The Nautical Republic of the Carrera de Indias: Commerce, Navigation, Casos Fortuitos and Avería Gruesa in the Sixteenth Century

Abstract

This essay analyzes some aspects of the relationships between merchants and seamen as they emerge from the handling of General Averages—averías gruesas—in the Carrera de Indias. The practice of General Average was underpinned by the concept that mutual aid and assistance were needed in shipping, even when travelling in convoys as was the case in the Carrera. The analysis of GA litigation in the Spanish Atlantic is a privileged window into the conflicts between two categories—merchants and seamen—and those institutions, such as the Casa de Contratación and those Crown officers who regulated Atlantic trade and navigation.

The research for this essay was conducted thanks to funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and Innovation Programme ERC Grant agreement No. 724544: AveTransRisk—Average—Transaction Costs and Risk Management during the First Globalization (Sixteenth-Eighteenth Centuries). Translated by Ruth MacKay.

“…when one sails, one entrusts one's fortunes

and things to the wind and the waves, and one's life

is three or four fingers away from death,

as close as a ship plank is wide”.¹

Diego García de Palacio, Instrvcion Navthica

This essay analyzes some aspects of the relationships between merchants and seamen as they emerge from the handling of General Averages—averías gruesas—in the Carrera de Indias. The practice of General Average was underpinned by the concept that mutual aid and assistance were needed in shipping, even when travelling in convoys as was the case in the Carrera. The analysis of GA litigation in the Spanish Atlantic is a privileged window into the conflicts between two categories—merchants and seamen—and those institutions, such as the Casa de Contratación and those Crown officers who regulated Atlantic trade and navigation.

The Carrera de Indias (sea route from Spain to America) was a multidimensional system lasting from the sixteenth century to the start of the nineteenth century. It was a highly dynamic maritime network built upon a regime of fleets and navies, usually sailing in convoy that was already consolidated by the 1560s.²

During the early modern era, the Indies route and the Atlantic were spaces in which the Hispanic monarchy forged a very specific economic, social, and cultural model of trade. This model developed its own norms and casuistry and was an interesting example of early globalization.³ Institutions, individuals, interests, and circumstances all came together under this operational model, and of particular note was the tandem of commerce and navigation. Both had decisive roles in the Indies trade, interacting in different ways, sometime in conflict and sometime in collaboration, depending on the circumstances, interests, and individuals. The visibility of these dynamics was channelled through two professional groups: merchants and seamen, both of which fought for economic advantage and social promotion through royal privileges, or any other sort of advantage which provided them with opportunities for upward social mobility.

The third protagonist of maritime commerce in the West Indies was the Crown, which played a critically important role in terms of establishing the rules of play and in mediating conflicts between merchants and seamen.⁴ Its participation took shape, on one hand through the royal officers that handled the fleet management and regulatory and tax-related aspects of commerce, and, on the other, through judges, in the positions of presidentes and oidores⁵—a different type of judicial figure—of the Real Audiencia de la Contratación of Seville who were in charge of the operational application of the commercial maritime system’s regulatory laws for the Indies.

This essay analyzes certain aspects of relations between these two groups. The relationship between merchants and seamen included collaboration, but also conflicts. Regarding collaboration, both parties contributed to the reduction of maritime risk through their own specific expertises. Merchants organized the Indies commerce and seamen provided the technical expertise related to navigation. Conflicts between ship masters and merchants, often reflected opposing interests as each side deployed different strategies to achieve their goals. Analyzing General Average within the Carrera de Indias brings these issues in sharp relief.

One might think that merchants were interested in trade and seamen were interested in ships, devoting themselves to the “art of navigation”. Nevertheless, the lines dividing these two professional groups were not always clear. Ship-owners (dueños de naos), maestres,⁶ sailors, and gunners all often conducted business aboard, generally on a small scale, though not in a professional or specialized manner. Indeed, it was a custom to reserve a small part of the hold for merchandise assigned to sailors and officers. Sailors were allowed to take on board, free of freight charge, merchandise for a value up to the men's wage. This was called the quintalada or pacotilla, for the sailors, while for officers it was called generala.⁷ At the same time, there were merchants who entered the realm of the seamen, becoming ship-owners, such as Francisco de Vivero, who was very active in the Indies trade during the sixteenth century.⁸ But aside from this, throughout the century these two worlds each had their own specific identity. Ship-owners and maestres made their living through freight charges, merchants made theirs by buying and selling merchandise. The latter pressured the former for the greatest amount of freight at the lowest possible cost, while the former wished to impose as many charges as possible on cargo ships.⁹

Both worlds, commerce and navigation, were represented in the uses and customs of the Carrera de Indias, which grew out of medieval practices and Castilian law and were inspired by the concepts of collaboration and mutual aid.¹⁰ Since ancient times, men had figured out ways to benefit from acting in concert, given the tremendous dangers of going to sea.¹¹ Alliances allowed them to increase their chances of successfully avoiding disaster for human lives and their economy. One such example was the medieval compaña marítima, an alliance between freight companies (fletadores) and ship-owners to undertake sea journeys. Members of this community were called compañeros and they followed norms that had been applied since the middle ages.¹²

This essay will show how the concept and usage of avería gruesa in the Indies trade was linked to the idea of mutual aid, and to mutual assistance on journeys by fleets of ships. Within the Carrera, three main concepts contribute to the costs resulting from a General Average procedure: the value of the cargo, the value of the ship and freight.¹³ Maritime customs such as considering the ship, the freight, and the cargo as a unit, or redistributing risk among all interested parties in the case of damages caused by imminent danger remained in use under the avería gruesa as it applied to sixteenth-century trade to America.¹⁴

In what follows I examine conflicts between merchants and seamen by studying those cases of General Average which generated conflicts and thus came in front of the court of the Casa de la Contratación in Seville. The Casa managed both the world of Atlantic commerce (merchants’ customs, and the exchange of goods), and issues related to navigation (monitoring of the route, technical condition of the ship, stowage of the cargo, pilot’s steering of the ship, navigation under unfavourable weather and those circumstances under which shipwrecking happened). Litigation related to General Average brings the dichotomy between commerce and navigation to the fore.¹⁵

The merchant-seamen duality developed in the context of an Atlantic system in which the Crown settled conflicts between parties. These solutions show us how actions by royal administrators or delegates were decisive for trade and navigation to the Indies. This is a crucial issue in our research in that the Casa de la Contratación was active throughout the early modern era in the Indies trade, though it also had specific peculiarities that deserve highlighting in comparison with other European maritime jurisdictions. Analysis of this type of litigation can therefore also contribute to the current debates conflict management and the handling of such strategies by individuals, institutions, organizations, and state powers.¹⁶

Documentary sources for this analysis come from the Archivo General de Indias (AGI). A section of the archive called Autos entre partes (lawsuits between parties) contains litigation with judgments handed down by the royal court of the Casa de la Contratación. The Casa de la Contratación had very broad judicial competence over individuals travelling to the Indies either with fleets or alone.¹⁷ I have selected those lawsuits brought by the maestres requesting a declaration of General Average and the obligation to contribute proportionately by all parties involved in the maritime operation. In addition, other lawsuits filed by the maestres in request of a double petition are included in this research: the declaration of the existence of casus fortuitus -particular damages in cargo- and, in addition, the declaration of a General Average, which implies the consequent obligation of the interested parties to contribute to the damages, according to their respective responsibilities and in a proportional manner. Both types of lawsuits amount to more than 100 cases from 1574 to 1669. There were thirty suits from 1574 to 1600, one-quarter of the total. What follows is based on this first group, though the remaining suits are being closely studied and will be incorporated into my larger research project.

