The Ordonnance de la marine of 1681 marked—at least in theory—a pivotal step forward in enshrining the unfettered maritime authority of the French state. Spearheaded by Jean-Baptiste Colbert, Louis XIV’s famous minister, the wide-reaching Ordonnance assimilated a rich genealogy of customary maritime law into a single proclamation of positive law. Yet very little has been said by historians about how the Ordonnance was compiled. This essay sheds light on this process through studying the Chambre générale des assurances et grosses aventures (1668–1686), a little-known Parisian insurance institution established under the auspices of Colbert.Footnote 1 The crown consulted the Chambre on maritime affairs before the Ordonnance was issued. Yet, as an insurance institution, the Chambre was not an impartial source of counsel. This essay analyses the advice given by the Chambre on which entities should contribute to General Average costs in instances of ship redemptions, which bore clear evidence of self-interest. This forced the crown to reinterpret its advice within a broader logic that catered to the interests of other maritime stakeholders at the expense of insurers. This case study invites us to evaluate our understanding of how the Ordonnance was compiled and to reflect more broadly on the interests of the French state in insurance practices across France.

Contextualising the Ordonnance: Custom, Positive Law and the French State

The Ordonnance de la marine was a product of the French state’s push for greater legal authority across all aspects of life in France, which entailed a broad, protracted and contested shift from diffuse customary and seigneurial law to state-derived positive law. Martine Grinberg has written on the transformation of seigneurial rights and customs into positive law which derived its legitimacy from the state.Footnote 2 This emerged through the process of recording seigneurial rights and customs in assemblées de redaction. These assemblies were tasked with collating, editing and recording seigneurial rights and customs across France. To quote Grinberg, the “redaction and reformation of customs were at the same time a reality of writing, a juridical event and a political process”.Footnote 3 The mere act of compiling, deliberating on and recording customs transformed them entirely, as their written nature and ratification by an assembly gave them the status of positive law that they had not enjoyed up to that point: timeless custom became time-bound law.Footnote 4

This shift of ultimate legislative power towards the crown was pushed back, however, by the French Wars of the Religion of 1562–98. The return to peace with the reigns of Henri IV and Louis XIII kicked this process off again, but it was neither speedy nor linear. An early—but ultimately failed—effort in French legal codification, buttressed supposedly by Louis XIII’s authority, emerged in the form of the Code Michau, promulgated in 1629. The code sought a bold ‘commercial mercantilis[t]’ revolution, as Bernard Allaire has called it, promoting cooperation between the crown, nobility and merchants to achieve greater cross-border trade through crown regulation of commercial and maritime practices and crown support of mercantile endeavours and shipbuilding.Footnote 5 Although the crown successfully forced the parlement of Paris to register the code through a lit de justice, whereby the king himself appeared to ensure his will was exercised, it was not registered in the parlements of the Midi in southern France. In any case, it soon became a ‘dead letter’ in its jurisdictional claims, ignored even by the crown after 1630.

The code was a failure at the time; however, while 1629 was not the time to see such reform through, it provided blueprints for a more propitious attempt by Colbert in 1667 and beyond.

What had changed between 1629 and 1667? Colbert’s ability to push for legal codification stemmed from the détente that emerged between the crown and the nobility in the aftermath of the Frondes.Footnote 6 These were a set of uprisings throughout France in the period 1648–53 with roots in municipal and provincial grievances towards Louis XIV’s chief minister during his minority, Cardinal Mazarin . The failure of the resistance, led by the Grand Condé, emphasised that the French crown was too strong to be defeated by the splintered nobility; yet the French crown depended on long-entrenched patronage networks in the provinces—with nobles as linchpins—to pursue its interests and impose its will. Therefore, the Frondes were significant in entrenching a broadly collaborative relationship between the crown and the nobility leading into Louis XIV’s personal rule.Footnote 7 This dynamic facilitated the crown’s efforts to assert greater legal authority across France.

