A doctrine that embodies legal principles
14 and legal rules, can also be referred to
as a “doctrine of legal principles”,
15 since it is commonly recognized as being a
justification, description and explanation of legal statements.
16 Undoubtedly, the
work on legal doctrines is value-laden and offers a comprehensive understanding of
the existing law,
17 whereby the underlying principles that are widely adhered to and
are elemental to legal doctrines, could help extract the much required justification,
description and explanation of a legal statement. Scholars who advocate this positive
proposition concerning the convenience of legal doctrines would not deny the fact
that the principles of a doctrine could be stretched to support, justify, describe and
explain the legal status of a vessel that is no longer owned or possessed by the
manufacturer, purchaser, seller, buyer or owner—whether an individual or a company. By and large, maritime property that is abandoned by the master or owner will
inevitably float in a legal vacuum until salved or seized by concerned government
authorities. From the moment, a vessel is abandoned to the time it is identified,
marked, beached or secured, the vessel is stripped of all legal identity. Relevantly, if
the vessel is abandoned by the debtor and if the vessel suffers severe damage due to a
collision or a maritime incident that makes it unrecognizable, it is safe to presume
that all rights and property interests including “jus in re and jus in rem”
18 are
14 Basic legal principles, Composite legal principles and Complex legal principles.
15 Although the term “doctrine of principles” is relevant to constitutional scholarship and confirmed
by good treatises of national constitutional law as stated in Von Bogdandy (2003) European Union
Jean Monnet Chair in cooperation with the Max Planck Institute for Comparative public Law and
International Law, Working Paper No 9/03, the term in this context mainly refers to those principles
that are essentially related to the understanding of legal doctrines, and when combined, those
individual principles as a whole provide an over-arching idea with regard to the legal elements that
constitute the doctrine in question. See also Pattaro (2005), supra note 13, where the author claims
that “[l]egal scholars with scientific ambitions sometimes present legal doctrine as an explanatory
enterprise . . .” “However, the word “explanation” often conceals the normative aspect of legal
doctrine. Thus, Jan Hellner . . . writes about many kinds of explanations. Hellner’s typology is
descriptive, and based on interesting examples. Reprocessed in a more analytical manner, it boils
down to this: “Explanations” in Hellner’s meaning can be the same as conceptual analysis of legal
concepts and rules, especially through clarification of their connections with other concepts and
rules. Explanations can also be causal. Historical explanations describe the causal links that legal
rules have with their background history, with the history of legal institutions, with the history of
society as a whole, or with the history of political, philosophical, and other ideas. Sociological
explanations of legal rules are of a similar kind, but they emphasize the present state of society, not
its history”.
16 Pattaro (2005), p. 3.
17 Ibid, pp. 4, 5.
18 The two rights i.e., jus in re and jus in rem are explained in Schoenbaum (1985), p. 515. These
rights are related to the doctrine of maritime liens and denoted as a special property interest ( jus in
re) in nineteenth century cases has led theorists to state that the action in rem is brought literally
against the vessel as the ‘offending thing’. Jus in re and jus in rem has established the maritime lien
as a subject peculiar to maritime law. Courts of common-law jurisdictions designate it as hypothecation, an inchoate right, a proprietary right whereas in France, it is known as creances privilegiees
and in Japan as “preferential rights of ships creditors”. See Tetley and Wilkins (1998), pp. 24–60.
See also Chorley et al. (1987), p. 70. Authors Chroley et al. stress the fact that maritime lien acts
independently where consent of parties or judicial process plays no role and remains affixed
An Exposé of Canadian “Abandoned Vessels &. . .
345
14 and legal rules, can also be referred to
as a “doctrine of legal principles”,
15 since it is commonly recognized as being a
justification, description and explanation of legal statements.
16 Undoubtedly, the
work on legal doctrines is value-laden and offers a comprehensive understanding of
the existing law,
17 whereby the underlying principles that are widely adhered to and
are elemental to legal doctrines, could help extract the much required justification,
description and explanation of a legal statement. Scholars who advocate this positive
proposition concerning the convenience of legal doctrines would not deny the fact
that the principles of a doctrine could be stretched to support, justify, describe and
explain the legal status of a vessel that is no longer owned or possessed by the
manufacturer, purchaser, seller, buyer or owner—whether an individual or a company. By and large, maritime property that is abandoned by the master or owner will
inevitably float in a legal vacuum until salved or seized by concerned government
authorities. From the moment, a vessel is abandoned to the time it is identified,
marked, beached or secured, the vessel is stripped of all legal identity. Relevantly, if
the vessel is abandoned by the debtor and if the vessel suffers severe damage due to a
collision or a maritime incident that makes it unrecognizable, it is safe to presume
that all rights and property interests including “jus in re and jus in rem”
18 are
14 Basic legal principles, Composite legal principles and Complex legal principles.
15 Although the term “doctrine of principles” is relevant to constitutional scholarship and confirmed
by good treatises of national constitutional law as stated in Von Bogdandy (2003) European Union
Jean Monnet Chair in cooperation with the Max Planck Institute for Comparative public Law and
International Law, Working Paper No 9/03, the term in this context mainly refers to those principles
that are essentially related to the understanding of legal doctrines, and when combined, those
individual principles as a whole provide an over-arching idea with regard to the legal elements that
constitute the doctrine in question. See also Pattaro (2005), supra note 13, where the author claims
that “[l]egal scholars with scientific ambitions sometimes present legal doctrine as an explanatory
enterprise . . .” “However, the word “explanation” often conceals the normative aspect of legal
doctrine. Thus, Jan Hellner . . . writes about many kinds of explanations. Hellner’s typology is
descriptive, and based on interesting examples. Reprocessed in a more analytical manner, it boils
down to this: “Explanations” in Hellner’s meaning can be the same as conceptual analysis of legal
concepts and rules, especially through clarification of their connections with other concepts and
rules. Explanations can also be causal. Historical explanations describe the causal links that legal
rules have with their background history, with the history of legal institutions, with the history of
society as a whole, or with the history of political, philosophical, and other ideas. Sociological
explanations of legal rules are of a similar kind, but they emphasize the present state of society, not
its history”.
16 Pattaro (2005), p. 3.
17 Ibid, pp. 4, 5.
18 The two rights i.e., jus in re and jus in rem are explained in Schoenbaum (1985), p. 515. These
rights are related to the doctrine of maritime liens and denoted as a special property interest ( jus in
re) in nineteenth century cases has led theorists to state that the action in rem is brought literally
against the vessel as the ‘offending thing’. Jus in re and jus in rem has established the maritime lien
as a subject peculiar to maritime law. Courts of common-law jurisdictions designate it as hypothecation, an inchoate right, a proprietary right whereas in France, it is known as creances privilegiees
and in Japan as “preferential rights of ships creditors”. See Tetley and Wilkins (1998), pp. 24–60.
See also Chorley et al. (1987), p. 70. Authors Chroley et al. stress the fact that maritime lien acts
independently where consent of parties or judicial process plays no role and remains affixed
An Exposé of Canadian “Abandoned Vessels &. . .
345