In addition to the archival documents, I also have used early modern treatises. Writers such as the jurists José de Veitia y Linaje,¹⁸ Juan de Solórzano Pereira,¹⁹ and Rafael Antúnez y Acevedo²⁰ all shed light on the thicket of norms extending throughout the Carrera de Indias. Commercial treatises are also helpful in interpreting rules and regulations. Finally, sixteenth- and seventeenth-century treatises by experts on overseas routes including Pedro de Medina,²¹ Alonso de Chaves,²² Juan Escalante de Mendoza,²³ and Diego García de Palacio²⁴ offer valuable additional information, which has been incorporated into this essay.

The Carrera De Indias as a Space of Interaction for Navigation and Commerce

The Carrera was the main link between Spain and America during the early modern era, the main link supporting exchanges between the metropolis and its American colonies. Throughout the sixteenth century its component institutions were established and articulated: the Casa de la Contratación, founded in 1503, was the technical and administrative centre of trade²⁵; the Consulado de Comercio (also known as the Universidad de Cargadores) established in 1543, was both a representative assembly of merchants and an exclusive tribunal for commercial litigation²⁶; and, last, the Universidad de Mareantes, established in 1569, represented the interests of seamen.²⁷ The Council of the Indies (founded in 1524) was the most important administrative institution and sat just above the Casa de la Contratación in the hierarchy. The council advised the king and exercised executive, legislative, and judicial powers.²⁸

Seville and its port were the point of entry and departure for the fleets to the Indies.²⁹ Until the 1520s, the Carrera de Indias used individual vessels with no military protection. But the trans-Atlantic route was tempting for the empire's enemies, and a growing number of attacks by French corsairs on Spanish ships were making the trip more dangerous. Authorities began taking measures to prevent ships from travelling alone with no defence, and between 1520 and 1564 a system was devised in which navigation would be organized by convoys, with specially equipped armoured ships as escorts.

After four decades of experiments and plans, the definitive model for fleet navigation was finalized by 1564.³⁰ It had the advantage of regular departures, in theory once a year, from Seville. The New Spain fleet sailed to the Mexican port of Veracruz, and the other, the galleon ships, sailed to the South American mainland.

The New Spain fleet went from Dominica, in the Lesser Antilles, to Puerto Rico, where ships bound for San Juan separated from the rest. The remaining convoy then sailed along the southern coast of Hispaniola, where ships bound for Santo Domingo then separated. Further ahead they took on drinking water at the town of Ocoa, and later several ships would turn towards Santiago de Cuba or, a bit further on, the coast of Honduras (Trullo and Puerto Caballos). The rest of the convoy continued on towards the Gulf of Mexico, along the Yucatan coast, until reaching Veracruz and San Juan de Ulúa.

The second route, to Tierra Firme, sailed towards South America. Ships bound for the Venezuelan coast (Trinidad, Cumaná, Margarita Island, Cubagua, Caracas, Coro, and Maracaibo) sailed towards the south. Ships going to the Colombian coast and the Isthmus of Panama turned towards the ports of Santa Marta, Cartagena, and Nombre de Dios or Portobelo. Starting in 1564 Cartagena de Indias became an obligatory stopping-off point before reaching the isthmus. The Spaniards ceased using Nombre de Dios as a port in 1598, after which time they used Portobelo.

For the trip home, most of the ships gathered in Havana and travelled together through the dangerous Old Bahama Channel and then sailed to the Azores, where they rested for several days. From there they headed for Andalusia, turning west at Cape St. Vincent and arriving, finally, in Seville.

Journeys on the high seas across the Atlantic brought about important advances in cartography, astronomy, and the construction of nautical instruments.³¹ The Casa de la Contratación played a crucial role in the advance of navigational arts during the Renaissance.³² Even so, these new routes were clearly more dangerous and risky. Their long duration, the long distances during which navigators had no visual reference points, and the obligatory wintering in America forced merchants and seamen to address a greater number of unexpected situations.

Some of the maestres returning from their ocean voyages to Seville had suffered accidents at sea, either because they had had to throw cargo into the sea or because the cargo in the hold had been damaged by the storms of the voyage. On their arrival in port, they filed a claim in the Seville court for avería gruesa or, on some occasions, for a joint claim of caso fortuito y avería gruesa. In the lawsuits of the Carrera de Indias claims under the expression casus fortuitus—caso fortuito—mean lawsuits brought by maestres claiming payment for damages caused by storms to cargo or to the ship.

The etymological meaning of fortuito comes from the Latin word fortuitus, derived in turn from fors. According to Joan Corominas, very frequently throughout the Middle Ages and especially from the thirteenth century onwards, this word is found in the Consulat de Mar although the oldest documentation that records this term dates back to 1200.³³

The seafarer and maestre Escalante de Mendoza declared in the second half of the sixteenth century that caso fortuito related to damage to the ship or goods caused accidentally by wind or sea or some other event outside of human intervention. As the damage was accidental, not due to anyone's fault, it could not have been “taken care of or prevented by the hand of man”. In these fortuitous cases, no fault can be imputed to the owners, managers, or seamen of the ships. Therefore these types of damages were covered by insurance.³⁴

The maestres also used to go to the court of Seville to file claims for General Average. The term avería in the Spanish context has different accepted meanings, which can lead to confusion.³⁵ In the context of the Carrera, one must distinguish among its various meanings, especially between avería gruesa, the subject of this essay, and the figure generally referred to as avería de armada or avería de Indias. The latter was closely linked to overseas politics and the financing of the navies and fleets that travelled to America.³⁶

In the intricate Spanish landscape, the polysemous nature of the term avería means that researchers must have detailed knowledge and exercise great care when interpreting which of them is being referred to in a given document. We must also alert readers to a second meaning for the term avería gruesa, which concerns the just mentioned avería de armada, which is unrelated to the avería gruesa we are addressing in this research project. Rather, that concerns the specific cases, beyond the scope of our work, of navies or fleets that unexpectedly were forced to spend the winter in the Indies, triggering supplemental costs. These expenses were collected on the return voyage to the Iberian Peninsula, and this supplement was referred to as the avería gruesa or the avería de exceso, or even, in the seventeenth century, the avería vieja.³⁷ But our avería gruesa, unlike that one, is linked to the notion of degradation, damage, or loss, and it appears in the documents as avería gruesa, avería de echazón (i.e. jettison) or simply as avería.³⁸

Lawsuits before the royal court of the Casa de la Contratación in Seville were filed by seamen, generally by the maestre or, more rarely, by the ship-owner, against all the interested parties in the cargo of the ship. They petitioned the court to declare that during the voyage there had been an event leading to an avería gruesa. Once this declaration was confirmed, all parties involved with the merchandise as well as the ship-owner were responsible for the damages and must contribute proportionately according to their ownership of the cargo.

