Rules and Practices of General Average in the Islamic Mediterranean on the Eve of the Emergence of the Italian Communes

Abstract

This essay underlines the rules of jettison and the financial settlements arising from losses at sea. Muslim jurists did not hold a consensus as regards the jetsam’s value and offered four legal opinions: based on the its cost at the market place from which it was purchased, at market place of the port of embarkation, the nearest port where they were jettisoned, or on its price at the destined port. However, as for the time, the great majority of jurists agreed on calculating the jetsam’s value at the market prices on the day of embarkation rather than the day of purchase. The paper also demonstrates that the ship was subject to contribution and how was it valued. The same applies to the freight charges; human cargo was treated as commodities.

The origin of the term General Average provides an interesting introduction to the principles of the law on jettison and contribution. The English word ‘average’ derives from the Latin avaria,¹ which in turn came from the Arabic ʿawār or ʿawāriya, signifying damaged merchandise or object.² The Latin word is unlikely to have existed prior to the middle of the tenth century, when the European Commercial Revolution in the Mediterranean world began. As Muslims began to dominate the main shipping lanes and strategic positions in the Mediterranean Sea from the second half of the seventh century onwards, hundreds of Arabic nautical and legal terms were Latinized/Romanized.³ The word ‘general’ is self-explanatory, meaning here simply ‘common’. Thus ‘General Average’ signifies the sacrifice made, or expenditure incurred, for the common safety and common good, in order to save ship, cargo, and humans imperilled in a joint maritime venture.⁴ Jurisprudentially, the classical Arabic legal terms to signify proportional participation in losses are muḥāṣṣa,⁵ maqāṣṣa (lit. compromise of settlement),⁶ and taqsīṭ.⁷

This essay’s central question revolves around Muslim jurists’ treatment of General Average loss and contribution as reflected by the early tenth-century Mālikī treatise titled Kitāb Akriyat al-Sufun, written by Muḥammad ibn ʿUmar al-Kinānī al-Andalusī (d. 310 A.H./923 C.E.).⁸ It delves into the rules of jettison, items included and excluded from being averaged, assessment of goods lost and those which remain intact, the inclusion or exclusion of freight charges, and the vessel’s valuation. These various rules, their agreement and points of disagreement, are discussed here. As for human jettison and monetary contributions for lives, this subject has received exhaustive treatment in an earlier study.⁹ It is just important to underline that, in General Average cases, cargo loss would deliberately occur in the effort to save lives and cargo.

Jettisoning cargo might make the ship lighter and more manoeuvrable in adverse circumstances.¹⁰ In pirate-infested regions, getting rid of valuable cargo might also make the ship a less tempting target for robbers.¹¹ In war zones, a ship without cargo also represented a poor target, inasmuch as it would not provide the enemy with spoils.¹² Technical failure and collision could also necessitate the jettisoning of cargo.¹³ Thus, it was lawful to jettison part or all of a vessel’s cargo, equipment, and even human beings, if necessary, to make her lighter and more buoyant, and therefore salvageable. However, even if circumstances provided plausible reasons for jettison, numerous criteria needed addressing for settlement by General Average.

Rules and Criteria of Jettison

Regardless of the presence or absence of the cargo’s owners aboard a ship, Muslim jurists authorized ship masters to sacrifice part or all or of a shipment without obtaining owners’ or their agents’ consent. This rule notably applied in situations when the crew did not have the luxury of time to settle terms with cargo owners.¹⁴ If merchants or their agents were on board, the ship master could order them to jettison their own goods.¹⁵

