debate since the beginning of time.
28 Much of the contemporary perception on
ownership is rooted in the historical legal maxim nemo dat quod non habet, a free
translation of which reads as “no one can pass to another a title which is not his to
give”.
29 The basic rule of this maxim is that a person who is not the owner of a
certain property cannot confer that property on any other person except with the
permission or authority of the bona-fide owner. Disapproval, disagreement or refusal
by the true owner acts as a bar on any transfer made by any person. In other words,
any transfer made by other persons without prior approval of the owner results in that
agreement being void ab initio. In short, ownership is a strong nexus between the
true owner and the property—the general notion implied in the term is clear.
In property law, registration of the title or the deed to the property is prima facie
proof of ownership and as such, “the title should be traced back as far and as
carefully as possible that his title is as unshakable as it can be made”.
30 The title
or the deed of the property mirrors a number of rights that are the fragmentations of
ownership. The classic analysis of ownership by Honoré provides an all-embracing
idea of those rights akin to property ownership, which includes, the right to possess,
the right to use, the right to manage, the right to the income, the right to the capital,
the right to security, the incident of transmissibility, the incident of absence of term,
liability to execution, the prohibition of harmful use and residuary character.
31
From a general perspective, the owner of maritime property can also exercise the
aforementioned bundle of rights, whether it is the owner of a small fishing boat or the
owner of a big commercial tanker. But it should be noted that the rules on ownership
of a vessel might vary significantly from one jurisdiction to another.
32 In maritime
parlance, the individuals or the owner(s) of a “shipping company”,
33 whether private
or state-owned, are by and large referred to as “ship owners”.
34 A ship owner aptly
28 Diamond (2009). See also Hill (2003), p. 1.
29 Hill (2003), Ibid, p. 1.
30 Ibid.
31 Honoré (1993), pp. 371–374.
32 Coles and Ready (2002). See also Gold et al. (2003), p. 53.
33 Khee-Jin Tan (2005), p. 34. The author also states “In order to operate, all ships are customarily
registered with a state registry (the flag state), thereby assuming that state’s nationality and enjoying
its protection”.
34 See Stopford (2000). Note that while at the one end of the spectrum there are companies owning
anywhere from 1 to 10 ships, at the other end of the spectrum is the large and highly sophisticated
company operating anywhere from 50 to 100 ships. Stopford at 438 states “The use of open
registers in shipping has given rise to a distinctive structure of company organization designed to
protect the ‘beneficial owner’. . . There are four active components: 1 The beneficial owner. The
ultimate controlling owner who benefits from any profits the ship makes. He may be located in his
home country or an international centre such as Geneva or Monaco. 2 One-ship company. A
company, usually incorporated in an open registry country, set up for the sole purpose of owning
a single ship. It has no other traceable assets. This protects the other assets of the beneficial owner
from claims involving the one ship company. 3 Holding company. Holding companies are often
incorporated in a favourable tax jurisdiction for the purpose of owning and operating ships. The
only assets of this company are the shares in each one-ship company. The shares in this company
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T. M. Johansson
28 Much of the contemporary perception on
ownership is rooted in the historical legal maxim nemo dat quod non habet, a free
translation of which reads as “no one can pass to another a title which is not his to
give”.
29 The basic rule of this maxim is that a person who is not the owner of a
certain property cannot confer that property on any other person except with the
permission or authority of the bona-fide owner. Disapproval, disagreement or refusal
by the true owner acts as a bar on any transfer made by any person. In other words,
any transfer made by other persons without prior approval of the owner results in that
agreement being void ab initio. In short, ownership is a strong nexus between the
true owner and the property—the general notion implied in the term is clear.
In property law, registration of the title or the deed to the property is prima facie
proof of ownership and as such, “the title should be traced back as far and as
carefully as possible that his title is as unshakable as it can be made”.
30 The title
or the deed of the property mirrors a number of rights that are the fragmentations of
ownership. The classic analysis of ownership by Honoré provides an all-embracing
idea of those rights akin to property ownership, which includes, the right to possess,
the right to use, the right to manage, the right to the income, the right to the capital,
the right to security, the incident of transmissibility, the incident of absence of term,
liability to execution, the prohibition of harmful use and residuary character.
31
From a general perspective, the owner of maritime property can also exercise the
aforementioned bundle of rights, whether it is the owner of a small fishing boat or the
owner of a big commercial tanker. But it should be noted that the rules on ownership
of a vessel might vary significantly from one jurisdiction to another.
32 In maritime
parlance, the individuals or the owner(s) of a “shipping company”,
33 whether private
or state-owned, are by and large referred to as “ship owners”.
34 A ship owner aptly
28 Diamond (2009). See also Hill (2003), p. 1.
29 Hill (2003), Ibid, p. 1.
30 Ibid.
31 Honoré (1993), pp. 371–374.
32 Coles and Ready (2002). See also Gold et al. (2003), p. 53.
33 Khee-Jin Tan (2005), p. 34. The author also states “In order to operate, all ships are customarily
registered with a state registry (the flag state), thereby assuming that state’s nationality and enjoying
its protection”.
34 See Stopford (2000). Note that while at the one end of the spectrum there are companies owning
anywhere from 1 to 10 ships, at the other end of the spectrum is the large and highly sophisticated
company operating anywhere from 50 to 100 ships. Stopford at 438 states “The use of open
registers in shipping has given rise to a distinctive structure of company organization designed to
protect the ‘beneficial owner’. . . There are four active components: 1 The beneficial owner. The
ultimate controlling owner who benefits from any profits the ship makes. He may be located in his
home country or an international centre such as Geneva or Monaco. 2 One-ship company. A
company, usually incorporated in an open registry country, set up for the sole purpose of owning
a single ship. It has no other traceable assets. This protects the other assets of the beneficial owner
from claims involving the one ship company. 3 Holding company. Holding companies are often
incorporated in a favourable tax jurisdiction for the purpose of owning and operating ships. The
only assets of this company are the shares in each one-ship company. The shares in this company
348
T. M. Johansson