According to Juan Escalante de Mendoza, an experienced sailor and General of the Tierra Firme fleet in 1596, casus fortuitus might have several causes: wind, the sea, and other causes beyond men's powers. All these could damage the cargo and could even lead to the ship's loss altogether. The origin of such an event was, therefore, an accident, something fortuitous, with no human fault attached to it, something which was unavoidable and unpredictable.³⁹ In this regard the cosmographer and pilot Alonso de Chaves in his treatise Quatri partitu en cosmographia pratica also called as Espejo de Navegantes (c. 1537) referred to “unfortunate events and dangers that take place at sea” (infortunios y peligros que acontecen en la mar). This author offered valuable advice to the men preparing the ship, the cargo, and the crew before and during a storm, saying which were the criteria for jettison and what was the least dangerous way of cutting a mast.⁴⁰

The concepts of casus fortuitus and avería gruesa are closely connected with maritime risk management. In the case of the Carrera de Indias, the former had to do with damages to cargo during the voyage, damages to the ship, or extraordinary expenses by the maestre as a result of an unexpected event. In such a case, in order for an avería gruesa to be declared there must have been a deliberate attempt to save the ship and the cargo in the face of a known and effective danger. Furthermore, the result of such an attempt must be successful, meaning that at least a part of the ship and cargo were saved. The whole concept of avería gruesa was therefore connected on the one hand to the voluntariness of the act itself, and on the other to the common benefit of the maritime enterprise. However, if the caso fortuito had simply caused damages to the cargo or the ship, these damages were not listed as an avería gruesa, but as a “simple” or “particular” Average. Once the Tribunal had accepted the maestre’s declaration about the event, and thus freed him from any responsibility, these types of damages (and related expenses/losses) fell under the responsibility of their owner.

A typical example of avería gruesa would consist in jettisoning cargo because of a storm as the ship was in imminent danger of being wrecked. As a result of the lost merchandise, or of the maestre’s decision to save cargo and human lives or even the ship, the costs must be divided up among all participants of the voyage in proportion to their interests. Other examples of avería gruesa were when the ship, cargo, or crew suffered damages because of a corsairs’ attack.⁴¹ Fires onboard ships in the harbour could also lead to all parties to contribute when there was a decision to destroy one ship as a way of preventing flames from jumping to the rest. In that case, damage was caused in order to avoid greater damage, and therefore the other ships must help cover costs to pay for the destroyed ship, compensating in proportion to what was saved.⁴²

The regulation of General Average within the Carrera de Indias was rather succinct and focussed on three specific points. The article that covers in greatest depth and extension the institution of General Average can be found in the Recopilación de Leyes de los Reynos de las Indias, which in turn reproduces a 1556 disposition from the Ordenanzas de la Casa de la Contratación de Sevilla. This declares that the burden of the jettisoned cargo or the goods unloaded in the interest of all must be distributed through General Average. Moreover, any cargo jettisoned in the interest of all, any unloadings and lightenings of the ship in order to traverse the river up to Seville or other rivers, and/or any other common risks that may be incurred in, are to be considered under General Average. The ship, freights, and goods transported by the ship will contribute to cover the burden of General Average in ocasión forzosa—“forced event”—and at no fault of the maestre.⁴³

The second article, also found in the Ordenanzas de la Casa de la Contratación de Sevilla regulates the relationship between General Average and insurance, and states that under the insurance policy “the Average of damage or absence are to be charged to the owner, and General Average to the insurer”. The disposition continues declaring that any insured cargo arriving from the Indies must not be delivered with any damage, but, if that were the case, the cost of the Average must not be charged to the insurer, but to the shipper. However, under the circumstance of having a jettisoned cargo, the burden must fall on the insurers, as defined by the aforementioned article.⁴⁴ The third article excludes slaves and animals from General Average, although these can be specifically insured.⁴⁵

Merchants v Seamen: Two Professional Groups and One Enterprise

The powerful merchants trading across the Atlantic and all their less powerful brethren along the Carrera de Indias were always in close contact with seamen. They needed ships to transport their goods from one side of the ocean to the other. What was the nature of their symbiotic relationship? Some answers to this question can be found in the study of General Average within the context of the Carrera de Indias. Precisely in this océano de negocios⁴⁶ we discover the embeddedness of the commercial practices and customs of merchants with the arte de navegar, that is to say, with the navigational knowledge and experience of the Indies Trade seamen.

Commerce has always been one of the principal engines of human mobility, and from the start of the Carrera it was clear that the Atlantic might be a very lucrative sea indeed. The Crown made it possible for Castilian subjects to enjoy substantial benefits derived from trade and navigation to the Indies. That was made clear by Juan de Solórzano Pereira in his treatise Política Indiana (1648), where he wonders about the utility and wealth that commerce brought to the Catholic King's maritime cities. The risks faced by merchants in the Indies trade were not negligible given “the efforts they must endure, with great losses they tend to have, where they hope for growing profits … and their wealth often disappears and is ruined with greater ease than a spider's web”.⁴⁷ Clearly interested in incentivizing commerce, Spanish monarchs were keen to grant privileges and immunities to freighters: “… navigation and business have always been regarded as very useful to the Republic, and therefore it is ordered that in all well governed [Republics] they be helped and not hindered … those who squeeze merchants with rigorous charges [and] taxes are more cruel than shipwrecks and they make them more fearful of arriving in port than of sailing between Scylla and Charybdis”.⁴⁸ Privileges to merchants led to laws granting them exclusive jurisdiction to hear litigation and the ability to defend their interests before the Consulados de Cargadores.⁴⁹

The powerful freighters (cargadores) involved in the Indies trade from Seville established their Consulado de cargadores a Yndias in 1543, following the models of Burgos (1494) and Bilbao (1511). Seville was the site of a complex system of mercantile and financial networks extending to both sides of the Atlantic and part of the Pacific, in which Genovese, Portuguese, French, Florentine, Flemish, and Marseilles communities of merchants all played important roles.⁵⁰ Years later, consulados would also be established in Mexico City (1593) and in Lima (1613).