Muslim jurists discussed specific scenarios with particular legal implications arising from the act of jettison. In principle, a cargo owner was liable for losses if he threw his own merchandise overboard without consulting the master, the crew, and his fellow merchants and passengers. If one person cast another man’s goods into the sea, the former became liable for the loss.¹⁶ But, if A called upon B to voluntarily sacrifice B’s cargo, B had no legal right to reimbursement since A did not promise to pay him for the loss.¹⁷ A was required to indemnify B if A called upon B to jettison cargo and agreed to pay him for the loss.¹⁸ A was also obliged to guarantee B’s losses if the latter made a sacrifice for the benefit of A.¹⁹ If A called upon B to jettison C’s cargo, and A guaranteed B to indemnify C if the latter should seek remuneration, “the liability will be laid upon the thrower (B) rather than the one who gave the order (A)”.²⁰ If A called upon B to jettison his merchandise, and the former guaranteed to remunerate one half the forfeiture, the second half to be paid by the passengers, then B would only be entitled to receive one half unless the passengers had already guaranteed to pay him the second half.²¹ If A said to B: “Jettison your merchandise and the passengers and I guarantee to remunerate you”, and then the passengers denied that they authorized A to speak on their behalf, A would be solely responsible for the entire loss. In fact, some jurists ruled that the authorization should be regarded as invalid unless the majority of passengers on board selected him to speak on their behalf.²² These scenarios are not applicable to the ship master, who enjoyed exclusive jurisdiction over the ship, crew members, passengers, and cargoes during the journey, as shall be discussed in due course.

What is it recommended to jettison, the heaviest goods or those nearest at hand? And, what cargo had to be sacrificed, the low value shipment, or that which would best stabilize the vessel? Although these questions remained controversial among Muslim jurists,²³ the overwhelming majority recommended throwing overboard the heaviest accessible goods, regardless of their value.²⁴ Therefore, if someone cast accessible lighter goods overboard, though the heaviest goods were accessible to the same degree, then he was solely responsible for the loss.²⁵ This requirement raised the question of how the goods were stowed on a ship, in view of the likelihood of jettison, as well as taking into account the type of voyage and the likelihood of risk, such as whether the ship was sailing along the coast or on the high seas. In coastal navigation, jurists recommended that goods be arranged in accordance with their destinations: placing those to be unloaded first in the most accessible areas, and so forth. This rule likely applied to ships expected to make frequent stops.²⁶ Conversely, when sailing across the open sea, ships were required to place the heaviest goods in the bottom as ballast. This rule was particularly applicable to liners sailing between two fixed ports.

The occasional practice of stowing all consignors’ (shippers)²⁷ grain in a common pile became problematic when part of the grain was thrown overboard or got wet and damaged at sea. Take, for instance, a ship carrying grain cargo from Sicily to al-Mahdiyya (in Tunisia). Upon weighing anchor, she encountered a violent gale and rough seas and had to jettison part of her grain cargo and return to Sicily, where the consignors discovered that the remaining grain had been drenched, diminishing its value. Did the damage done to the grain occur before the jettison or afterwards? How were its owners to be compensated? Abū Muḥammad Ibn Abū Zayd (310–386 A.H./922–996 C.E.) ruled:

Those who jettisoned their goods became shareholders with those whose goods remained on board but suffered damage. The price for the owners of the damaged goods is calculated [as if they were] unspoiled, based on the market prices at the port from which they were shipped. Thus, their joint ownership of those [goods] is proportional to the price of the jettisoned goods. The price of the unspoiled goods should be reckoned on the basis of the market prices at the port from which they were shipped, as we have mentioned; the damage to the goods shall be considered as if it affected all shippers on board. This [rule is applied] as long as the goods were sound at the time of jettison and the damage occurred after they were cast overboard. However, if the damage befell goods prior to jettison, their value is based on their imperfect state in Sicily.²⁸

When the loss and damage to goods arose from the act of jettison itself, that loss must be shared by all interested parties engaged in the maritime venture. However, shippers whose goods got wet and spoiled prior to the act of jettison could not claim compensation unless the damage resulted from the seamen’s negligence, tort, and misconduct.²⁹

Commercial Commodities and Personal Belongings

Personal effects were generally exempt from being averaged. Most jurists excluded private possessions and capital assets—gold, silver, luggage, or even a deposit that a passenger might carry—unless intended for commercial purposes.³⁰ In that case, the passenger had to notify the ship’s scribe of the sum (gold or silver) prior to departure, and he would register it in the cargo book (shāmil).³¹ If the ship master, crew, or any ordinary passenger threw his own or another’s possessions overboard, the thrower was solely held liable for the loss sustained. The loss, great or small, was that of the owner or thrower of the article rather than of the merchant, since private possessions were excluded from the rules of commerce.³² An alternative rule excluded capital assets from contribution, regardless of whether they were meant for a passenger’s commercial transactions or for private expenses such as in the performance of ḥajj (pilgrimage).³³

