reclaim the vessel within a certain period after the lapse of which the vessel can be
auctioned or disposed of. But as long as the vessel exists and until the concerned
officer takes further actions, the vessel is still an “abandoned vessel” even though it
might not be res nullius in a strict legal sense. It is therefore, important to understand,
dissect and carefully analyze the term “abandoned vessel” with the help of pertinent
doctrines and principles, which can be considered as important and necessary legal
tools
99 that provide guidance in the understanding of where relinquished and
discarded property is positioned in the realm of law. This analysis already exists in
the texts of judicial decisions on maritime claims whereby judges have already
conducted most of this surgical analysis on abandoned vessel in cases involving
ownership and possession of wrecks and derelicts. While regulatory law can only
encapsulate the maritime property with the term “abandoned vessel” and commence
with a brief definitional interpretation on what an abandoned vessel is, its true
meaning and essence lies in those legal doctrines and principles that are considered
by the learned judges in: (a) derelict cases and; (b) wreck cases that involved salvage
of both ship and cargo.
100 The definition that is observed in regulatory law is mostly
a condensed definition to help regulatory officers to identify vessels that are abandoned. In theory, the term “derelict” is used in lieu of abandoned vessel and
embedded in the definition of “wreck” in regulatory law. Therefore, in order to
fully comprehend the term “abandoned vessel”, there is a need to delve into parallel
and corresponding terms i.e., derelict and wreck. Because these parallel and
corresponding terms are the only terms that can be extracted from classic cases
and judicial decisions where the term “abandoned” has been used explicitly, sometimes directly and quite often through the usage of the umbrella term “derelict”. In
these various cases, judges have made significant efforts to narrow down “abandoned” in terms of relevant factors by determining what to study, what knowledge to
draw on, and what to include and exclude. So, the question is—can the main essence
of “abandoned vessel” be extracted from the sixteenth, seventeenth, eighteenth and
nineteenth century common law cases concerning wrecks and derelicts?
4 Commentary: Abandonment Through the Lens of Wreck
and Derelict Cases
In its most ancient description, the philosophy surrounding “wrecks” was limited to
those portions of ship and cargo, which were cast up on land.
101 In this context, the
location of the property was considered significant since the jurisdiction of the
99 These tools are the components that are found within the ambit of the doctrine of abandonment
and have been discussed in the previous chapter.
100 From a common viewpoint, judges are often compelled to look beyond the law that often tends to
be narrow and test relevant doctrines and principles to untangle overlapping layers of complexity
and highlight the true definition and characteristics of an abandoned vessel.
101 Kennedy and Rose (2002), p. 99.
An Exposé of Canadian “Abandoned Vessels &. . .
363
auctioned or disposed of. But as long as the vessel exists and until the concerned
officer takes further actions, the vessel is still an “abandoned vessel” even though it
might not be res nullius in a strict legal sense. It is therefore, important to understand,
dissect and carefully analyze the term “abandoned vessel” with the help of pertinent
doctrines and principles, which can be considered as important and necessary legal
tools
99 that provide guidance in the understanding of where relinquished and
discarded property is positioned in the realm of law. This analysis already exists in
the texts of judicial decisions on maritime claims whereby judges have already
conducted most of this surgical analysis on abandoned vessel in cases involving
ownership and possession of wrecks and derelicts. While regulatory law can only
encapsulate the maritime property with the term “abandoned vessel” and commence
with a brief definitional interpretation on what an abandoned vessel is, its true
meaning and essence lies in those legal doctrines and principles that are considered
by the learned judges in: (a) derelict cases and; (b) wreck cases that involved salvage
of both ship and cargo.
100 The definition that is observed in regulatory law is mostly
a condensed definition to help regulatory officers to identify vessels that are abandoned. In theory, the term “derelict” is used in lieu of abandoned vessel and
embedded in the definition of “wreck” in regulatory law. Therefore, in order to
fully comprehend the term “abandoned vessel”, there is a need to delve into parallel
and corresponding terms i.e., derelict and wreck. Because these parallel and
corresponding terms are the only terms that can be extracted from classic cases
and judicial decisions where the term “abandoned” has been used explicitly, sometimes directly and quite often through the usage of the umbrella term “derelict”. In
these various cases, judges have made significant efforts to narrow down “abandoned” in terms of relevant factors by determining what to study, what knowledge to
draw on, and what to include and exclude. So, the question is—can the main essence
of “abandoned vessel” be extracted from the sixteenth, seventeenth, eighteenth and
nineteenth century common law cases concerning wrecks and derelicts?
4 Commentary: Abandonment Through the Lens of Wreck
and Derelict Cases
In its most ancient description, the philosophy surrounding “wrecks” was limited to
those portions of ship and cargo, which were cast up on land.
101 In this context, the
location of the property was considered significant since the jurisdiction of the
99 These tools are the components that are found within the ambit of the doctrine of abandonment
and have been discussed in the previous chapter.
100 From a common viewpoint, judges are often compelled to look beyond the law that often tends to
be narrow and test relevant doctrines and principles to untangle overlapping layers of complexity
and highlight the true definition and characteristics of an abandoned vessel.
101 Kennedy and Rose (2002), p. 99.
An Exposé of Canadian “Abandoned Vessels &. . .
363