Outside of France, the geopolitical climate had also substantially shifted. Colbert’s newfound capacity to pursue fiscal and maritime reforms was supported by a strong need to pursue such reforms in the light of the rapid naval development of England and the United Provinces in the 1650s and 1660s. After the Franco-Spanish Treaty of the Pyrenees of 1659, Louis XIV’s gaze turned northwards to the new Protestant threats whose presses painted France as a paradigm for popish ‘tyranny’ for the remainder of the century.Footnote 8 Certainly, Colbert was truly obsessed with the economic success of the Dutch after 1648 and consciously modelled his commercial projects on Dutch archetypes.Footnote 9

With the crushing of the Frondes, the renewed support of the nobility, Louis XIV’s declaration of personal rule in 1661 and the good fortune of almost uninterrupted peace until the Dutch War of 1672, Colbert pursued widespread reform with far less resistance than his predecessors, Cardinal Richelieu and Mazarin, had faced before him. Ambitious legal interventions supported Colbert’s famous commercial and maritime interests. Amongst a broader administrative reform—including the Ordonnance civile of 1667, the Ordonnance sur les eaux et forêts of 1669 and the Ordonnance criminelle of 1670—came Colbert’s famous Ordonnance sur le commerce of 1673 and Ordonnance de la marine of 1681. Together, these Ordonnances legislated for all aspects of French life. The Ordonnance de la marine (hereafter the Ordonnance) enshrined the authority of the admiralty courts in the first instance in a vast array of maritime disputes, including insurance and Averages. This authority was rigorously defined in the Ordonnance’s 730 articles.Footnote 10 Later edicts of 1691 clarified the jurisdictional field of play across France by defining the precise bounds of each admiralty’s jurisdictional reach, helping to cement the crown’s efforts where previous measures to assert the authority of the admiralties had failed.Footnote 11

The significance of the Ordonnance is widely noted, even if the extent to which it was successfully implemented has not yet been explored extensively.Footnote 12 Yet, as Francesca Trivellato has recently noted, ‘the precise itinerary that led to the formulation’ of the Ordonnance ‘is poorly documented’, so little is currently known about how it was compiled.Footnote 13

Consequently, writers since the ancien régime have focussed on the influence of the legal texts preceding the Ordonnance. In accessing these texts, Colbert and the compilers were indebted to Richelieu and the humanist circle that emerged around him during the Cardinal’s premiership.Footnote 14 Most notably, Étienne Cleirac’s 1648 work Us et coutumes de la mer reproduced, and offered commentaries for, legal compilations that were influential in the governing of maritime affairs. Two of these compilations would go on to have a particular influence on the Ordonnance’s approach to General Average and insurance : the Rôles d’Oléron and the Guidon de la mer. The Rôles emerged originally between 1204 and 1224 as a ‘code of conduct’ for the merchants, ship-owners, captains and crews involved in the voyages of the wine fleet that took place annually from La Rochelle or Bordeaux to Brittany , Normandy , England , Scotland or Flanders.Footnote 15 The articles of the Rôles were translated and adapted more broadly in the following centuries across northern Europe. By contrast, the Guidon was “a collection of norms concerning primarily marine insurance emanating from Rouen in the late sixteenth century”.Footnote 16 Since General Average contributions were insurable in France up to and after the Ordonnance, the Guidon also discusses the instrument extensively.

Writers have recognised the influence of these compilations on the Ordonnance for centuries. René-Josué Valin’s extraordinary eighteenth-century commentary on the Ordonnance painstakingly documented the legal borrowing throughout the text, recognising that its ‘principles, sense and spirit’ can only be understood if it is studied alongside the legal sources which informed its construction.Footnote 17 Similarly, while the famous eighteenth-century Marseillais lawyer Balthazard-Marie Émérigon acknowledged in passing that provincial institutions ‘were without doubt consulted’ on the Ordonnance, his emphasis remained on the legal texts preceding it. After introducing an array of medieval compilations, including the Rôles and the Guidon, he concluded that “the Ordonnance of 1681 is a composite of all these ancient laws”.Footnote 18 In adopting this textual focus, both men applauded the compilers’ deft ability to draw on prior legal compilations to create a coherent and comprehensive document of positive law.

The significance of these compilations is indisputable. I will argue, however, that the use of these texts in compiling the Ordonnance needs to be reinterpreted in the light of the influence of an insurance institution whose existence has been widely ignored by historians. It is to this institution that I now turn.