Yet, a third line of reasoning included capital assets in the General Average contribution. However, only a few Mālikī scholars of the ninth and tenth centuries subscribed to such reasoning, in echo of their Byzantine counterparts.³⁴ For example, Alexandrian jurist Aḥmad Ibn Muyassar (d. 309 A.H./921 C.E.) ruled: “Goods and private belongings – whether acquired for commercial purposes or personal usage, irrespective of whether they were in a context of a lease or without – all fall under an individual category. They are partners in the saved cargoes and jetsam …”.³⁵

Assessment of General Average

Sharing forfeitures among all traders, the ill-fated, whose goods were damaged in the course of saving a vessel in distress, and the fortunate ones, whose shipments remained intact, was the most common principle of contribution. All shippers were bound by law to contribute proportionately to the value of the jetsam and of the unharmed goods.³⁶ Fortunate merchants whose cargo remained safe could not band together in an attempt to evade financial commitments to others. Thus, those whose cargo remained intact could not become each other’s ‘partners’ to the exclusion of those who suffered losses.³⁷ While the matter of who is responsible for compensation is now clear, the matter of how commercial commodities and private possessions were to be valued remains unsettled. Was it according to the price of purchase or value at the port of origin, the place of jettison, or the port of debarkation?

Various customary principles existed in Islamic jurisprudence regarding the determination of the monetary value of jetsam in relation to the cargo that remained safe. The two cardinal factors were place and time. Jurists debated four methods for evaluating jettisoned merchandise in relation to place. According to the first method:

The price of the jettisoned goods that is due to their owner is based on the amount he actually paid where these goods were loaded onto the vessel. However, this only applies if no price change occurred in the market for the goods. If, however, the market has changed, going either up or down, then the purchase price of the goods is ignored, and consideration is given to the [current] value of the goods. Be they foodstuffs, textiles, raw materials, slaves or any other commercial commodity, the price is calculated as of the moment they were taken on board.³⁸

The second method used the value of the goods at their place of purchase, applied to cases in which the goods were bought from one specific place. However, if they were purchased from different places, the assessment had to be based on current prices at the port of embarkation.³⁹ The third method arrived at valuation according to the place of jettison; jurists undoubtedly referring to the nearest coastal or inland markets where such commodities were traded.⁴⁰ The fourth method attributed value according to the current price of the merchandise at the destination port,⁴¹ an approach favoured by only a small group of jurists. The great majority of jurists maintained that the goods’ value should be based on current prices at the port of origin. As Abū Bakr Ibn ʿAbd al-Raḥmān (d. 432 A.H./1040 C.E.) stated, in calculating the monetary value of jettisoned merchandise, taxes paid at the point of embarkation were always excluded. However, port dues, usually payable by a lessor, were excluded from the calculation of General Average.⁴²

Less controversial was the principle of time in determining the value of the jetsam. Should it be evaluated according to the time it was purchased or when it was loaded on board? This question raised an additional one: How should jettisoned articles be evaluated if not purchased at the same time? To resolve these questions, Muslim jurists opined that the time of purchase was irrelevant, jettisoned merchandise had to be evaluated on the basis of current market prices: “Differences in times (of purchase) are the same as [the differences] in towns. For example, if someone were to make the purchase a year ago, and the other a month ago, goods will be reckoned as if he made the purchase a month ago”.⁴³ If items were loaded at different locations, however, their value had to be based on the market prices “on the day of embarkation rather than the day of purchase”.⁴⁴ This leads us to infer that the criterion for evaluating the jettisoned goods was market prices at the port and on the day of embarkation rather than any other place or time.

Shipping Charges

The nature of the contract of carriage required that carriers deliver consignments to their destinations in the same state as received at the port of origin. Shipping charges had to be paid upon a vessel’s arrival and the safe delivery of her cargo. This requirement led to a key problem as to whether and how to include freight charges in a General Average calculation when some goods had been damaged or jettisoned during the voyage. That is to say, should the cost of shipping be reduced in proportion to the value of goods sacrificed for the common safety? If so, how were parties to the contract to calculate this deduction from freight for contribution?

