diminished. A wrecked vessel, for instance, would not be of any value to the creditor
or to the court. A court may find it difficult, if not impossible, to pay the creditor from
the proceeds of sale of a wrecked ship.
So, what is the doctrine of abandonment? Simply put, it is the doctrine relating to
abandonment and the principles that govern any subject matter that is relinquished,
given up or renounced. The core concept of the doctrine depends on the owner’s
intention and prerogative whereby an intention to abandon may take a realistic form
through discontinuance or by other actions that make it explicitly clear that the
owner wishes to discontinue to own or possess the property in question. These
actions could range from a unilateral transfer of ownership to sales, gifts, bequests,
releases, forfeitures, foreclosures, and adverse possession.
19 Scholars of property
law who subscribe to the proposition that abandonment is a unilateral action of
ridding one self of ownership, also point to the fact that disposal of the property
should not include destruction even though it is a readily available option for the
owner to end both ownership and possession for good.
20 Because abandonment in
property law requires the involvement of two parties, namely, the transferor and the
transferee whereby the destruction of a property cannot be termed as a transfer since
there is no transferee.
21 In other words, to constitute abandonment in property law,
there needs to be a transfer that is unilateral. A clear expression of the term
“unilateral” can be found in Bright v Gineste (1955)
22 in the following words:
[T]o constitute an abandonment in the strict legal sense there must be a parting with title that
is unilateral, the owner must leave the property free to the acquisition of whoever wishes to
claim it, and indifferent as to what may become of it. A transfer of property from one person
to another cannot be effected by abandonment, and abandonment cannot be made to a
particular individual. A relinquishment by one person to another is not an abandonment.
Although the doctrine of abandonment bears the same connotation in maritime
law, i.e. transfer of the res from one party to another; it is a doctrine that has expand
usage in the law of marine insurance. To put it succinctly, the doctrine of abandonment regulates the relationship between the insurer and the insured in insurance
matters, and is closely related to the doctrine of subrogation.
23 While subrogation
is a right whereby the insurer is indefatigably
24 confined to the “rights of the
wherever it may go or whosoever’s hand it may fall. In short, it is fastened by law on the maritime
property from the moment of occurrence which manifests that a maritime lien has materialised. The
claims fixed firmly by a maritime lien are paid off from the proceeds of sale and this is accomplished
in priority to all other ordinary claims and mortgages. See especially The Editorial Staff of the
American Law Book Company (1948), p. 714 where it is highlighted that a maritime lien is a right
against any maritime property, whether it is against the ship herself, the freight or the accessories.
Considering the fact that it operates against any maritime property, it does not only adhere to the
procedural side, but also observes the substantive side and attributes to the substantive part of the
common law countries.
19 Jacob Strahilevitz (2010), p. 359.
20 Ibid, p. 5.
21 Ibid.
22 Bright v Gineste, 284 P (2d) 839, 842 (Cal. App. 1955).
23 Gold et al. (2003), p. 327.
24 In a strict manner.
346
T. M. Johansson
or to the court. A court may find it difficult, if not impossible, to pay the creditor from
the proceeds of sale of a wrecked ship.
So, what is the doctrine of abandonment? Simply put, it is the doctrine relating to
abandonment and the principles that govern any subject matter that is relinquished,
given up or renounced. The core concept of the doctrine depends on the owner’s
intention and prerogative whereby an intention to abandon may take a realistic form
through discontinuance or by other actions that make it explicitly clear that the
owner wishes to discontinue to own or possess the property in question. These
actions could range from a unilateral transfer of ownership to sales, gifts, bequests,
releases, forfeitures, foreclosures, and adverse possession.
19 Scholars of property
law who subscribe to the proposition that abandonment is a unilateral action of
ridding one self of ownership, also point to the fact that disposal of the property
should not include destruction even though it is a readily available option for the
owner to end both ownership and possession for good.
20 Because abandonment in
property law requires the involvement of two parties, namely, the transferor and the
transferee whereby the destruction of a property cannot be termed as a transfer since
there is no transferee.
21 In other words, to constitute abandonment in property law,
there needs to be a transfer that is unilateral. A clear expression of the term
“unilateral” can be found in Bright v Gineste (1955)
22 in the following words:
[T]o constitute an abandonment in the strict legal sense there must be a parting with title that
is unilateral, the owner must leave the property free to the acquisition of whoever wishes to
claim it, and indifferent as to what may become of it. A transfer of property from one person
to another cannot be effected by abandonment, and abandonment cannot be made to a
particular individual. A relinquishment by one person to another is not an abandonment.
Although the doctrine of abandonment bears the same connotation in maritime
law, i.e. transfer of the res from one party to another; it is a doctrine that has expand
usage in the law of marine insurance. To put it succinctly, the doctrine of abandonment regulates the relationship between the insurer and the insured in insurance
matters, and is closely related to the doctrine of subrogation.
23 While subrogation
is a right whereby the insurer is indefatigably
24 confined to the “rights of the
wherever it may go or whosoever’s hand it may fall. In short, it is fastened by law on the maritime
property from the moment of occurrence which manifests that a maritime lien has materialised. The
claims fixed firmly by a maritime lien are paid off from the proceeds of sale and this is accomplished
in priority to all other ordinary claims and mortgages. See especially The Editorial Staff of the
American Law Book Company (1948), p. 714 where it is highlighted that a maritime lien is a right
against any maritime property, whether it is against the ship herself, the freight or the accessories.
Considering the fact that it operates against any maritime property, it does not only adhere to the
procedural side, but also observes the substantive side and attributes to the substantive part of the
common law countries.
19 Jacob Strahilevitz (2010), p. 359.
20 Ibid, p. 5.
21 Ibid.
22 Bright v Gineste, 284 P (2d) 839, 842 (Cal. App. 1955).
23 Gold et al. (2003), p. 327.
24 In a strict manner.
346
T. M. Johansson