constructive possession makes abandonment hard to justify. Despite factual complexities and convoluting nature of legal jargon, the doctrine of abandonment is an
important legal apparatus that can pierce through those multifarious complex layers
and help create a potential area for clarity in an abandonment case where the court
seems to struggle with the vast amount of differing circumstances. In short, the
doctrine of abandonment has provided the judges with a commencing point and
overall significant guidance in cases pertaining to the rights of a natural person in
relation to a vessel that is either a derelict or a wreck.
While development of a binding definition or an examination of the legal vacuum
or the “abandonment period”
133 has never been the principal objective of judges
who have presided over derelict and wreck cases, it is nevertheless observed that in
most cases the subject matter of maritime abandonment is nominally reduced to the
term res derelicta or res nullius. In other words, any maritime property that is a
“derelict” can also be termed as “abandoned” and vice versa.
134 This type of usage
gives the understanding that the two terms are synonymous and therefore, the
longstanding practice revolves around using the terms “derelict” and “abandoned”
interchangeably.
With a derelict, there is always a question of whether constructive possession is
absolutely renounced by prolonged inaction. So, if a vessel is intentionally set adrift
or spontaneously discarded at the dock by the owner with knowledge of consequences—then the situation can be best termed as “abandonment”, marking the
vessel as an “abandoned vessel”. But if the vessel went adrift in the event of a
substantial storm and without the knowledge of the owner, then the situation would
not constitute an “abandonment”—it would be “dereliction”, similar to what has
been observed previously in forgotten or lost property situations. While in the first
situation there is a unilateral action of ridding one’s self of ownership through
explicit renunciation of actual and constructive possession, the latter situation
does not demonstrate any such action. The action was not initiated by the owner
and could be deemed as merely an act of God. Actual possession could be taken
away, but constructive possession continues as a psychological state of mind. In
those cases, if the owner makes an effort to search for the lost vessel and the finder
generously returns the vessel—the period during which the owner is deprived of
actual possession, i.e., until reclaimed by the owner and returned by the finder, there
is no legal vacuum. It is simply a period of dereliction. This is an important
distinguishing point between an “abandoned vessel” and a “derelict”. In short, if it
was abandonment pursuant to the doctrine of abandonment, then the vacuum is
apparent, and the abandoned vessel could be rescued from this legal oblivion after
claims of ownership and possession are established by the finder. Possession thus,
acts as a bar when using “abandoned vessel” and “derelict” interchangeably and to
133 Permanent relinquishment by the true owner—claim through actual and constructive possession
by the finder or intermeddler.
134 The usage of the term “derelict” could also be used to refer to a vessel that is still floating,
stranded or beached, i.e., a vessel that is not sunken or submerged. See The Pergo (1987) 1 Lloyd’s
Rep. 582.
372
T. M. Johansson
important legal apparatus that can pierce through those multifarious complex layers
and help create a potential area for clarity in an abandonment case where the court
seems to struggle with the vast amount of differing circumstances. In short, the
doctrine of abandonment has provided the judges with a commencing point and
overall significant guidance in cases pertaining to the rights of a natural person in
relation to a vessel that is either a derelict or a wreck.
While development of a binding definition or an examination of the legal vacuum
or the “abandonment period”
133 has never been the principal objective of judges
who have presided over derelict and wreck cases, it is nevertheless observed that in
most cases the subject matter of maritime abandonment is nominally reduced to the
term res derelicta or res nullius. In other words, any maritime property that is a
“derelict” can also be termed as “abandoned” and vice versa.
134 This type of usage
gives the understanding that the two terms are synonymous and therefore, the
longstanding practice revolves around using the terms “derelict” and “abandoned”
interchangeably.
With a derelict, there is always a question of whether constructive possession is
absolutely renounced by prolonged inaction. So, if a vessel is intentionally set adrift
or spontaneously discarded at the dock by the owner with knowledge of consequences—then the situation can be best termed as “abandonment”, marking the
vessel as an “abandoned vessel”. But if the vessel went adrift in the event of a
substantial storm and without the knowledge of the owner, then the situation would
not constitute an “abandonment”—it would be “dereliction”, similar to what has
been observed previously in forgotten or lost property situations. While in the first
situation there is a unilateral action of ridding one’s self of ownership through
explicit renunciation of actual and constructive possession, the latter situation
does not demonstrate any such action. The action was not initiated by the owner
and could be deemed as merely an act of God. Actual possession could be taken
away, but constructive possession continues as a psychological state of mind. In
those cases, if the owner makes an effort to search for the lost vessel and the finder
generously returns the vessel—the period during which the owner is deprived of
actual possession, i.e., until reclaimed by the owner and returned by the finder, there
is no legal vacuum. It is simply a period of dereliction. This is an important
distinguishing point between an “abandoned vessel” and a “derelict”. In short, if it
was abandonment pursuant to the doctrine of abandonment, then the vacuum is
apparent, and the abandoned vessel could be rescued from this legal oblivion after
claims of ownership and possession are established by the finder. Possession thus,
acts as a bar when using “abandoned vessel” and “derelict” interchangeably and to
133 Permanent relinquishment by the true owner—claim through actual and constructive possession
by the finder or intermeddler.
134 The usage of the term “derelict” could also be used to refer to a vessel that is still floating,
stranded or beached, i.e., a vessel that is not sunken or submerged. See The Pergo (1987) 1 Lloyd’s
Rep. 582.
372
T. M. Johansson