Where jetsam was recovered but lost half of its value, other shippers were to contribute proportionately to recompense for the lost value of the ill-fated shipper’s goods, provided he paid both the freight charges for his own remaining goods and for the salvager’s labour. The freight charges would not normally be subject to contribution, because they were generally conditioned upon arrival of the goods (ʿalā al-balāgh)⁴⁵; a shipper whose goods were jettisoned and could not be saved had the right not to pay any freight charges for them.⁴⁶ However, freight was due for all goods that did arrive safely (pro rata itineris). In cases where the shipper had fully or partially paid the shipping charges in advance, the lessor would have to include all or a proportion of the advance towards a General Average contribution upon a loss of goods.⁴⁷

Valuation of the Vessel for Contribution

Muslim jurists around the Mediterranean disputed the legal status of the carrying vessel in the computation of General Average. Muḥammad Ibn ʿAbd al-Ḥakam (d. 268 A.H./881 C.E.) decreed:

Our companions agreed upon the exclusion of the vessel from the principles pertaining to jettisoning, except for our ʿIrāqī companions who contend that the vessel and the vessel’s slaves, tackle, and contents – be they for commercial purposes or private possessions – are included in the calculation of the General Average. Saḥnūn reiterated in the book of Ḥabīb Ibn Naṣr [201-287 A.H./816-900 C.E.] ... that the vessel’s servants are included in the calculation in terms of the value of the jetsam.⁴⁸

Thus neither the ship nor her tackle was generally subject to contribution when assessing the value of jettisoned merchandise. This view’s advocates held:

It is inappropriate to include the ship within the calculations and principles of the General Average, since this situation is similar to a camel that lacked strength in the middle of the way and could not carry the load thereafter. The camel master, in this case, is allowed to throw the load off the camel without being bound to remunerate the owner of the merchandise.⁴⁹

In other words, when a lifeboat, masts, ropes, and another ship’s tackle were thrown overboard, they would not be included in the General Average calculus.⁵⁰ If someone jettisoned the vessel’s tackle, he alone would be held liable for the losses incurred.⁵¹

However, a second group did include the ship and her rigging in assessing losses regardless of the motive and the circumstances that forced the ship master, crew, and passengers to jettison items. This argument suggests that if the ship was either damaged or wrecked, but the goods were saved, they were subject to contribution towards the ship’s loss. Likewise, if the cargo was lost but the ship saved, the latter would be included within the principle of General Average. These rules could be implemented when local custom allowed the inclusion of a commercial ship under the category of the General Average.⁵² The last group of jurists declared the vessel is subject to contribution if it was established that her owner had jeopardized his vessel either by sailing in known tempest conditions or ignoring regulations against overloading. In both situations, the ship-owner had to reimburse the merchants for the damage they incurred if they protested against his irresponsible decisions.⁵³

Piracy, a formidable threat to merchantmen, preoccupied jurists throughout history. It gave rise to various scenarios in calculating General Average, with their accompanying legal implications. Jettisoning all or part of a ship’s contents would make her a less tempting target for pirates, as well as lighter and more manoeuvrable, improving chances for escaping attack. Jettison resulting from such circumstances fell under the rules of General Average.

An illustrative incident took place towards the end of the first half of the twelfth century C.E. A business letter from the Adenese mercantile representative Maḍmūn ibn Ḥasan, addressed to the Tunisian merchant Abraham ben Yījū, describes the arrival of imports from India, the jettisoning of part of the cargo en route to avoid a piratical raid, and the resultant distribution of losses among the parties engaged in the venture. An excerpt of the letter reads:

I, your servant, took notice (6) of what you – may God preserve your well-being! – wrote (7) concerning the shipment of 15 bahārs⁵⁴ of standard (rasmī – legal or official) iron (8) and seven bahārs of belts (?) of eggs. This is to inform you that the sailors (9) jettisoned some of the ʽeggsʼ when the pirates (al-surrāq) [approached] (10) the gulf Fam al-Khawr (alt. translation: on the mouth of the gulf). But I, your servant, already distributed it (the loss) (11) according to the freight of the ship, and I collected this for you.⁵⁵

From this account it can be inferred that in the classical Islamic world, piracy undisputedly gave rise to claims for General Average—pro rata—contributions from all parties concerned where the remedy was deemed applicable.⁵⁶ Muslim jurists decreed that General Average rules should not be applied unless the sacrifice in question was made, or the expenditure incurred, to ensure the common safety and common good, to save ship, cargo, crew, and passengers. Shipmasters, shippers and their agents, and passengers on board, who acted upon their combined reasoning to escape potentially dire consequences, shared the understanding that they were all bound by law to contribute proportionately to the value of jettisoned goods.

