, so this has not been accepted in the 6th century digest. we don't know the original so this at least indicates that we know that it existed already in let's say the mediterranean eastern mediterranean in the 8th century bc that a certain concept was known however we know that similar concepts also existed for example in islamic maritime law so in medieval islamic maritime law and that similar concepts for risk sharing also existed for example in very early medieval china and japan it's also funnily enough quoted in the bible in yona so there you can also find a reference to sort of the idea behind a general average and then you see that for a very long time there are no references

on averages until they sort of subsequently reappear in medieval maritime law and by this I mean, for example, the famous judgments of Alleran, so this is 12th century law, probably originating on the island of Alleran, so near Bordeaux in France, where they sort of have a very basic compilation of maritime rules to deal with, for example, the white trade in Bordeaux in the medieval period. And that's sort of how it develops. And then only in the 15th, 16th century, you see a lot more legislation picking up. And then, of course, also influencing what happens, for example, in the Mediterranean and in Antwerp and so on in the low countries also influences what happens, for example, in Amsterdam and London. So the later more famous financial centers in the world. so then how did general average develop in the low countries and then how is that development codified or captured and where so what you see is that first they rely very much on those medieval compilations i mentioned right so for example hamburg or lubeck so the german cities codify some of these laws you have these compilations of medieval maritime law these contain largely basic rules of thumb for example in bruges they translate these judgments of all around into

let's say early modern flemish dutch that's where you see it developing a bit they add some rules so for example what they do uh very cut the most common examples of general average in antiquity are jettison so when you throw when you jettison cargo or when you cut the mast of a ship in a storm right so that you can still on what you then see is that they also start including new causes for general average so that means also expenses to prevent greater damages so for example what in dutch they call strangen and that means when you run onto a sand bank and wait there until the storm is over so there's no actual immediate damage but you pay the damage if you will sort of the delay for the venture and for example also costs to combat piracy and privateering

so if damages arise from piracy and privateering this is included so in local laws also there is a stricter liability for the shipmaster so the shipmaster now has to stick to all sorts of rules when when he can or cannot perform an act and then claim general average so on behalf of the merchants although he also gets a greater freedom of action if you will so he gets more options for general average what you then see is that around 1550 you see the first codifications if you will and so the concept of general average is first defined in a royal legislation in 1551 so it's an ordinance by Charles V, and then an ordinance in 1563 by Phillips II. He has 12 rules on general average in chapter, so ordinances on maritime law, and this is primarily to protect ships coming to

the Low Countries and from the Low Countries against French privateering. Also, something here you see also the other varieties developing, so for example, the Common Average, and then In the very final part of the 16th century, you see that Antwerp, which is the major financial center for trade in 16th century Europe, you see that they also start codifying maritime law. And then they come up in 1608 with this huge codification, so this legal book called the Compilate, where they have 500 rules on maritime law. And this includes almost 200 rules on general average, for example, on bottomry, and then 300 on insurance. So this is really where it's codified. So you see sort of they start the 16th century with some rules of thumb and then gradually codify and expand the rules, if you will. And, for example, also deal with what happens if cargo is insured and the cargo is used as the basis for you to contribute towards someone else's loss.

So then insurers need to pay for general average, if you will. So all these risk management tools become intertwined. I'm sorry, I'm just going to ask one more question before we go here. But is there a modern document where all this is captured? Is this an article somewhere buried within UNCLOS? So the rules on general average are these days regulated in the so-called York Antwerp Rules, which are updated every now and then, so every 10 years roughly. So they're renegotiated. So they have existed since 1890, and they are updated every 7 to 10 years or so.

So if I'm not mistaken, there's a new round of negotiations going on. so these are regulated by the the Comité Maritime International these days well I'm sorry that that's all that we have time for today I'd like to thank my guest Dr. Hayes Dreyer Hayes where can we find you online and what are you working on next so I'm not on Twitter or anything so you can find me on academia or on Leiden University's web page so I'm working a couple of articles It's also drawn from the book and a bit of comparative articles as well. And on the new postdoctoral project, which is Dutch entrepreneurs in Africa in the 19th century. So something very, very different.

I look forward to reading those when they come out. Maybe we can bring you back to discuss. But thank you again for joining us. To listeners, thanks for tuning in. We'll see you next time. Thanks for having me. © BF-WATCH TV 2021 So help me, Bob. I'm pulling the alley. Why am I pulling the alley? Help me, Bob. I'm pulling the alley. Pulling the alley's simple now.