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Domestication and absolute ownership of fish in the English common law

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Abstract:

The English common law has, for the purpose of describing the rights of ownership of animals, divided them into two classes, those the subject of absolute ownership and those the subject of a limited property right. In this system, fish have long been regarded as the subject of a limited property right, one dependent on possession.

The principles underlying those concepts follow the Roman law concepts applicable to the proprietorship of animals and adopted in much of Europe. Those principles were further developed and adapted over many centuries in England, but more significantly in the common law countries outside of England, over the last century. They are principles that have a limited relationship to domestication. Drawing on the recent decisions outside of England it is possible to refashion the commonly presented tests as to the absolute ownership of animals. Based on those decisions, it may be asserted, that a person may absolutely own an animal that is a member of a population of animals that have had a long association with humans, or are exploited by a community in a recognized manner, other than by hunting. When applied to fish, particularly those from stock enhancement, sea ranching and aquaculture escapes, those principles raise a number of questions. Does the aquaculturist remain the owner of the fish that have escaped? Is it possible to retain ownership of stock enhancements and sea ranched fish? In some cases they may also raise an issue as to the liability for those fish at large.

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/j.0022-1112.2004.559aa.x

Affiliations: 43 Wright Street, Adelaide, SA 5000, Australia

Publication date: December 1, 2004

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