The most intricate legal cases, often requiring proceedings in rem (suing the ship as an independent legal entity) involved instances where pirates managed to capture a ship and either seize the cargo but free the ship, capture the vessel but release its cargo, or seize the craft and all her contents. Claims were brought to jurists by those who lost properties of a greater relative value than did others sailing on board the same ship.

Islamic jurisprudence distinguished between cases where the ship is recovered from pirates and those in which a shipper redeems his own goods. In the first situation, the travellers were obliged to contribute to a General Average, while in the second each cargo owner had to personally bear the entire expense of redeeming his commodities. Islamic jurisprudence further ruled that if pirates captured cargo but released the vessel, the cargo owners were to pay freight costs, nonetheless.⁵⁷ These principles applied under the condition that the threat of pirates could not have been anticipated, and that the ship sailed in ‘the known trunk routes’, without deviating from course.⁵⁸

Muslim jurists also addressed the assessment of a vessel’s value for contribution to General Average. From the Islamic legal viewpoint, not all equipment and rigging of a vessel were subject to contribution, rather only the value of tackle, essential to manoeuvring the vessel, factored into its calculation. The vessel itself would be valued as if intended for sale in its current condition. A ninth century formula for composing a ship’s sales contract by al-Ṭaḥāwī (239–321 A.H./852–933 C.E.) required the parties to indicate all the items essential to the ship’s ability to navigate on rivers or on the high seas.⁵⁹ Sales contracts generally included a full description of the ship’s type, external and internal structures, and equipment, including tackle, cables, ropes, baskets, nautical instruments, anchors, cabins, sails, masts, and levels.⁶⁰

To assess damage sustained through natural and manmade dangers and the vessel’s actual current value, learned jurists instructed judges to appoint experts in maritime technology and shipbuilding to examine a ship prior to repair. That is to say, the contributory value of the vessel was based upon her actual condition on arrival at the port of final debarkation.⁶¹ Once judicially mandated procedures were completed, if a ship-owner was required to contribute to a General Average, he had to pay the merchants in cash, or, if he did not have the money available, they would (involuntarily) become co-shareholders in the vessel. The owner could also offer his vessel for sale and thereby compensate them. Classical Islamic law also obliged a merchant to reimburse the ship-owner if the vessel was wrecked. If the former could not meet his obligation, the ship-owner would have a lien upon the merchant’s preserved and salvaged goods for General Average. The ship-owner was entitled to detain a quantity of cargo, not in excess of his entitlement, until receiving payment.⁶²

Another question arises as to where the assessment for contribution was to take place. Was the vessel to be valued in her current condition based on her value at the port of origin, place of jettison, her next port of call, or final destination? The great majority tended to estimate a ship’s monetary value on the basis of her current condition and value at her port of origin, i.e. the homeport. However, whether the parties involved were required to accept the highest or lowest valuation of the vessel is unclear, although if the ship were sold at auction jurists would normally consider the highest offer.

Summary and Conclusion

In Islamic jurisprudence, at least two requirements had to be met in order to apply the rules of General Average losses at sea: (a) the loss had to result from a common imminent peril: the craft herself, cargo, and humans—crew, shippers, and passengers—had to be at risk; and (b) the sacrifice was made voluntarily and in good faith for the common safety and interest of the ship and her contents in the face of immediate danger.

As a rule, an advance consultation among the crew and shippers prior to any act of jettison was required if time permitted. The heaviest goods were to be jettisoned first as long as they were accessible, regardless of their value. The vast majority of Muslim jurists excluded personal effects from being averaged. As for the assessment of jetsam, scholars generated four distinct rules regarding the determination of value for assessing the jettisoned cargo: according to its value at its place of origin, at the port of loading and embarkation, at the port nearest the jettison point, or at the port of destination. The great majority of jurists were inclined to assess jetsam on the basis of value at the port of origin on the day of sailing. However, they excluded port dues and customs payable by the lessors and lessees from the assessment of sacrifices, since, once paid, Islamic law treats them as non-refundable official duties.