For the purposes of this essay, what stands out is the complex political and financial relationship between freighters and the monarchy owing to the Crown's acute financial needs. Merchants paid for defensive armadas against pirates and corsairs. And the Crown, when it found itself in economic difficulties, quickly adopted the custom of seizing most or all of the merchants’ precious metals arriving from America. In exchange, it reimbursed merchants at the losing end of this practice by paying them interest on the seized capital. These forced loans remained common during the seventeenth century. And in addition to taking the precious metals, the Crown often demanded that Seville merchants make special payments to cover the Crown's excruciating obligations, either as what amounted to donations or in exchange for royal favours.⁵¹

In the Atlantic world, anyone who could trade did trade, from the king down to the lowliest page. But it was one thing to trade a few tanks of wine loaded onto a ship by a sailor, and quite another thing to become a professional merchant. Cargadores were those who registered goods loaded onto ships, regardless of the quantity and time frame. Merchants, or mercaderes tratantes, were true Indies specialists.⁵² Most operated by obtaining loans, so that in the event of something unexpected such as jettison or an attack by corsairs, small and medium cargadores could easily be ruined.

Across from them when they litigated regarding avería gruesa stood the ship-owners and maestres. At least in the sixteenth century, ship-owners generally travelled on board their own ships, unlike the Portuguese, Dutch, or English ship-owners on their long routes.⁵³ The señor de nao was often also called capitán, and this role on board also used the title of captain. According to Pablo Emilio Pérez-Mallaína Bueno, ship-owners in the sixteenth century often were seamen themselves, and indeed influential and wealthy ship-owners in Seville such as Juan Rodríguez de Noriega, Cristóbal Monte Bernardoand Andrés de Paz travelled on board their ships. Aside from these wealthy ship-owners there were more modest ones who perhaps owned part of the ship or a smaller vessel, and they too travelled on board, where they could keep an eye on their interests. In the sixteenth century, the presence of these ship-owners was made possible by the relatively small average tonnage. During the first half of the century, the average tonnage was 100, which rose to 200 in the second half. There also were pilots who owned ships, either totally or partially. Pérez-Mallaína states that in the sixteenth century between 40 and 50% of ships had owners on board. When that was the case, the owner normally assumed one of the three leadership posts on board: some were pilots, but most were maestres or captains. In the latter case, owners had honorary command of the ship and were accompanied by a maestre who conducted administrative tasks under the owner's supervision. But owners on board also made important decisions. Their presence on ships bound for the Indies diminished gradually throughout the seventeenth century and ownership gradually shifted to commercial capital, which took control over the shipping business. The decline of Spanish maritime commerce led to the concentration of wealth in the hands of the wealthiest, who tended to be the most privileged businessmen in the Consulado de Comercio, and they ended up taking over maritime commerce. Meanwhile, the less important ship-owners slowly disappeared as the size of ships grew and it was increasingly difficult for them to come up with enough money to become owners.⁵⁴

According to Diego García de Palacio's Instrvción Navthica (1587), owners must be good, God-fearing Christians. Given the great diversity of men on board a ship, it was necessary that the ship-owner be wise and discreet, and if a crime were committed on board he must hear the case using reason and wisdom. In order for “things to be harmonious and God not offended”, he must always be on the alert and watching out for everyone. To round off this list of virtues, García de Palacio did not fail to mention that a ship-owner must be careful with the cargo on board the ship so as to avoid the feared averías.⁵⁵ But the most important person on the voyage from an organizational perspective was the maestre. He was the plaintiff in suits over avería gruesa, which meant he bore the weight of the proceedings. He was the first officer on a merchant ship, arranged loading, hired the crew, obtained supplies and food, and was in charge of administrative paperwork and accounts.⁵⁶ Maestres were the keystone of the entire Carrera de Indias system, and their multiple tasks were centred in three principal areas: technical knowledge regarding navigation and crew management, business knowledge, and legal knowledge. The lives of everyone on board and the survival of the cargo depended on their abilities and experience.⁵⁷

The agreement between merchant and maestre to transport merchandise was materialized with the signing of a freight contract. According to this contract, the owner or maestre of a ship committed to taking the cargo from one port to another for an agreed-upon price.⁵⁸ Relying upon criteria of utility, the law allowed a ship to be chartered with not just the owner but also with the maestre. For the purposes of accepting the cargo, both were considered as one and the same. Merchants could also operate through the Consulado, making them responsible as if they themselves had chartered the ship.⁵⁹ When the king himself wished to charter part or all of the ship, the Crown had preference over any merchant or other party, given that public needs had priority over private needs.⁶⁰ A royal licence was required to load or unload anything on land or at sea, or from one ship to another, be it day or night. This was the responsibility of the maestre, sailors, or merchants under penalty of confiscation of all the cargo. The only exception was if the ship arrived in port con fortuna (accident at sea) or fleeing from enemies, in which case unloading was authorized in the absence of a licence as long as royal officials were informed later on.⁶¹

The maestre’s greatest responsibility was to ensure the custody and safety of the cargo until arrival at port.⁶² He was to receive the goods at the shore and return them when unloading, unless there was an order or custom to the contrary.⁶³ The laws of the Indies enumerated where cargo could be stored beneath deck so as to avoid over-loading. The deck should remain open, carrying only water, supplies, passenger trunks, and weapons. The boat should also remain empty. The tolda, or second deck, should also be free of cargo, and the artillery areas should be empty except the sailors’ trunks and the cannons.⁶⁴

If the ship and cargo were lost, or if the ship were unable to make the journey, the entire freight was not owed, just the correct proportion of what was actually saved, and only up to the point when the loss occurred. If the ship after leaving port returned to the same port, even in the case of casus fortuitus, the freight also was not owed. But if the ship arrived at another port along the way, in that case it did have to be paid.⁶⁵ Payment of the ship's freight was generally made in the week following the ship's arrival at port. When the maestre arrived, he quickly moved to hand over the merchandise and collect the ship’s freight. By law, he was authorized to hold onto the cargo until being paid. In the Carrera, freights (fletes) generally were registered by a notary public or before royal officials, according to the bill of lading.⁶⁶

Just as merchants had their Consulado de cargadores, seamen had an association to defend their interests and help them argue before the king, the Casa de la Contratación, or the freighters themselves. The Universidad de Mareantes (1569) was a guild-like association of ship-owners, maestres, captains, and pilots working the Carrera de Indias. It was associated with the Confraternity of the Virgen del Buen Aire, and exercised great authority on many issues concerning navigation.⁶⁷ These included when fleets should depart; carpenters and caulkers guilds; tonnage (arqueo); expert opinions on preparing ships before they began their voyage; navigational instruments; examinations for pilots and maestres at the Casa de la Contratación; and choosing ships appropriate for the trip across the ocean.⁶⁸ The Crown benefited from the organization's technical advice, though the Universidad did not attain the same level of influence as that of merchants, given seamen’s lower economic standing.

The Scene of Conflict: Lawsuits Regarding Casus Fortuitus and avería gruesa Between Merchants and Seamen

Management and resolution of conflicts between individuals or institutions were consubstantial with public governance and the urban corporate structure. Both were more or less based on pre-established legal or quasi-legal models and legitimized by conventional judicial parameters.⁶⁹

In our case, it is instructive to analyze conflicts between merchants and seamen in the Indies trade related to the context of General Average.⁷⁰ There have been many historical studies of conflicts between merchants, but seamen and the range of their activities have not properly been taken into account in the Spanish bibliography.⁷¹ This is especially true within the Carrera. Both individuals (merchants and sailors) and the institutions involved in settling disputes (Consulado de cargadores, Universidad de Mareantes, Casa de la Contratación, and Council of Indies) are perfect stages for their analysis. The suits argued before the royal court of the Casa de la Contratación, along with other means for trying to resolve, contain, or mediate maritime merchant disputes offer an excellent opportunity in this regard.

