law. After all, a vessel is considered as a maritime “property” and in jurisprudence,
the term is used to denote only proprietary rights in rem. This right in rem is a
privileged right of the owner and one that requires a critical examination with regard
to the law of salvage and the law of finds. Because the diametric personality of the
maritime property begins to surface in those maritime cases where the finder or
salvor tries to establish a claim based on either actual possession or constructive
possession and in some cases, both.
At this juncture, it is important to note that it has been illustrated in several
instances how derelict and wreck cases have formed a basis for the understanding of
the main essence of “abandoned vessel” and how this term can be marked with
components of legal precision through legal doctrines, rules and principles
established through longstanding usage in seventeenth, eighteenth and nineteenth
century common law cases concerning wrecks and derelicts. Arguably, however,
these cases do not provide the desired overarching definition of “abandoned vessel”
that has been relinquished, given up or renounced by the true owner simply because
a property has been and always will be an instrument of relational governance. This
is mainly because while the subject matter of those cases may be similar, the facts
and circumstances are quite dissimilar and thus, can be contrasted. However, the
question of law in those cases discussed seems to be generic, as the judges tend to
narrow down the “who owns the subject matter and who exercised effective possession”? If the maritime property is ownerless, then there is always a hypothetical
anticipation that the property will eventually be the subject matter of a new claim by
a finder who will seek to establish a claim of ownership through actual or constructive possession. But until then, it is undoubtedly clear that the abandoned vessel
floats in a legal vacuum where ownership and possession does not exist. The
obscurity that dominates this legal vacuum is the main reason why there is constant
difficulty in establishing a concrete definition of “abandoned vessel”. Therefore, the
various rules and principles of the doctrine of abandonment are worthy of
consideration.
Reliance on the substance of the doctrine of abandonment is inevitable due to the
complexity that shrouds the legal rights and affects the varying degrees of possession
of a maritime property that is in the physical custody of the salvor and in constructive
possession by the true owner of title. Moreover, it is observed that prolonged
inaction by the true owner has always added an additional layer of complication
that renders cases on maritime claims very intricate. It appears that the manner in
which the courts define what is abandoned with regard to control and intention is
moderately confusing, especially in unclear cases. The courts are then compelled to
clarify the given situations by dissecting the multifarious complicated layers until
“control” and “intention” of both parties are satisfactorily discernible. Even though
the initial problems in ascertaining whether the sunken or submerged wreck is an
abandoned property are eased by observing the principles integral to salvor’s rights
or finder’s rights, prolonged inaction by the owner and sporadic actions by the salvor
or finder tends to distort “intention”, making it hard to determine whether control
was necessary. This leads to the conclusion that intention, whether animus
derelinquendi or animus revertendi, is subjective, and prolonged inaction without
An Exposé of Canadian “Abandoned Vessels &. . .
371
the term is used to denote only proprietary rights in rem. This right in rem is a
privileged right of the owner and one that requires a critical examination with regard
to the law of salvage and the law of finds. Because the diametric personality of the
maritime property begins to surface in those maritime cases where the finder or
salvor tries to establish a claim based on either actual possession or constructive
possession and in some cases, both.
At this juncture, it is important to note that it has been illustrated in several
instances how derelict and wreck cases have formed a basis for the understanding of
the main essence of “abandoned vessel” and how this term can be marked with
components of legal precision through legal doctrines, rules and principles
established through longstanding usage in seventeenth, eighteenth and nineteenth
century common law cases concerning wrecks and derelicts. Arguably, however,
these cases do not provide the desired overarching definition of “abandoned vessel”
that has been relinquished, given up or renounced by the true owner simply because
a property has been and always will be an instrument of relational governance. This
is mainly because while the subject matter of those cases may be similar, the facts
and circumstances are quite dissimilar and thus, can be contrasted. However, the
question of law in those cases discussed seems to be generic, as the judges tend to
narrow down the “who owns the subject matter and who exercised effective possession”? If the maritime property is ownerless, then there is always a hypothetical
anticipation that the property will eventually be the subject matter of a new claim by
a finder who will seek to establish a claim of ownership through actual or constructive possession. But until then, it is undoubtedly clear that the abandoned vessel
floats in a legal vacuum where ownership and possession does not exist. The
obscurity that dominates this legal vacuum is the main reason why there is constant
difficulty in establishing a concrete definition of “abandoned vessel”. Therefore, the
various rules and principles of the doctrine of abandonment are worthy of
consideration.
Reliance on the substance of the doctrine of abandonment is inevitable due to the
complexity that shrouds the legal rights and affects the varying degrees of possession
of a maritime property that is in the physical custody of the salvor and in constructive
possession by the true owner of title. Moreover, it is observed that prolonged
inaction by the true owner has always added an additional layer of complication
that renders cases on maritime claims very intricate. It appears that the manner in
which the courts define what is abandoned with regard to control and intention is
moderately confusing, especially in unclear cases. The courts are then compelled to
clarify the given situations by dissecting the multifarious complicated layers until
“control” and “intention” of both parties are satisfactorily discernible. Even though
the initial problems in ascertaining whether the sunken or submerged wreck is an
abandoned property are eased by observing the principles integral to salvor’s rights
or finder’s rights, prolonged inaction by the owner and sporadic actions by the salvor
or finder tends to distort “intention”, making it hard to determine whether control
was necessary. This leads to the conclusion that intention, whether animus
derelinquendi or animus revertendi, is subjective, and prolonged inaction without
An Exposé of Canadian “Abandoned Vessels &. . .
371