The Chambre and the Compilation of the Ordonnance

The Chambre générale des assurances et grosses aventures was established on 5 June 1668, with the blessing of Jean-Baptiste Colbert, Louis XIV’s eminent minister of financial, commercial and, after 1669, maritime affairs.Footnote 19 The Chambre comprised a group of notable Parisians who conducted private underwriting on rue Quincampoix in central Paris . Francesco Bellinzani became the Chambre’s president in 1670, a position he retained until his death in 1684.Footnote 20 Bellinzani was Colbert’s right-hand man in commercial affairs, serving as intendant of commerce (intendant du commerce) in the secretariat of state for maritime affairs (secrétariat d’état de la marine), but it is unclear whether Bellinzani had had any underwriting experience before joining the Chambre.Footnote 21

From its establishment in 1668, the Chambre’s underwriters faced several challenges by virtue of being located in Paris, away from the key maritime networks of information. Indeed, Colbert noted in a letter of 26 December 1671 that ‘the majority of disagreements’ between the Chambre’s underwriters and policyholders were ‘a product of the difficulty of having certain news about the loss of insured vessels and merchandise’.Footnote 22 Yet Table 1 illustrates that, in spite of these challenges, the insurers consistently scaled up their underwriting each year up to 1672.

Table 1 The amounts underwritten by the Chambre in livres tournois in the years 1668–1672, alongside the losses recorded in those years. N.B. this does not include Averages
Full size table

This trend was reversed after the onset of the Dutch War in 1672. A flood of Dutch corsairs swarmed the Atlantic coastline of France and ravaged commercial shipping.Footnote 23 The losses were significant, and Colbert wrote in 1673 that many underwriters had withdrawn entirely from the Chambre as a result.Footnote 24 Never again did underwriting in the Chambre reach the levels seen between 1670 and 1672.

Yet the institution’s influence continued long after 1672, as revealed in the preface of Jacques Savary’s bestselling commercial manual of 1675, Le parfait négociant. Here, Savary justified his decision to not treat extensively on maritime affairs, explaining that, having been informed of the Ordonnance’s ongoing process of drafting, he did not wish to make claims that would eventually contradict it. In a piece of self-fashioning common in commercial manuals of the period, Savary added that ‘I even had the honour of giving my opinion in the Chambre des assurances of this city of Paris’ on matters pertaining to the forthcoming Ordonnance.Footnote 25 This opportunity likely arose from his services as an external arbiter for the Chambre in instances of policy disputes.Footnote 26

Sadly, much of this process does not seem to have been recorded, save for one instance noted in a register where the Chambre kept minutes of its general assemblies. On 7 August 1676—after Le parfait négociant was published, suggesting that the Chambre’s involvement in discussions on the Ordonnance was not isolated—a general assembly of the Chambre was held.Footnote 27 Bellinzani asked the members to give their opinion on two questions: firstly, in instances of the redemption of captured ships where the contribution of the ship and merchandise are obligatory through General Average, should the freight also contribute? Secondly, should the merchandise be valued at the rate of purchase, or at their value in the place where they are eventually unloaded?Footnote 28

These were questions to which the members were eminently qualified to respond. Insurers were widely recognised as being liable for General Average contributions: in the Guidon de la mer, article 1 of the chapter Des avaries begins with the statement that “the insurer is obliged to indemnify the merchant [i.e. policyholder] for… [all] averages”, including General Average, and other costs incurred from the moment merchandise is loaded on a vessel.Footnote 29 Indeed, General Average was recognised as a significant topic of discussion within the Chambre in its first ever general assembly on 17 June 1670, and the precise interpretation of the Guidon vis-à-vis Averages and insurance indemnities underpinned a dispute during a general assembly of 15 July 1670.Footnote 30 Consequently, the Chambre’s underwriters grappled with the intricacies of General Average as part of their profession. Yet this posed a problem, as the underwriters’ technical knowledge of General Average was intimately intertwined with their direct stake in the direction to be taken by the Ordonnance: how a contribution to General Average was determined could radically alter the scale of an insurer’s pay-out and the scope for further dispute with the policyholder. In response to these questions, therefore, the members opted to give clear, decisive answers based on an underlying logic of clarity—a logic that would best serve the underwriters’ interests.

Answering the first question, the members concluded that the ship—alongside its equipment and ‘provisions’, the money advanced to the crew and ‘generally all which is spent to put the ship to sea’—is liable for contribution, in addition to the merchandise.Footnote 31 The freight should not contribute to the Average, however, as it is precisely the ship and the associated costs which generate the freight—that is, the freight constitutes payment for the service provided through these investments. It would therefore be unjust, they argued, if the ship ‘was to pay twice [for] the same thing, and it is for this reason that the ordonnances de la mer will that it is the ship or the freight which contributes, but not both’.Footnote 32