Muslim jurists held different opinions regarding the vessel’s legal status in relation to rules of assessing General Average. One opinion excluded her by comparing her with a pack animal. A second opinion included both ship and tackle. Yet a third opinion stated that if it were established that a master jeopardized his vessel by knowingly sailing in adverse circumstances or ignored regulations against overloading, the ship would subject to contribution. Most jurists contended that if a ship were ruled as subject to contribution, then her value would be based on estimates of her value at the homeport.

Clearly, jurists maintained conflicting legal perspectives over issues regarding the rules of General Average loss and contribution. Prior to the nineteenth-century Ottoman tanzimat,⁶³ there were no uniform statutory rules codified in the Abode of Islam, unlike those instituted in the Justinianic Digest and the Rhodian Sea Law. As early as the second century A.H./eighth century C.E., Islamic jurists belonging to the same law school offered controversial legal opinions in particular cases or incidents. These differences in legal opinion within the same law school can be attributed to differences in customary local practice around the Mediterranean Sea, merchants’ customary practices, and the individual legal reasoning of jurists. In addition, the migration of scholars from the Islamic East to the Maghrib (West), may have led to the transformation of legal elements of Eastern origins, resulting in new precedents. When jurists encountered unprecedented matters, they frequently simply applied land laws to maritime affairs. On many occasions they issued rulings solely on the basis of analogy (qiyās); a ship was compared to a camel, and carriage by sea to carriage on land, as established in the prefatory statement of Chapter 2 of the Kitāb Akriyat al-Sufun.⁶⁴

Most importantly, since Islam’s birth, merchants played a vital role in the economy of the newly founded state as unprecedented commercial rules governing local, regional, and long-distance trade were established. Many principles of the Islamic ‘Merchant Law’ were first laid down by merchants and their agents, rather than by jurists, judges, and ruling authorities. Central and provincial governments played a very marginal role in creating and systemizing commercial practices, even though they were highly concerned with creating hospitable environments for facilitating trade locally, regionally, and globally. In the absence of written commercial contracts and explicit stipulations, jurists and judges would normally resort to merchants’ customs and practices.⁶⁵

As jurists belonging to the same school of law, but based in different ports, could differ in opinion, how could their rulings be honoured and binding? Was a shipper or merchant entitled to sue other parties in various ports and schools as he pleased knowing a qāḍī’s past rulings, expecting that he would adjudicate in his favour? On principle, misunderstandings between the merchants/shippers and ship-owners should be adjudicated at their destination, “if the judge is reasonably just”, regardless of his affiliation with a particular school of law. However, if the judicial authorities at the port of disembarkation were known as unjust, the lawsuit could take place elsewhere within the Abode of Islam. When a dispute arose among merchants only, they had to concur on where to resolve their disagreement. Judicial proceedings between a plaintiff and defendant take place in nearly any port or place, providing that the qāḍī was impartial: the port of loading or discharge, or the nearest port if the ship was underway, or the defendant’s or plaintiff’s place of residence, or the locale where the contract was signed.⁶⁶

If Muslim disputants sailed for a foreign country, any lawsuit should be brought before a Muslim qāḍī. In the absence of an Islamic judicial authority in a particular port, Muslim disputants may appeal to any Islamic court elsewhere. If a dispute arose between a Muslim party and an alien on board a ship that was heading for her home port or to another foreign country, it ought to be adjudicated at the destination, or as stipulated within any active treaties.⁶⁷

Irrespective of merchants’ sectarian affiliations, Muslim merchants saw themselves as part of the global Muslim nation (ummah). Therefore, disputants had to comply with a judge’s decision. His legal authority was duly respected and executed within and outside the Abode of Islam. Only appeal to a higher court could overturn judicial decisions of lower courts. Notably, unlike laws on land, the laws and customs governing maritime commerce invariably unified merchants and other parties engaged in shipping, despite differences across time and regions. Merchants, shippers, ship-owners, and seamen shared more common interests than those engaging in commerce on land. The basic principles governing qirāḍ (commenda), partnership, salvage, collision, and carriage of goods by water were shared among all engaging in overseas trade and shipping.⁶⁸ The rules and practices of General Average are but one example of how the lex mercatoria Islamica influenced merchant law across the Mediterranean from as early as the second century A.H./eighth century C.E.