The Carrera de Indias system featured a centralized royal jurisdiction.⁷² The Casa de la Contratación from early on had civil and criminal jurisdiction over commerce and navigation in the Indies. Among other competencies, they resolved differences among merchants, agents, and maestres concerning companies, freight, insurance, and contracts.⁷³ Moreover, a 1597 disposition allowed authorities of the Indies to rule over General Average claims, declaring that causes about jettison or General Average were to be settled before ordinary justice or royal officers. The text of this disposition mentioned that

if any warship or fleet during a storm were to jettison cargo, artillery, anchors, cables, boats or other rigging of the ship, or were to receive any harm from enemies, and if any maestre were to claim casus fortuitus or General Average to the owners of the salvaged goods in order to share the damages, all of the above must be ruled over in the Indies before the land justice or before our royal officers, who will determine justice in accordance to law.⁷⁴

Quickly the increasingly powerful organization of freighters asked the king to allow them to create a Consulado with its own jurisdiction over matters concerning commercial trade. The Consulado of Seville was authorized to decide matters concerning purchases, sales, exchange, insurance, and freight. In the cities of Burgos and Bilbao the consular tribunal had been the only one to intervene in mercantile and maritime matters, which allowed merchants to resolve their litigation independently.⁷⁵

The establishment of the Consulado in Seville in 1543 meant that the Casa de la Contratación lost some jurisdictions related to the Carrera de Indias. Jurisdictions were fixed in 1583, an arrangement that lasted until the eighteenth century. In the charter of foundational privileges of the Consulado of Seville, the Prior and Cónsules—main representatives—were authorized to judge over any differences and claims concerning matters of trade and cargo from the Indies between merchant to merchant, companies or factors, on sales, exchanges, insurances, accounting and companies, ship freights, agency agreements, not only in Spain, but also in the Indies, and any matter related to trade and commerce with the Indies.⁷⁶ As a result, the Consejo de Indias—Council of Indies— became the only appeals court for matters involving more than 600,000 maravedíes, in an attempt to reduce litigation and leave only lawsuits involving large sums of money to the Council of the Indies. For lesser amounts, it was the Casa de la Contratación that heard appeals. Thus the only courts to hear cases concerning the Indies were the court (Real Audiencia) of the Casa de la Contratación de las Yndias, which heard both civil and criminal cases; the Council of Indies, which heard appeals; and the Consulado of Seville, which heard strictly mercantile matters.⁷⁷

According to this division of labour,⁷⁸ starting in 1543 the Consulado should have been the only court to hear cases concerning avería gruesa. And yet, that was not the case. Even after implementation of rules governing consular judicial competencies, the Real Audiencia of the Casa de la Contratación continued hearing matters that were clearly mercantile and therefore clearly belonging to the merchants’ jurisdiction. The autos section of the Archivo General de Indias shows that the Casa de la Contratación's court after 1543 heard cases regarding payment for merchandise, freight charges, averías awaiting payment, taxes and fines, contracts, etc. Looking in more detail, we see that the court resolved some 120 suits for averías gruesas that should have been heard by the Consulado, and furthermore that the Consulado's archives contain no complete lawsuits concerning averías gruesas for the Indies routes, though there are some for routes to Northern Europe and the Mediterranean.⁷⁹

The question then becomes why the Casa de la Contratación kept jurisdiction over these matters, which strictly speaking were mercantile, and why the parties went to the Casa rather than to the Consulado, where both jurisdictions were compatible and able to settle conflicts over averías gruesas? We can suggest several explanations.

First, the Recopilación de Leyes de los Reynos de las Indias states that litigation by ship-owners, maestres, and sailors was the exclusive jurisdiction of the Casa de la Contratación in the first instance “with other jurisdictions having no competence”, appeals were to be made to the Council of Indies.⁸⁰ Cases involving casus fortuitus and averías gruesas in America would be heard before royal officials or justicias de tierra.⁸¹ Therefore, if jurisdiction over averías in America was farmed out to extraconsular courts, in the peninsula the Casa de la Contratación's court could similarly claim jurisdiction, which would make sense, given that averías gruesas were related to circumstances intimately linked to navigation and technical aspects of ships, navies, and fleets. The court with specialization in these matters was clearly the royal court of the Casa de la Contratación. After all, who better than its judges to decide if a ship docking in a port off its scheduled route was a malicious act? Or if the maestre had done everything possible before deciding to jettison goods in the midst of a storm? The Real Audiencia had sufficient powers and authority to claim jurisdiction over any proceedings or investigation conducted in American or peninsular ports by royal functionaries concerning Averages. It was the perfect site for understanding the interstices of the complex and hyperbureaucratic world of the Carrera de Indias.

Throughout the early modern era, one of the biggest headaches for authorities was jurisdictional conflicts among individuals or institutions with judicial competencies. It was usual for different entities to claim authority over the same thing, leading to endless disputes until it was finally determined who should hear the suit. Ports were strategic and sensitive spaces over which many such disputes took place. A multitude of authorities had a stake and was frequently at odds: governors, customs officials, naval officers, port captains, local administrators and, in the case of Seville, the royal court at the Casa de la Contratación and the Audiencia de Grados.⁸² So the overlapping jurisdictions of the courts connected to the Casa and the Consulado concerning averías gruesas in the Indies trade was certainly nothing new.⁸³ Ana Belem Fernández de Castro has argued that rulings of the Casa judges were perfectly suited to the needs of ocean navigation and long-distance trade, reducing operational costs and ensuring that contracts would be respected.⁸⁴

It is logical that maestres and ship-owners favoured the royal court, which offered greater guarantees of a sympathetic hearing. If they filed complaints before the Consulado court, seafarers were perfectly aware that their possibilities of success were reduced. In suits concerning averías, the merchant-judges of the Consulado were resolving disputes between their own colleagues and seamen, so logically the latter would want to file their demands before more impartial third parties.⁸⁵

There are additional possible reasons that are equally important. Judges at the Casa de la Contratación were experts in both commerce and navigation, and suits over averías gruesas concerned both. These royal functionaries knew a great deal about preparing fleets and about navigation in the Indies, and they had the necessary abilities and experience to be impartial arbitrators.

We could even say that the Consulado's judicial procedure was an imitation of ordinary justice, and litigants preferred the original to the copy. Even considering that consular litigation was theoretically quicker, usually oral, and did not require the participation of a licenced lawyer (letrado), these same factors might have a negative impact when it came to resolving avería gruesa. Given that litigation was generally complex, involved many parties, and was interlaced with trailing lesser cases linked to the principle case, it was often difficult to adequately fit it within existing consular judicial principles.