The phrase ‘ordonnances de la mer’ here most likely refers to several maritime compilations from the late-medieval period. No doubt the members had the Rôles d’Oléron in mind: while the earliest versions of the Rôles made no mention of freight, later versions—including the version in Cleirac’s Us et coutumes de la mer—empowered the shipmaster to ‘say whether to count the ship or his freightage, at his choice, to compensate the damage’.Footnote 33 This was to the benefit of the shipmaster, who could simply choose between the ship and the freight depending on which would require the smallest contribution. The Ordinancie of Amsterdam—which heavily influenced the Waterrecht, another significant medieval compilation—diverged here in giving this power of choice to the merchants.Footnote 34

In this case, the Chambre’s members openly defied prior legal compilations by arguing that there should be no choice between the ship and the freight in each case: instead, the ship should always contribute while the freight should not. On the surface, this does not appear to have been a self-interested response, as freight was broadly recognised to be beyond the remit of insurers. In the Guidon de la mer, article 1 of the section Des asseurances sur corps de nef allows for insurance on the ship and its materials, but ‘by no means on the freight’, in conformity with the practices of Antwerp and Amsterdam.Footnote 35 If anything, the insurers stood to lose out if their suggestion was implemented, as the contribution demanded by the entities they insured would be greater than if the freight was included. The members sought greater uniformity and clarity in maritime practice here, even if it did not necessarily serve their own interests.

This logic fed into the members’ answer to the second question. They suggested that the merchandise subject to contribution should be valued based on how much it cost in the place of purchase rather than its estimated value in the place of unloading, as ‘the evaluation of merchandise in the latter place is a variable, uncertain thing and subject to contesting’, while the cost in the place of purchase ‘is always certain and is justified by invoices and other items’.Footnote 36 This was an entirely unconventional recommendation: article 8 of the Rôles d’Oléron suggested that merchandise subject to contribution should be valued based on the price received in the place of unloading. This was also common practice in Antwerp after the sixteenth century, per Quentin Weytsen’s famous manual on Averages.Footnote 37

Why did the members wish for the Ordonnance to go against the grain here? Again, they strove for certainty—but, in this instance, certainty met their own interests. Merchandise was by far the most insured effect in the Chambre.Footnote 38 Thus, the benefits of the Chambre’s logic were clear: contributions from merchandise based on the cost in the place of purchase would almost always be lower than those based on the value in the place of unloading. Even though this proposal risked underwriters being liable for greater costs in instances where they insured the ship, the contribution of the merchandise would at least be ‘certain’: valuing the merchandise based on invoices rather than estimates would engender confidence in the validity of the General Average calculus . This was all the more important for the Chambre’s underwriters because of the challenges they faced in gathering information on maritime affairs; set documentary standards would create a clear paper trail alleviating the information asymmetries faced in Paris.

This sheds light on why the members argued so strongly to exclude freight from contributing to redemption costs. Since they argued that the contributing merchandise should be valued based on its cost before the redemption, it would have been inconsistent for the members to have argued that the freight—paid at the conclusion of the voyage—must contribute.Footnote 39

In short, the Chambre stood to benefit from its own proposal. The members argued that the selection and valuation of contributing entities should be derived from documentation produced, and actions made, before the redemption of the ship. Consequently, they strove to exclude freight—the payment of which was a by-product of the completed voyage—from General Average contributions and to value the merchandise based on its price in the place of purchase. This ex-ante logic aimed to limit pay-outs and to create documentary standards that would aid the members’ underwriting.

The Ordonnance bears the imprint of this input, but the Chambre’s logic apparently did not persuade the compilers. Article 20 of the section Du fret ou nolis mandates that ‘contributions for the redemption [of ships] will be made on [1] the standard price of merchandise in the place of their unloading, deducting fees, and [2] on the total [value] of the ship and freight, deducting the consumed provisions and advances made to the sailors, who will also contribute to the benefit of the freight, in proportion to what remains due of their wages’.Footnote 40

The Ordonnance therefore determined, in defiance of the earlier compilations, that both the ship and the freight should contribute, albeit with specific deductions to be made. The bipartite structuring of the article—reflecting the questions posed to the Chambre—and the precise deductions which were mandated indicates that the Chambre’s opinions were taken into account, but the ex-ante logic they proposed for calculating contributions was rejected. Specifically, the compilers seem to have been receptive to the members’ argument that any voyage involving the freighting of merchandise depends upon a significant upfront investment. The members identified the ‘provisions’ and the money advanced to the crew as examples of services provided by the shipmaster and/or ship-owners for which the freight is given. While the compilers clearly did not agree with the members’ conclusion that the freight should not contribute, the article specifically deducts ‘consumed provisions and advances made to the sailors’ from the total value of the ship and the freight. Key aspects from the members’ discussion were therefore integrated into the Ordonnance, but through an entirely different logic.

