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LAWCOMM 442 - Personal Property LN.docx
LAWCOMM_442_-_Personal_Property_LN.docx
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LAWCOMM 442 - Personal Property LN.docx-Don Lye 17...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
LAWCOMM 442 - Personal Property LN....
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
Page 23
Don Lye
171346040
3.1.1.2
The Tubantia
[1924] All ER Rep 615
Ship sunk in 1916 in the North Sea in 20 fathoms of water.
1922, war is over and salvage company locates the ship, puts some buoys on the surface to
identify location and then sends divers down.
Then have 20 working days because conditions were treacherous.
Second salvage company came by which also wanted to salvage the wreck.
Plaintiff seeks an injunction to stop the second salvage company.
Plaintiff is asserting possessory rights to cargo at the bottom of the sea – problem with
intermittent possession due to the weather conditions.
Issue
– whether the plaintiff salvage company had possession of the wreck.
Sir Henry Duke P
Takes a purposive approach depending on the subject matter, notion of possession and
ability to acquire goods – may vary.
Holds that the plaintiff did have possession of cargo and therefore grants the injunction.
“What are the kinds of physical control and use of which the things in question were
practically capable? Could physical control be applied to the res as a whole? Was there a
complete taking? Had the plaintiffs' occupation sufficient for practical purposes to exclude
strangers from interfering with the property? Was there the animus possidendi?”
o
Animus possidendi – intention to possess.
“There was animus possidendi in the plaintiffs. There was the use and occupation of which
the subject-matter was capable. There was power to exclude strangers from interfering if
they did not use unlawful force. The plaintiffs did with the wreck what a purchaser could
prudently have done.”
“Must it be said that because the work of the plaintiffs' divers was that of only one pair at
a time, in short spells with long interruptions, and because access to the holds of the
Tubantia was often prevented altogether by stress of weather, therefore the vessel and
her cargo were incapable of possession? To my mind this would be an unfortunate
conclusion, very discouraging to salvage enterprise at a time when salvage, by means of
bold and costly work, is of great public importance.”
Commentary
Person with possession has significant rights, only person who can dispossess someone is
the true owner.
o
The simple rule is that title trumps possession.
For injunctions, cannot be sought in a vacuum, must asserting a legal interest.
Slightly different question posed here vs
Your Response v Datateam.
o
Datateam
– whether the defendant had physical control of tangible objects – no –
because the subject matter was intangible.
o
The Tubantia
– whether the plaintiff had sufficient practical control to assert an
interest in goods.
23
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