1 Introduction
This chapter explores the legal essence of the term “abandoned vessel” and is
comprised of an in-depth study of relevant principles and doctrines, including
those of ownership, possession, actual possession, constructive possession, res
nullius, and occupatio that are quintessential elements of the “doctrine of abandonment”. The examination and study conducted in this chapter relates to the “expository research” component of the legal doctrinal methodology used to support the
argumentative and hermeneutic approach. It is important to mention that the reason
behind the examination of relevant doctrines and principles stems from the muchneeded understanding of what “abandoned vessel” truly embodies. This is not
simply because the Canadian federal authorities currently seek to establish a formal
definition of “abandoned vessels” so that it goes beyond the definition of “wreck” as
incorporated in s. 153(a) of the Canada Shipping Act of 2001 (CSA 2001): “. . .
jetsam, flotsam, lagan and derelict and any other thing that was part of or was on a
vessel wrecked, stranded or in distress . . . [emphasis added]”; the need comes from
the question of what the appropriate title of this recurring challenge should be if the
federal authorities decide to develop regulations concerning management strategies.
It is observed by the authors that since 2012, a number of appellations have been
used by the federal authorities and the media to refer to the problem, such as
“abandoned and derelict vessels”, “abandoned vessels and derelict”, “abandoned
vessels”, “derelicts”, and “vessels of concern”. Moreover, federal surveys indicate
that these abandoned vessels also comprise wrecks, which according to the existing
laws of Canada include the term “derelict”. This has distorted the subject matter, and
as such, it is important to rely on the classical doctrines and principles, which
provide individual understanding with regard to the meaning of “abandonment”
and how it is different from the act of making a vessel derelict that indicates
“dereliction”.
Another important reason behind the development of this chapter emanates from
the fact that an abandoned vessel, although abandoned by the owner, does not cease
to be “maritime property” as long as it floats, is adrift and is in good condition. The
word “property” in the term “maritime property” indicates that as long as the vessel
is in good condition and retains its vessel-characteristics prior to becoming a wreck,
it will continue to be an instrument of “relational governance” that governs the
relationship between the owner and the vessel. For example, in the case of the MV
Farley Mowat that was abandoned for a considerable period of time in the Shelburne
Marine Terminal of Nova Scotia, it is observed that the owner was in fact identified
and served with a court order to remove the vessel. This begs the question, was it
appropriate to refer to the MV Farley Mowat as an abandoned vessel given that the
actual owner maintained ownership and constructive possession over the vessel until
finally removed and disposed of after a terrible legal battle? In other words, should
abandoned vessels that have the names and addresses of identified owners contained
in the Canadian inventory be termed as “abandoned vessels” that mainly refers to
permanently abandoned, or should they be addressed as “derelicts” that refers to a
342
T. M. Johansson
This chapter explores the legal essence of the term “abandoned vessel” and is
comprised of an in-depth study of relevant principles and doctrines, including
those of ownership, possession, actual possession, constructive possession, res
nullius, and occupatio that are quintessential elements of the “doctrine of abandonment”. The examination and study conducted in this chapter relates to the “expository research” component of the legal doctrinal methodology used to support the
argumentative and hermeneutic approach. It is important to mention that the reason
behind the examination of relevant doctrines and principles stems from the muchneeded understanding of what “abandoned vessel” truly embodies. This is not
simply because the Canadian federal authorities currently seek to establish a formal
definition of “abandoned vessels” so that it goes beyond the definition of “wreck” as
incorporated in s. 153(a) of the Canada Shipping Act of 2001 (CSA 2001): “. . .
jetsam, flotsam, lagan and derelict and any other thing that was part of or was on a
vessel wrecked, stranded or in distress . . . [emphasis added]”; the need comes from
the question of what the appropriate title of this recurring challenge should be if the
federal authorities decide to develop regulations concerning management strategies.
It is observed by the authors that since 2012, a number of appellations have been
used by the federal authorities and the media to refer to the problem, such as
“abandoned and derelict vessels”, “abandoned vessels and derelict”, “abandoned
vessels”, “derelicts”, and “vessels of concern”. Moreover, federal surveys indicate
that these abandoned vessels also comprise wrecks, which according to the existing
laws of Canada include the term “derelict”. This has distorted the subject matter, and
as such, it is important to rely on the classical doctrines and principles, which
provide individual understanding with regard to the meaning of “abandonment”
and how it is different from the act of making a vessel derelict that indicates
“dereliction”.
Another important reason behind the development of this chapter emanates from
the fact that an abandoned vessel, although abandoned by the owner, does not cease
to be “maritime property” as long as it floats, is adrift and is in good condition. The
word “property” in the term “maritime property” indicates that as long as the vessel
is in good condition and retains its vessel-characteristics prior to becoming a wreck,
it will continue to be an instrument of “relational governance” that governs the
relationship between the owner and the vessel. For example, in the case of the MV
Farley Mowat that was abandoned for a considerable period of time in the Shelburne
Marine Terminal of Nova Scotia, it is observed that the owner was in fact identified
and served with a court order to remove the vessel. This begs the question, was it
appropriate to refer to the MV Farley Mowat as an abandoned vessel given that the
actual owner maintained ownership and constructive possession over the vessel until
finally removed and disposed of after a terrible legal battle? In other words, should
abandoned vessels that have the names and addresses of identified owners contained
in the Canadian inventory be termed as “abandoned vessels” that mainly refers to
permanently abandoned, or should they be addressed as “derelicts” that refers to a
342
T. M. Johansson