What was this logic? While the Chambre’s members sought a level of uniformity and transparency that would support their underwriting activities, the Ordonnance article is more complicated, reflecting a need to address the interests of all the stakeholders in a voyage. Rejecting the Chambre’s call for valuing merchandise based on its price in the place of purchase, the article echoed the Rôles d’Oléron and the practices of Antwerp in stipulating that merchandise be valued at the ‘standard price’ in the place of unloading. This likely aimed to anticipate and respond to the argument that would be posed by shipmasters that, without the redemption of the ship, the merchandise would never reach the eventual place of unloading; therefore, the merchandise should contribute in line with the ‘added value’ engendered by the redemption of the ship. The same logic holds true for the ship and the freight: since the shipmaster’s control of the ship and the earning of their freight at the end of the voyage depend on the redemption of the ship, it is fair that both contribute. This is also why the sailors were required to contribute in proportion to their outstanding wages.

Therefore, while the Chambre argued strongly for an ex-ante approach to selecting and valuing any contributing entities, the Ordonnance enshrined an ex-post logic. The compilers of the Ordonnance focussed on the benefits generated as a result of the ship’s redemption, thereby concluding that the freight ought to contribute and the merchandise be valued based on its ‘standard price’ in the place of unloading. This inversion of logic reflects the different interests that were at stake: the ex-ante logic proposed by the Chambre would have served the interests of the insurer, but not of the other parties in the voyage.

The Ordonnance echoed the Guidon de la mer in holding insurers liable for General Average costs in article 46 of the section Des assurances, while article 6 of the section Des avaries defined all costs relating to the redemption of ships and merchandise as being within the remit of General Average.Footnote 41 The fears of the Chambre’s underwriters were realised: the Ordonnance held insurers liable for redemption costs incurred by policyholders, and these costs were to be calculated based on the ‘variable, uncertain’ estimates of contributing merchandise in the place of unloading. Although the crown benefited from the expertise of the Chambre while compiling the Ordonnance, the Chambre’s own interests had not been served in the process.

Conclusion

This case study on the Ordonnance’s approach to General Average offers interesting avenues for further research. Firstly, it is an important corrective to a legal literature that has understandably focussed on the Ordonnance’s debts to prior legal texts. I do not wish to suggest that this literature is wrong—on the contrary, these legal sources were invaluable to the Ordonnance’s construction—but we need to view this process of construction in a new light. As we have seen, these texts were the basis of discussions between the Chambre and the state for how best to serve the needs of the different stakeholders in maritime voyages. As the Chambre’s members recognised, these texts had a large role to play in determining what constituted commonplace practice, but texts were far from perfect vessels of legal wisdom: they required interpretation, upon which hinged the interests of numerous maritime stakeholders. François Olivier-Martin has noted that good counsel was sought for the Ordonnance du commerce, and the Ordonnance was no different here—but the counsel given in this instance was not accepted in its entirety.Footnote 42 The Ordonnance was therefore not simply a coherent and disinterested synthesis of prior legal compilations: these compilations were the basis for a broader process of negotiation, whereby the French state sought to mediate and reconcile the interests of various stakeholders in the maritime sphere. New evidence may shed further light on the debates underpinning the construction of the Ordonnance.

Furthermore, the crown’s desire to consult with the Chambre on the Ordonnance, while ultimately ignoring the institution’s own interests, is emblematic of the broader complexities in the state’s interest in insurance under Louis XIV.Footnote 43 This interest—scarcely treated by historians up to now—continued beyond Colbert’s death: in May 1686, the Chambre gave way to a new Parisian insurance institution, the Compagnie générale des assurances et grosses aventures. This was created under the auspices of Colbert’s son and successor as secretary of state for maritime affairs, the Marquis de Seignelay . Just as the Dutch War had devastated the Chambre, the Compagnie was crippled by the Nine Years’ War, and the new institution had ceased any significant level of underwriting by 1710. The Ordonnance, therefore, was simply one piece of a far larger puzzle that becomes all the more puzzling in the light of the difficulties faced by these insurance institutions. These institutions deserve further exploration: while Amsterdam and London shone as centres of insurance in this period, Paris witnessed two false dawns that may cast the commercial history of France under the Sun King in a new light.