ship. This is essential because in many cases the actual owner may not be in possession or
control, yet it is necessary to ensure that the ship is managed properly and that those who
manage the ship are accountable. For instance, through a bareboat charterparty (i.e., charter
by demise), the actual shipowner parts with possession and control of the ship, and the
charterer will hire the master and crew and manage the life of the ship. In several jurisdictions, the bareboat charterer is allowed to re-register the ship. Shipowners frequently
augment their fleets through this and other types of chartering, instead of actually owning
more ships . . . [emphasis added]
68
2.3 Res Nullius, Occupatio and Bona Vacantia
Dominium or rerum dominium is a Latin legal term that signifies “quiritarian
ownership” of a thing or property, and dominus is a generic term that is used as an
equivalent to dominium.
69 Similar to the analysis put forward by Savigny, scholars
of property law support the notion that ownership is often expressed by possidere, a
free translation of which refers to “possess” or “hold possession of” whereby the act
of taking possession, the act of holding, occupying, seizing, controlling is considered
as possessio.
70 There is ample historical evidence that the terms dominium,
possidere and possessio have been under constant scrutiny by scholars, lawyers,
legal writers and judges since Roman times. The objective of all such scrutiny and
examination is to clearly establish the rights of the true owner against the world at
large. Those are the rights that revolve around ownership held by a title that is
recognized by the governing law of the land, and that is the core concept of
“quiritarian ownership”—the only dominium recognized by Roman law.
71 The
Roman law thus compiled and codified from earlier customs, practices, judgments
and learned writings, the core principles and doctrinal aspects of many of which have
survived the test of time and prevail today. It is also undoubtedly clear that the
complete notion of property, possession and “quiritarian ownership” would not have
developed without res i.e., the general name for anything which is the object of a
legal act whether it has an actual existence or an existence in the thoughts of a natural
person.
72 Res or the property remains the core of all doctrines, principles and rules
related to property law.
In a discussion pertaining to res, one might come across a situation where the true
owner has left “the property free to the acquisition of whoever wishes to claim it”.
73
As discussed earlier, a transfer of property from the transferor to the transferee does
not indicate that the transferor or the true owner has discarded the property to the
68 Gold et al. (2003), p. 154.
69 Smith (1859), p. 421.
70 “von” Savigny (1865) cited in ibid. Smith (1859).
71 Ibid. Smith (1859).
72 Ibid.
73 Bright v Gineste, supra note 258.
An Exposé of Canadian “Abandoned Vessels &. . .
355
control, yet it is necessary to ensure that the ship is managed properly and that those who
manage the ship are accountable. For instance, through a bareboat charterparty (i.e., charter
by demise), the actual shipowner parts with possession and control of the ship, and the
charterer will hire the master and crew and manage the life of the ship. In several jurisdictions, the bareboat charterer is allowed to re-register the ship. Shipowners frequently
augment their fleets through this and other types of chartering, instead of actually owning
more ships . . . [emphasis added]
68
2.3 Res Nullius, Occupatio and Bona Vacantia
Dominium or rerum dominium is a Latin legal term that signifies “quiritarian
ownership” of a thing or property, and dominus is a generic term that is used as an
equivalent to dominium.
69 Similar to the analysis put forward by Savigny, scholars
of property law support the notion that ownership is often expressed by possidere, a
free translation of which refers to “possess” or “hold possession of” whereby the act
of taking possession, the act of holding, occupying, seizing, controlling is considered
as possessio.
70 There is ample historical evidence that the terms dominium,
possidere and possessio have been under constant scrutiny by scholars, lawyers,
legal writers and judges since Roman times. The objective of all such scrutiny and
examination is to clearly establish the rights of the true owner against the world at
large. Those are the rights that revolve around ownership held by a title that is
recognized by the governing law of the land, and that is the core concept of
“quiritarian ownership”—the only dominium recognized by Roman law.
71 The
Roman law thus compiled and codified from earlier customs, practices, judgments
and learned writings, the core principles and doctrinal aspects of many of which have
survived the test of time and prevail today. It is also undoubtedly clear that the
complete notion of property, possession and “quiritarian ownership” would not have
developed without res i.e., the general name for anything which is the object of a
legal act whether it has an actual existence or an existence in the thoughts of a natural
person.
72 Res or the property remains the core of all doctrines, principles and rules
related to property law.
In a discussion pertaining to res, one might come across a situation where the true
owner has left “the property free to the acquisition of whoever wishes to claim it”.
73
As discussed earlier, a transfer of property from the transferor to the transferee does
not indicate that the transferor or the true owner has discarded the property to the
68 Gold et al. (2003), p. 154.
69 Smith (1859), p. 421.
70 “von” Savigny (1865) cited in ibid. Smith (1859).
71 Ibid. Smith (1859).
72 Ibid.
73 Bright v Gineste, supra note 258.
An Exposé of Canadian “Abandoned Vessels &. . .
355