Thus, in line with Fernández de Castro's argument, which is fully applicable to our case, the royal court at Seville's Casa de la Contratación was the venue for resolving avería gruesa cases for the Indies trade. It offered judicial procedure that was attractive to litigants and based on ius commune. Royal judges acted as if they themselves were monarchs, following principles of justice and Christian values of mercy, kindness, and pardon.⁸⁶ Juan de Solórzano Pereira provided a good example of these Christian virtues when he stated that merchants who had suffered losses should not be allowed to compensate for the lost goods with salvaged goods, “because they must suffer and endure equally their good fortune and their bad fortune”.⁸⁷ He pitied the freighters in these cases, saying that those who suffered should not be made to suffer more with prison sentences on account of shipwrecks or wars. When Solórzano served on the bench at the audiencia of Lima, he released a merchant jailed there for debts, having lost everything he owned during a shipwreck.

Royal judges, then, had a great deal of latitude for resolving suits relying on their own notions of justice and on their conscience. Discretion was the basis for the entire Castilian jurisdictional system, and sentences were neither explained nor justified, which gave magistrates greater freedom.⁸⁸ Additional individuals carried out important functions in the realm of royal justice, adding great assurance; suits over avería gruesa might involve a prosecutor defending the king's interests,⁸⁹ or a “defender of the absent dead”, who represented victims and those unable to be present at court.⁹⁰ The jurisdictional model also included a phase for presenting evidence so as to arrive at a verdict.

It is interesting to note that in these sorts of suits, the Consulado de Cargadores itself would often appear as a litigant, defending the interests of the guild. It was present in fifteen of the thirty suits I have examined thus far.⁹¹ The Real Audiencia always authorized its appearance despite protests from the seamen, who challenged its legitimacy and argued that the Consulado was not a direct party with interests such cases.⁹² The fact is that the Consulado's participation in avería gruesa suits tilted the balance somewhat to the side of merchants, especially if we take into account that seamen, despite having their own Universidad de Mareantes, did not avail themselves of it in litigation, though the seamen's Universidad did participate in other judicial proceedings.⁹³ So we can see that merchants and seamen often both turned to the courts.⁹⁴ Knowing how to litigate was as important for freighters and navigators as knowing about accounts, ship gaging, or ship stowage.

Along with judicial conflict resolution, merchants and seamen had other strategies for resolving disputes. The most frequent involved extrajudicial arbitration to which both parties agreed.⁹⁵ Such agreements could be made aside from, before, or during the suit itself; often while there were heated arguments going on at court, perfectly civil conversations were taking place on the steps of the Seville marketplace so as to put an end to the dispute.⁹⁶ The parties might reach an agreement on their own and then ask the court for orders regarding those sections that had not been complied with.⁹⁷ Both strategies were plausible and legitimate ways of achieving the best agreement for both sides. One of the benefits of arbitration was that it was quick, inexpensive, binding, and a form of pacification. Arbitrators acted as judges and at times they created law. Both sides generally chose the third party by consensus, though that choice might reenact conflicts between them. For example, in the dispute between Pedro Araneder, owner and maestre of the ship Santa Ana, and merchants with claims to the cargo on board from Havana to Spain, the maestre named another maestre to be the arbitrator, and the merchants named another merchant.⁹⁸

One peculiarity of Indies cases is that decisions were enforced by the constables of bailiffs (alguaciles) of the Casa de la Contratación. The ruling of an arbitrator was executive and could be executed by either of the parties in a summary procedure. In 1588 Gonzalo Pérez, maestre of the ship Santa Cruz, asked the Audiencia to execute an agreement he had reached with interested parties in the city of Santo Domingo. According to that agreement, all parties had agreed on a 50% payment of jettison expenses, prorated to their respective share. The maestre presented the agreement in Seville against those parties who had not complied with their share.⁹⁹

Sentences were quick, as procedural formalities, limited judicial personnel, and long arguments were not factors. In cases of averías gruesas, bills of lading for the cargo in question issued by public notaries or Casa officials amounted to executive title.¹⁰⁰ These legal documents were often presented by merchants to ordinary courts (Audiencia de Grados, in Seville,¹⁰¹ or other first-instance courts) or to the Real Audiencia de la Contratación so as to force maestres to immediately hand over the goods. If the seamen were not able to deliver the cargo or make payment equivalent to its value they were immediately imprisoned.¹⁰² This legal tool was a means to push for a settlement and obtain better terms for freighters.

There were clear advantages to arbitration but it was not infallible and at times did not lead to a satisfactory solution for both sides. In cases of averías gruesas there were instances in which distributions by third parties (las cuentas sobre avería gruesa) were challenged by other interested parties. Even so, when arbitration was chosen as the means of settlement, the final decision, to be executed by the court itself, was also accepted.¹⁰³

Suits for Avería Gruesa Before the Royal Court at the Casa de la Contratación in Seville

In general terms, avería gruesa suits before the Casa de la Contratación were filed by ship-owners or maestres against those involved in transporting cargo on ships to the Indies.¹⁰⁴ Maestres were more often the main actors because they were most familiar with the circumstances of the voyage and could better represent their own interests. They generally had the capacity to represent the ship-owner, and the latter was bound in solidum by the maestres’ acts.¹⁰⁵ Sometimes the maestre would grant powers to the ship-owner to represent him, and the latter would take responsibility for court appearances, allowing the maestre to continue sailing and trading.

Suits began with a document identifying the plaintiff, the ship, the route, the sort of navigation (with a fleet or alone), and the year of the voyage, then followed a succinct summary of the circumstances leading to the avería gruesa. The petition ended with demands that avería gruesa be declared, that the maestre not be held responsible for damages to the cargo, and that all interested parties share the costs and expenses as a result of the events. Sometimes when cargo was damaged by an unanticipated event, the maestre asked the court to order the merchants to receive the goods in the state in which they had arrived, and that the freights be paid for the entirety with no discount.

