navigational safety, marine pollution in coastal areas and damage to shoreline
property owners. Moreover, with respect to salvage, the vessel cannot be identified
as derelict or abandoned if the master and the crew were engaged in the act of
abandonment with an intention of procuring assistance, or in cases where there was a
clear intention of returning to the vessel even though the master may have given up
the entire management to salvors.
115 Vessels abandoned on automatic pilot with
engines running at half speed, as in the case of The Pergo (1987),
116 is prima facie a
derelict. Then again, animus derelinquendi or an abandoning intention is not apparent in situations where the vessel has been captured by the enemy and afterwards
deserted by the captor.
117 These cases could be considered as a conceptual deviation
of the so-called theory of “legal abandonment” where the ship owner could “abandon” the respective vessel to the maritime creditors and be relieved of accrued
maritime debts. This is accompanied by a renunciation of the vessel in question, to
the creditors who could have realized their claims by an executive sale of the vessel.
Legal abandonment, in this sense, does not leave a vessel or a wreck without an
owner. The vessel or the wreck is abandoned to someone, either by the owner to his
creditors or by the assured to the insurer. This can be contrasted with the notion of
dereliction or abandonment, which clearly appertains to a drifting vessel at sea
without any legal custodian. Apparently, cases from the sixteenth, seventeenth,
eighteenth, and nineteenth century has led to the submission that the core principles
and ideologies related to “abandonment” more specifically, abandonment of wrecks
and derelicts are circumstantial. Therefore, the doctrine of abandonment cannot be
termed as a ‘one-size-fit-for-all’ theory for all those cases that are based on different
circumstances. It is also observed that for derelicts and abandoned wrecks—ownership is not a stand-alone doctrine. Ownership in derelict and wreck cases can only be
determined based on consideration of actual and constructive possession. These are
115 Cossman v West [1887], supra note 90.
116 The Pergo (1987) 1 Lloyd’s Rep. 582.
117 Kennedy and Rose (2002). See Bradley v Newsom, Sons and Company (1919) A.C. 16. In this
case, while on a voyage from Archangel to Hull with a cargo of timber, the steamship Jupiter was
attacked off the coast of Scotland by a German submarine, The master and crew were compelled by
force to leave the vessel and in believing that the vessel to have been sunk, the master communicated the message to the owners. Eventually, the vessel was salved and brought into Leith. The
cargo owners claimed delivery of the cargo at Leigh free of freight, on the ground that the contract
of affreightment had been terminated by abandonment of the vessel. Lord Sumner of the House of
Lords held a dissenting opinion that the circumstances in which the master and the crew left the
vessel were not such as to make the vessel derelict, and the cargo owners were not entitled to treat
the contract of carriage as at end. The crucial question, according to L.C. Finlay was whether the
master and the crew abandoned the vessel without any intention of returning to her, and without a
hope of recovery. The significant point of the incident is the application of force by the enemies to
which the master and crew apparently yielded to. This is distinct from intentional abandonment in
so far as they were compelled to abandon the vessel via irresistible physical force. It was further
held that, “[t]he physical act of leaving the vessel is only one feature in such a case. Another and
essential feature, in order to make it a case of derelict, is the state of mind of the captain and crew
when they left. The question of quo animo is decisive, and the facts seem to me to show clearly that
the quitting of the ship was not under such circumstances as to make it a case of derelict”.
366
T. M. Johansson
property owners. Moreover, with respect to salvage, the vessel cannot be identified
as derelict or abandoned if the master and the crew were engaged in the act of
abandonment with an intention of procuring assistance, or in cases where there was a
clear intention of returning to the vessel even though the master may have given up
the entire management to salvors.
115 Vessels abandoned on automatic pilot with
engines running at half speed, as in the case of The Pergo (1987),
116 is prima facie a
derelict. Then again, animus derelinquendi or an abandoning intention is not apparent in situations where the vessel has been captured by the enemy and afterwards
deserted by the captor.
117 These cases could be considered as a conceptual deviation
of the so-called theory of “legal abandonment” where the ship owner could “abandon” the respective vessel to the maritime creditors and be relieved of accrued
maritime debts. This is accompanied by a renunciation of the vessel in question, to
the creditors who could have realized their claims by an executive sale of the vessel.
Legal abandonment, in this sense, does not leave a vessel or a wreck without an
owner. The vessel or the wreck is abandoned to someone, either by the owner to his
creditors or by the assured to the insurer. This can be contrasted with the notion of
dereliction or abandonment, which clearly appertains to a drifting vessel at sea
without any legal custodian. Apparently, cases from the sixteenth, seventeenth,
eighteenth, and nineteenth century has led to the submission that the core principles
and ideologies related to “abandonment” more specifically, abandonment of wrecks
and derelicts are circumstantial. Therefore, the doctrine of abandonment cannot be
termed as a ‘one-size-fit-for-all’ theory for all those cases that are based on different
circumstances. It is also observed that for derelicts and abandoned wrecks—ownership is not a stand-alone doctrine. Ownership in derelict and wreck cases can only be
determined based on consideration of actual and constructive possession. These are
115 Cossman v West [1887], supra note 90.
116 The Pergo (1987) 1 Lloyd’s Rep. 582.
117 Kennedy and Rose (2002). See Bradley v Newsom, Sons and Company (1919) A.C. 16. In this
case, while on a voyage from Archangel to Hull with a cargo of timber, the steamship Jupiter was
attacked off the coast of Scotland by a German submarine, The master and crew were compelled by
force to leave the vessel and in believing that the vessel to have been sunk, the master communicated the message to the owners. Eventually, the vessel was salved and brought into Leith. The
cargo owners claimed delivery of the cargo at Leigh free of freight, on the ground that the contract
of affreightment had been terminated by abandonment of the vessel. Lord Sumner of the House of
Lords held a dissenting opinion that the circumstances in which the master and the crew left the
vessel were not such as to make the vessel derelict, and the cargo owners were not entitled to treat
the contract of carriage as at end. The crucial question, according to L.C. Finlay was whether the
master and the crew abandoned the vessel without any intention of returning to her, and without a
hope of recovery. The significant point of the incident is the application of force by the enemies to
which the master and crew apparently yielded to. This is distinct from intentional abandonment in
so far as they were compelled to abandon the vessel via irresistible physical force. It was further
held that, “[t]he physical act of leaving the vessel is only one feature in such a case. Another and
essential feature, in order to make it a case of derelict, is the state of mind of the captain and crew
when they left. The question of quo animo is decisive, and the facts seem to me to show clearly that
the quitting of the ship was not under such circumstances as to make it a case of derelict”.
366
T. M. Johansson