Original scientific paper
On the Acquisition of Ownership by Appropriation of Sea Fish and other Sea Organisms
Nikola Gavella
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Abstract
In the current Croatian legal order, sea fish, sea shells, crabs, corals and other organisms living in the sea and in the sea subsoil cannot be considered as no man’s property (as opposed to wild animals and fish living in rivers and lakes), but they are component parts of the public weal – maritime weal. Such regulation raises some questions that would normally not arise. It is first of all a question of the capacity (suitability) of sea fish, shells, crabs and corals to be owned by appropriation. According to the Croatian current legal order, they cannot be considered as no man’s property, but are component parts of the maritime weal. Second, there is the question of the capacity of the appropriator to acquire ownership by appropriation, particularly with regard to the separate rules on sea fishing and to the fact that it is permitted to some and not to all persons. Third, there is the question of the impact of special rules governing the protection of nature on anybody’s capacity to own fish and other sea organisms by appropriation. When answering these questions, we must take into account that, through the act of fishing, sea fish, shells, crabs and other live and non-living organisms are acquired. This has always been an important branch of industry, which is very important for tourism. In addition, other and even more important needs of many individuals have been satisfied by these primordial hunters’ and fishermen’s activities. The only correct answers are those that take into consideration all these facts and that make it possible for fishermen to satisfy all their needs in conformity with the legal order.
In order to find the right answer to the question on the capacity (suitability) of sea fish, shells, crabs and corals to be owned by way of appropriation, it is necessary to distinguish between two main acts: the act of extracting them from the general weal, and the act of appropriating what has been extracted. In fact, these two acts are mostly performed together, but the distinction between them still remains. They are essential when an attempt is made to understand the mechanism of acquiring ownership over fish and other sea organisms by appropriation. Although at the level of factual things, these two acts occur simultaneously, at the legal level, the act of extraction precedes the act of appropriation. Therefore, there is always the act of extraction which, as already said, precedes the act of acquisition of things. By extracting them from the general weal, we obtain things that are capable of being owned and are suitable for being owned by way of appropriation. A fish, a shell, a crab or some other organism is first extracted from a general, maritime weal and it is initially not owned by anyone. Thereafter, this no man’s thing is appropriated, whereby the appropriator acquires both the possession and also the ownership of the appropriated thing – a fish, a shell, a crab or any other sea organism.
Differentiating between the act of extraction of a thing from the general weal and the act of appropriation allows us to find an answer to the question about how separate legal rules on permission or prohibition of sea fishing influence the capacity of an acquirer to gain ownership by appropriation. An answer to this question is of crucial importance because ownership may be gained only by a person with the capacity to exercise such a right; if not, through appropriation, such a person can only possess but not own the appropriated thing. Such differentiation between the act of extraction and the act of appropriation makes it possible to establish how permission to fish (possession of a benefit, clearance or a licence) is not a precondition for the acquirer’s capacity to acquire ownership by appropriation, but only a precondition for the permission to extract from a general, maritime weal. Even when the extraction of that weal is not permitted, any extraction results in a separated thing which nobody owns until somebody appropriates it and then eventually also owns. A person without the necessary fishing benefit, clearance or licence could also own such a thing by way of appropriation because the fact of not possessing such a permit does not make him or her incapable of acquiring ownership by appropriation. Such a person is only liable for misdemeanour.
An answer to the question on the impact of special rules on the protection of nature on anybody’s capacity of acquiring ownership of fish and other sea organisms by way of appropriation cannot be given in the same way as an answer to the question on the impact of the rules on the permissibility or prohibition of sea fishing. The rules on the protection of nature are such that they limit the freedom of appropriating fish and other sea organisms belonging to so-called protected species. Their appropriation is not allowed; they can be acquired only by persons who have the appropriate permit issued by the competent authorities. A person without such a permit (regardless of perhaps possessing the benefit, clearance or fishing licence) is incapable of acquiring ownership of the protected fish or other sea organisms by appropriation. If such a person extracts them from the maritime weal and carries out the act of appropriation, he or she will possess them but not own them. After extraction from the maritime weal, the fish or other organisms are nobody’s property and despite the fact that they are not owned by the appropriator, they cannot become component parts of the general, maritime weal again. They are possessed by the appropriator but continue to be nobody’s property until they are finally owned by the appropriator who has the capacity of acquiring them on the basis of a permit issued by competent authorities. There is a danger here that someone with such a permit issued by competent authorities for acquiring fish and other sea organisms, categorised as protected species, may want to seize them from the appropriator’s possession in order to acquire ownership by appropriation.
This would inevitably lead to a conflict between the interested parties, which would certainly not be desirable in any society. It would therefore be a good idea for the legislator not only to refrain from permitting fishing by presuming the acquisition of the right of ownership by appropriation, but also to refrain from passing separate laws to determine exclusions or limitations of the possibility to acquire ownership by appropriation. His possible legal or political objectives can undoubtedly be achieved by different tools.
Keywords
no man’s property; occupation; public demesne; maritime demesne; appropriation; fishing; ownership; protection of nature
Hrčak ID:
20402
URI
Publication date:
18.1.2008.
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