This demand marked the start of the suit proper. Each party appointed a legal representative who would appear for them in court. In those cases in which part of the cargo was silver belonging to the king,¹⁰⁶ it was the royal prosecutor who appeared, speaking in defence of the Crown's interests. The same thing happened in cases of “defence of the dead and the absent” (Defensor de los muertos y ausentes) due to the death of merchants or the absence of individuals who could not be advised of the litigation. In the case of ships whose holds were full of goods for the Indies there often were a huge number of merchants involved, some of the powerful men and others less so, responsible for smaller amounts of goods. The multitude of owners of goods turned suits over averías into an endless series of notifications regarding every step of the process. Sometimes, to save time and money, a more or less large group of merchants would simply appoint one of their own to represent them at court.¹⁰⁷

The suit continued with defence briefs followed by the presentation of evidence, when the parties backed up their allegations with proof, usually documents or witness testimony. Then there was a final summation, and litigation was closed with the court's ruling. In cases of avería gruesa, if the court sided with the maestre, then the parties chose one or more third-party calculators to work out the division of payments.¹⁰⁸ These men were experts in accounting and the Indies trade, and both sides trusted them to draw up an agreement, a task that required them to be professional, fair, and exact. Sometimes we find the same men involved in multiple avería gruesa cases, showing that it was a field of great specialization; among these men were Julio Ferrufino,¹⁰⁹ Julián Izquierdo,¹¹⁰ Diego Pérez de Porras,¹¹¹ and Andrés Franco.¹¹²

In this division of payments (repartimiento), interested parties were assessed proportionately to the affected cargo. The document drawn up in this regard was considered to be executive, and once it was presented to the court both sides were expected to comply. The suit could end there, though that was not often the case. Given the large number of merchants affected by avería gruesa in any given ship there were always some who did not pay what they owed. This led to a new phase, or secondary suit, in which the court issued payment orders and possibly orders to seize and auction off goods belonging to the merchants in arrears. Once everything owed had been collected, it was given to the maestre. All these proceedings could go on forever, and though they were necessary they ended up making the process far more expensive.

These, then, are the outlines of avería gruesa suits in the Carrera de Indias. There were cases in which hundreds of merchants were involved, in which the evidentiary phase took months to complete, and in which collateral questions were added to the suit, creating secondary suits. Given that ships often travelled in convoys, if a storm attacked, say, in the Old Bahama Channel, it was likely that several ships would declare averías gruesas. As a result, the relevant litigation would end up before the court at the Casa de la Contratación.¹¹³

In saying that averías gruesas provide a window onto the world of the Indies trade, we do so with amazement at the complexity and dynamism of this océano de negocios and the abundance of information we can acquire through this study. Averías gruesas allows us to talk about issues that are basically mercantile: how freight was charged and ship-ownership transferred, about registration certificates, identification and the types of marks on the products, economic assessments and delivery, pricing, taxes in American ports, how agents and consignees behaved, claims regarding delivery, discussions about damaged goods, the deeds of sale and settlement, and collections.

But these suits also reflect maestres’ navigational responsibilities such as fitting out ships, choosing the best ship for a given voyage, the correct loading of cargo in the hold, deciding which objects could be taken on deck, knowledge of the route and the best way of navigating (alone or in a convoy), the necessary licences for going to the Indies, inspecting the objects and crew, the legal issues behind going into port on account of storms or casus fortuitus, crewmen's demands for wages, and his pilots’ duties if ships were lost. The range of matters that a maestre had to attend to was broad, and they all concerned maritime laws and uses. He was in charge of the operations surrounding the ship. In the sixteenth century, the Crown frequently sequestered ships for military purposes as capitanas or almirantas in the Indies fleet. These ships were especially strong, easy to navigate, or had recently left the shipyard. Naos boyantes y marineras (in a very good shape for sailing), they were excellent candidates for becoming naval vessels. Two ships escorted the rest of the merchant fleet, and though there were laws prohibiting their use for commercial purposes, in fact part of their holds was used for exactly that. That is where the treasure was stored, including silver belonging to the king or to individuals and other precious products such as gold, silk, porcelain, grains, and cochineal. These two ships bore, respectively, the fleet's captain general and the admiral.¹¹⁴

Sailors’ Wages and Freight Payment in Cases of Casus Fortuitus

One of the maestre’s first duties upon reaching port was to pay his men's wages. According to law, payment must have been made within three days after arriving at destination. Wages were considered to have preference over other debts, and if they were not paid the maestre was taken to jail until they were. If the wage agreement with the crew or the amount owed was unclear for any reason, this might later be part of the evidence phase of litigation for avería gruesa and would be considered summarily and with precedence. Until the dispute was resolved, sailors were to be fed by the maestre.¹¹⁵ Maestre Francisco Martín Rucho, for example, returned to Seville in 1575 on the Nuestra Señora de la Concepción after a very troubled voyage that was an economic disaster. His debts were so ruinous that he asked the court to sell his ship in order to pay his crew's wages.¹¹⁶

Regulations provided that seamen be paid once the trip was over and they were back in Spain. But high desertion rates on the Indies route were such that the custom was altered, and men were paid half their salary on their way to America, and the other half once they were back in Seville.¹¹⁷ But if the ship suffered an accident, avería gruesa, or forced landing, then the crew's ability to claim their wages might be affected. That is what happened in 1581 when the sailors and cabin boys on the San Miguel went to court. As a result of an avería gruesa, maestre Andrés Ferrufino had been unable to get payment for the freight. The sailors were far away from home, they hadn't been paid, and they were waiting for the litigation to resolve, “because by law our labour, whatever it be, must be paid”.¹¹⁸ Similarly, in 1596, when the San Buena Ventura, whose maestre was Pedro de Veiztegui, arrived in the Cuban port of Bayajá in very bad shape, the governor of the island filed suit to determine if in fact there had been a casus fortuitus forcing the ship to change its route. In that same lawsuit, sailors asked that half their wages be paid there so that they could remain free and continue their voyage.¹¹⁹

Shipwrecks and Fleet Captains General: The Peculiarities of the Indies

Shipwrecks were included within averías gruesas for navigation to America. Generally, after a wreck there were legal proceedings to determine responsibilities, especially of the pilot and the maestre.¹²⁰ But in some cases, the maestre and/or owner of the ship might go before the royal court to ask that all interested parties contribute.

The voyage of the Santa Ysabel in 1580 under the command of Captain Martín de Montebernardo ended in a shipwreck when it was travelling from Nombre de Dios to Cartagena de Indias.¹²¹ Shortly after leaving port, she quickly began taking on water, prompting the captain general, Cristóbal de Eraso, to order that the cargo be transferred. That operation took some twelve hours, during which the king's silver was passed over to another ship, while the silver belonging to other individuals remained on land, in Cartagena. All these steps were properly recorded by a royal notary. Montebernardo's ship ended up at the bottom of the sea after all its human and material resources had been devoted to saving the silver belonging to the Crown and to individuals. Had the crew instead devoted their efforts to repairing and salvaging the ship, sacrificing the cargo, the ship might have been saved. But in these cases, the economic value of the saved goods was the priority, because the value of the cargo far and away exceeded the value of the ship and its riggings. In short, the ship was sacrificed to save the cargo. According to Montebernardo's statements in the avería gruesa suit, heard by the Casa de la Contratación, for the past forty years the custom had been that owners and maestres of ships might put their ships in danger and let them sink or flood while fighting to save the gold, silver, pearls, and merchandise whose loss would add up to far more. In such a case, the value of the ship, her sails and rigging must be divided up as avería gruesa among everything saved. That was the opinion of the court, which ruled that it was a case of avería gruesa and that all interested parties pay the value of the ship and its rigging.¹²² Such cases bring into sharp relief the peculiarity of Genereal Average proceedings within the Carrera de Indias, primarily about the effects of sailing in convoy, and the consequence option to sacrifice ships to save the more valuable cargoes.

