determining “possession” i.e. Hener v United States (1981).
122 Although the law of
salvage, like the law of finds, requires a salvor to ascertain and establish “possession” over property before asserting the right to exclude others, the Court in was of
the opinion that “possession” meant something less in salvage, than in the law of
finds.
123 The basic difference is that in salvage law, the final result is remuneration
and not title to the maritime property. Another condition that adds weight to this
result is that in salvage law, the possession as such need not be continuous, rather
only to the extent that the “nature and situation” of the salvage operation permits the
continuity.
124 But in the case of The Lusitania (1986), the crucial point was to
resolve the question of entitlement over cargo and personal effects, which were
maritime property in constructive possession. The law of salvage would be apparently excluded because of the absence of the three elements of salvage. The Court
cited Judge Walter E. Hoffman from Wiggins v 1100 Tons, More or Less, of Italian
Marbles (1960)
125 and conceded that the question of abandonment was concrete,
and the question of law was the law of finds;
Personalty, on being abandoned, ceases to be the property of any person, and thenceforth is
no man’s property, unless and until it is reduced to possession with intent to acquire title to,
or ownership of it. It may, accordingly, be appropriated by anyone. If it has not been
reclaimed by the former owner, and appropriating it and reducing it to possession with
intention to become its owner, provided, it has been said, the taking is fair.
126
It seems that an innate notion attached to the concept of “abandonment” under the
common law of finds is that the property carries with it the legal fiction that the
whole world has an invariable right to the property, a status that ends as soon as the
property is reduced to actual possession.
127 In Hener v United States (1981), the
court observed that the party involved had recovered much of the cargo and had
placed the rest within its possession to the extent consistent with the nature of the
cargo, and that the party was engaged in a systematic, unrelenting work to recover all
the remaining cargo from the entire area over which it was scattered.
128 This was
sufficient evidence to demonstrate “intent” to “possess” via actual possession of
122 Hener v United States (1981) 525 F. Supp. 350, 354 (S.D.N.Y). In The Dantzic Packet (1835)
166 E.R. 447—the possessory rights of salvors or derelicts and non-derelicts and the rights of the
masters were examined. It was held: “ . . . where there is a set of salvors who are in actual possession
of a vessel found derelict, or who are with the consent of the master holding actual possession of a
vessel, they cannot be extruded by other persons stangers to the vessel. That is indisputable; but as
between the master and salvors, unless the vessel is absolutely derelict, and the master’s authority is
at an end, he is entitled to resume charge of the ship, to employ whom he pleases, and to take what
measures he thinks proper for the preservation of the ship . . .”.
123 Ibid. at 357.
124 Citing Eads v Brazelton (1861), 22 Ark., p. 511.
125 Wiggins v 1100 Tons, More or Less, of Italian Marbles (1960) 186 F. Supp. 452 (E.D. Va.
1960), p. 456.
126 Ibid., p. 456.
127 Ibid.
128 Hener v United States (1981), supra note 363.
368
T. M. Johansson
122 Although the law of
salvage, like the law of finds, requires a salvor to ascertain and establish “possession” over property before asserting the right to exclude others, the Court in was of
the opinion that “possession” meant something less in salvage, than in the law of
finds.
123 The basic difference is that in salvage law, the final result is remuneration
and not title to the maritime property. Another condition that adds weight to this
result is that in salvage law, the possession as such need not be continuous, rather
only to the extent that the “nature and situation” of the salvage operation permits the
continuity.
124 But in the case of The Lusitania (1986), the crucial point was to
resolve the question of entitlement over cargo and personal effects, which were
maritime property in constructive possession. The law of salvage would be apparently excluded because of the absence of the three elements of salvage. The Court
cited Judge Walter E. Hoffman from Wiggins v 1100 Tons, More or Less, of Italian
Marbles (1960)
125 and conceded that the question of abandonment was concrete,
and the question of law was the law of finds;
Personalty, on being abandoned, ceases to be the property of any person, and thenceforth is
no man’s property, unless and until it is reduced to possession with intent to acquire title to,
or ownership of it. It may, accordingly, be appropriated by anyone. If it has not been
reclaimed by the former owner, and appropriating it and reducing it to possession with
intention to become its owner, provided, it has been said, the taking is fair.
126
It seems that an innate notion attached to the concept of “abandonment” under the
common law of finds is that the property carries with it the legal fiction that the
whole world has an invariable right to the property, a status that ends as soon as the
property is reduced to actual possession.
127 In Hener v United States (1981), the
court observed that the party involved had recovered much of the cargo and had
placed the rest within its possession to the extent consistent with the nature of the
cargo, and that the party was engaged in a systematic, unrelenting work to recover all
the remaining cargo from the entire area over which it was scattered.
128 This was
sufficient evidence to demonstrate “intent” to “possess” via actual possession of
122 Hener v United States (1981) 525 F. Supp. 350, 354 (S.D.N.Y). In The Dantzic Packet (1835)
166 E.R. 447—the possessory rights of salvors or derelicts and non-derelicts and the rights of the
masters were examined. It was held: “ . . . where there is a set of salvors who are in actual possession
of a vessel found derelict, or who are with the consent of the master holding actual possession of a
vessel, they cannot be extruded by other persons stangers to the vessel. That is indisputable; but as
between the master and salvors, unless the vessel is absolutely derelict, and the master’s authority is
at an end, he is entitled to resume charge of the ship, to employ whom he pleases, and to take what
measures he thinks proper for the preservation of the ship . . .”.
123 Ibid. at 357.
124 Citing Eads v Brazelton (1861), 22 Ark., p. 511.
125 Wiggins v 1100 Tons, More or Less, of Italian Marbles (1960) 186 F. Supp. 452 (E.D. Va.
1960), p. 456.
126 Ibid., p. 456.
127 Ibid.
128 Hener v United States (1981), supra note 363.
368
T. M. Johansson