the property that has been lost or forgotten unintentionally is quite opposite to the
principles that constitute the doctrine of abandonment. Even if the finder exercises
physical control over a forgotten or lost property, the situation cannot be classified as
legal abandonment.
92 Generally speaking, the law obliges the finder to report the lost
property or try to trace the true owner. Otherwise it will constitute a form of
illegitimate possession.
93 If the true owner manifests an intention not to resume
ownership and possession, it is only then the finder is free from all legal encumbrances. But there is a thin line between legal abandonment and lost property, and
the finder must tread carefully so as to avoid any violation of statutory law.
94 From a
narrow perspective, it can be considered that the true owner’s title in a lost property
case is the strongest since constructive possession still remains even though actual
possession is lost.
95 In the same case, the finder’s right is comparatively weak. If the
finder loses actual possession of the lost property, the finder’s claim on the basis of
constructive possession will not be successful.
96 Because property cannot be abandoned de jure and constructive possession functions best if the possessor holds the
title to the property.
97
3 Abandoned Vessel & the Doctrine of Abandonment
While statutory law comprises statutes and codes enacted by law makers or legislative bodies, and regulatory law consists of regulations and related procedural rules
established by government departments and agencies based on statute law; cases
pertaining to maritime claims and decisions rendered by judges are of particular
importance when it comes to understanding certain terms that are not clearly defined
in the statutory or regulatory law. A certain terminology may have a myriad of
meanings depending on the focus of the interpretation and the area of concentration.
92 Hibbert v McKiernan [1948] 2 KB 142.
93 Ibid. where the collector of golf balls was convicted of theft.
94 Bridge (2002), p. 23. See also Goold (2014).
95 Ibid. Goold, p. 127.
96 Ibid.
97 Penner (2000), p. 79. The author has articulated this point and states “Abandonment is purposeful,
unlike loss. It normally involves relinquishing possession of something that is no longer wanted, in
respect of which the right of exclusive use is no longer of any value to the owner. Abandonment is a
permanent decision not to take advantage of the general duty in rem prohibiting interference in
respect of a particular thing abandoned . . . Implicit in this notion of abandonment is partial
abandonment as well as permanent and total abandonment. This is not, strictly speaking, what we
call ‘abandonment’ normally, for nothing of normative consequence is normally recognized when
we simply decide to leave off using our property for any particular period. We are naturally more
concerned with the decision to do so permanently. But clearly, if we regard the idea that a right to
exclusive use permits us to decide never to use an object of property again, then it must encompass
the lesser decision to forego using it for a day or a month or a year. Such a decision is as much a
disposition of the property as is its total abandonment”.
An Exposé of Canadian “Abandoned Vessels &. . .
361
principles that constitute the doctrine of abandonment. Even if the finder exercises
physical control over a forgotten or lost property, the situation cannot be classified as
legal abandonment.
92 Generally speaking, the law obliges the finder to report the lost
property or try to trace the true owner. Otherwise it will constitute a form of
illegitimate possession.
93 If the true owner manifests an intention not to resume
ownership and possession, it is only then the finder is free from all legal encumbrances. But there is a thin line between legal abandonment and lost property, and
the finder must tread carefully so as to avoid any violation of statutory law.
94 From a
narrow perspective, it can be considered that the true owner’s title in a lost property
case is the strongest since constructive possession still remains even though actual
possession is lost.
95 In the same case, the finder’s right is comparatively weak. If the
finder loses actual possession of the lost property, the finder’s claim on the basis of
constructive possession will not be successful.
96 Because property cannot be abandoned de jure and constructive possession functions best if the possessor holds the
title to the property.
97
3 Abandoned Vessel & the Doctrine of Abandonment
While statutory law comprises statutes and codes enacted by law makers or legislative bodies, and regulatory law consists of regulations and related procedural rules
established by government departments and agencies based on statute law; cases
pertaining to maritime claims and decisions rendered by judges are of particular
importance when it comes to understanding certain terms that are not clearly defined
in the statutory or regulatory law. A certain terminology may have a myriad of
meanings depending on the focus of the interpretation and the area of concentration.
92 Hibbert v McKiernan [1948] 2 KB 142.
93 Ibid. where the collector of golf balls was convicted of theft.
94 Bridge (2002), p. 23. See also Goold (2014).
95 Ibid. Goold, p. 127.
96 Ibid.
97 Penner (2000), p. 79. The author has articulated this point and states “Abandonment is purposeful,
unlike loss. It normally involves relinquishing possession of something that is no longer wanted, in
respect of which the right of exclusive use is no longer of any value to the owner. Abandonment is a
permanent decision not to take advantage of the general duty in rem prohibiting interference in
respect of a particular thing abandoned . . . Implicit in this notion of abandonment is partial
abandonment as well as permanent and total abandonment. This is not, strictly speaking, what we
call ‘abandonment’ normally, for nothing of normative consequence is normally recognized when
we simply decide to leave off using our property for any particular period. We are naturally more
concerned with the decision to do so permanently. But clearly, if we regard the idea that a right to
exclusive use permits us to decide never to use an object of property again, then it must encompass
the lesser decision to forego using it for a day or a month or a year. Such a decision is as much a
disposition of the property as is its total abandonment”.
An Exposé of Canadian “Abandoned Vessels &. . .
361