Something similar occurred with the San Miguel in 1589 in shoals by Punta del Diamante, near the bay of Cádiz. The ship was forced to manoeuvre towards the beach so as to save its goods, but the ship was lost. The court declared avería gruesa and obliged all interested parties to pay towards the value of the ship, plus the rigging.¹²³ Decisions taken by the captain general were of special significance in cases of complicated navigation, when choices had to be made that might endanger survival of the crew and the cargo.

According to Juan de Hevia Bolaño, captains general had the same powers as the king and were supreme commanders of the fleet.¹²⁴ Their training was military, though not necessarily with the navy. They were chosen among many candidates for each expedition; the first round was picked by the Casa de la Contratación and the finalists by the king and the Council of Indies.¹²⁵ Their wide range of responsibilities on board gave them enormous power.¹²⁶ Among other tasks they were exclusive judges for all civil and military matters on the convoys. Their principal function was to ensure the safe return of the fleet to Seville with all the treasure and private cargo on board. It was a military job that required great experience and knowledge of the sea.¹²⁷

They also had to ensure that the navigation in convoy complied with established norms and regulations. If a ship had a problem and took on water, lost a tiller, or damaged its masts, the general or any other war commander should attend to it to avoid the damage growing any worse. But if, despite all the measures taken, the damage was such that the ship itself was in danger, the commander could order that human lives, the king's treasure, merchants’ goods, supplies, munitions, artillery, and weapons all be saved. Organizing this operation was not simple, and the commander had to prevent bad behaviour, theft, and robbery and make sure that all damaged goods were properly accounted for. Both the cargo and the human beings were divided up among the other ships, according to the general's orders.

The case of Nuestra Señora del Rosario is an excellent example of the repercussions on the Indies trade. The captain general of the fleet was Francisco Coloma.¹²⁸ The ship in question had left San Juan de Ulúa in 1594 bound for Havana carrying skins, grain, indigo, silk, silver, reales (coin), and other goods. Coloma decided that the fleet should winter in Havana, given the imminent danger of an enemy attack, but a decision of that nature was a disaster for trade. The silver and remaining cargo was unloaded to be stored in warehouses, but some of the skins were left exposed to the air once the warehouses and storage areas were full. Maestre Cristóbal Coello was forced to spend extra to stack and shake out the leather so it would not rot during the wet winter. Extra money also was spent on the ship's hull given the huge amount of rain that winter. Finally, when it came time to make the return voyage to Spain and the maestre had the loaded ship ready to leave, Captain General Coloma ordered Coello to remove part of the cargo to make room for the silver belonging to the king and to others, turning the ship into a war ship. Coello divided up the cargo among three other ships in the same fleet.

During the return voyage, the fleet encountered big storms, and the main mast of the Nuestra Señora del Rosario broke. The maestre ordered his men to cut the rigging along with part of the sails, a top mast, an anchor, and other items, which were all thrown overboard to save the lives of the crew. The silver was passed to the other ships, and part of the less valuable cargo remained in the hold. Once the sailors saw the silver being moved to safer ships, they decided to abandon ship. Only after negotiations and an offer of 3,200 ducats from the maestre were the men persuaded to stay and, though their lives were in danger, return on it to Spain with the broken prow, no main mast, no tiller, and obliged to continually bail out water. Miraculously, the ship managed to make it back to Seville.¹²⁹

There were multiple instances of avería gruesa in the case of the Nuestra Señora del Rosario. It was an economic disaster. The expense of spending the winter in America, transferring cargo ashore, or passing it over to other ships in the middle of a storm, along with the costs of paying off the crew to not abandon ship was all included in the petition before the court in Seville asking it to declare casus fortuitus and avería gruesa. The royal court at the Casa de la Contratación ruled in favour of the maestre’s requests and ordered that the costs be divided up. The suit took no less than thirteen years to resolve, with more than six hundred pages of documents.

In 1595 General Fernando de Lodeña ordered maestre Rodrigo Madera to jettison part of the cargo of his ship—the Espiritu Santo—in order to make space for the king's silver. The order was delivered by the captain of another ship that had been seriously damaged during a storm. Madera made it clear that he was opposed to the jettison and that he was obliged to comply only because the order had come expressly in His Majesty's name.¹³⁰

Leaving aside jettisons and load shiftings, one of the strangest cases of avería gruesa is that of the Nuestra Señora de Begoña, the leading ship of the 1594 Tierra Firme was under the command of its maestre and owner, Agustín de Landecho. The ship carried silver and goods from San Cristóbal de la Habana to Seville. Upon navigating near the Old Bahama Channel she ran into a storm, forcing the crew to cut the main mast and lighten the rigging. The ship docked in San Juan, Puerto Rico, right when the corsair fleet of Sir Francis Drake was in the vicinity, ready to attack whichever port Landecho's ship might be in. The fleet general, who also was governor of the island, along with other authorities decided to deliberately sink the ship so as to block entry into the port and thus protect the city from enemy attack. The silver was transferred to frigates being fitted out in port.¹³¹

As a result of Landecho's subsequent suit demanding avería gruesa, the captain requested 21,000 ducats, which he said was the ship's worth. The Consulado de Mercaderes, a party to the suit, alleged that the ship's value must be divided up not only among the interested parties of the cargo but also among the inhabitants of San Juan, along with the city itself. The argument was that the city's people and property had benefitted from Landecho's sacrifice. The city had not been sacked and, as a result, it should help pay the expenses along with the merchants. The Contratación court declared avería gruesa and forced the merchants to pay 13,000 ducats for the ship and another 2,500 for the main mast and rigging that previously had been jettisoned during the storm.

Of the thirty avería gruesa suits I have examined thus far, eleven include the involvement of captains general regarding commerce. This is still a provisional percentage, yet nonetheless highly revealing concerning the interaction between commerce and navigation and the impact of royal agents in these affairs. Even though their post had been created to resolve matters concerning fleet navigation, decisions by captains general often deeply affected commercial interests.

Conclusion

The institution of avería gruesa, based on principles of mutual aid and solidarity implemented by participants in commercial maritime traffic, shared elements with the system of fleets and navies on the Indies route.

The essential principles of navigation to America were based on mutual aid among ships in a convoy. In the case of casus fortuitus, accidents, or enemy attack, it was especially important that stronger ships help those that were in trouble. Therefore, the principles inspiring navigation to the West Indies were based on defensive criteria and on saving treasure and commercial cargo rather than protecting individual interests or the profits of a few merchants.

Additionally, disputes between merchants and seamen in avería gruesa suits reveal each group's strategies for protecting their interests. It was not only merchants who participated in decisions to reduce risks but also seamen, whose knowledge and experience contributed to making navigation and overseas routes safer. They made a decisive contribution towards minimizing maritime risk.

The officers of the Crown played an important role in the Carrera de Indias through its judges and agents regarding casos fortuitos and averías gruesas. In particular the captains general of the fleets, despite holding posts that were, above all, military in nature, had broad competencies regarding decisions affecting commerce to and from the West Indies.