kind of temporary abandonment? The answer with regard to the most appropriate
term lies within those classic doctrines and principles that are an integral part of
property law.
The notions of “ownership” and “possession”, which are considered to be
fundamental structural elements of property law, are integral to the understanding
of the subject matter and are strong links that help to understand the concept of
abandonment, and provide the guidance to evaluate the position of the proprietary
connotation of the term “abandoned vessels” in the broad realm of law. It is also
hypothesized that this thread provides an insight into the origin of the subject matter.
Therefore, the objective of this chapter is to explore those relevant doctrines and
principles found in property law and seek the proper term to be used when referring
to this recurring challenge without distorting the legal essence. In the opinion of the
author, this is the foundation for the development of a concrete definition that will
eventually be the basis of a sound management system. In conformity with the
doctrinal method analysis, a number of primary and secondary sources have
been used.
The latter part of this chapter is a commentary on judicial decisions relating to
salvage and wreck based on the “law of salvage” and the “law of finds”. Although in
principle, those common law cases deal with ownership of wrecks and salvage
awards, from a synoptic overview of the judgments, it will become clear that
common law judges have made a commendable effort to identify whether the subject
matter of the dispute was a “derelict” taking into account the “period of abandonment” and the “intention” of the finder or the salvor. In other words, this chapter
complements the judicial efforts, and is an endeavour to extract the legal essence and
the true meaning of “abandonment” from selected sixteenth, seventeenth and eighteenth century common law cases. While the doctrines and legal principles provide
the fundamental understanding of ownership and possession, it is submitted that the
examination of decisions concerning the “law of salvage” and “law of finds” will
assist in the understanding of the legal essence of “abandoned vessel” through the
lens of wreck and derelict cases.
2 Abandonment: A Doctrine of Legal Principles
and Components
Legal doctrines in Western law are rooted in the Roman law. From a historical
perspective, Roman law doctrines have developed since the second century B.C.
1 ;
and during the whole of the middle-ages, legal doctrines were perceived as scientia
juris or a “scientific discipline”, as in those times “authoritative interpretation”, not
empirical research, was the main criterion for the scientific status of a discipline.
2 In
1 Notre Dame Law School (1949), pp. 43–47.
2 Van Hoecke (2011), p. 1.
An Exposé of Canadian “Abandoned Vessels &. . .
343
term lies within those classic doctrines and principles that are an integral part of
property law.
The notions of “ownership” and “possession”, which are considered to be
fundamental structural elements of property law, are integral to the understanding
of the subject matter and are strong links that help to understand the concept of
abandonment, and provide the guidance to evaluate the position of the proprietary
connotation of the term “abandoned vessels” in the broad realm of law. It is also
hypothesized that this thread provides an insight into the origin of the subject matter.
Therefore, the objective of this chapter is to explore those relevant doctrines and
principles found in property law and seek the proper term to be used when referring
to this recurring challenge without distorting the legal essence. In the opinion of the
author, this is the foundation for the development of a concrete definition that will
eventually be the basis of a sound management system. In conformity with the
doctrinal method analysis, a number of primary and secondary sources have
been used.
The latter part of this chapter is a commentary on judicial decisions relating to
salvage and wreck based on the “law of salvage” and the “law of finds”. Although in
principle, those common law cases deal with ownership of wrecks and salvage
awards, from a synoptic overview of the judgments, it will become clear that
common law judges have made a commendable effort to identify whether the subject
matter of the dispute was a “derelict” taking into account the “period of abandonment” and the “intention” of the finder or the salvor. In other words, this chapter
complements the judicial efforts, and is an endeavour to extract the legal essence and
the true meaning of “abandonment” from selected sixteenth, seventeenth and eighteenth century common law cases. While the doctrines and legal principles provide
the fundamental understanding of ownership and possession, it is submitted that the
examination of decisions concerning the “law of salvage” and “law of finds” will
assist in the understanding of the legal essence of “abandoned vessel” through the
lens of wreck and derelict cases.
2 Abandonment: A Doctrine of Legal Principles
and Components
Legal doctrines in Western law are rooted in the Roman law. From a historical
perspective, Roman law doctrines have developed since the second century B.C.
1 ;
and during the whole of the middle-ages, legal doctrines were perceived as scientia
juris or a “scientific discipline”, as in those times “authoritative interpretation”, not
empirical research, was the main criterion for the scientific status of a discipline.
2 In
1 Notre Dame Law School (1949), pp. 43–47.
2 Van Hoecke (2011), p. 1.
An Exposé of Canadian “Abandoned Vessels &. . .
343