Aerial Law

AERIAL LAW, the law governing air travel. Aerial naviga tion is everywhere defined and limited by law. Some British and American jurists still find aviation law lacking in substance, since few precedents and no body of judicial decisions and opinions exist on the subject. With the presence, however, of national and international air statutes the law of aviation will continue to grow along with the development of commercial aeronautics. Speculation on the legal status of aeronautics arose even prior to the advent of mechanical flight. In 1900, about the time Santos Dumont was making flights in his first power-driven air-ship, and long before heavier-than-air flight had been demonstrated by the Wright brothers, Paul Fauchille had anticipated legal problems growing out of aerial navigation, in his elaborate air code ("Le domaine aerien et le regime juridique des aerostats," Revue generale de droit international public, 1901). The International Juridical committee on aviation was organized in 1909 for the purpose of drafting an international air code. The rules of this code, although in a sense international, were suitable also for national or municipal codes. The committee continued its work at Paris in 1910, at Geneva in 1912, at Frankfort on the Main in 1913. This organization has continued its work since the World War and in 1928 had a membership of 28 states in the League of Nations. Another international body, the Institute of Inter national Law, in 1911 adopted a comprehensive code of air rules, applicable also to municipal regulation, covering nationality, regis tration and marks of identification. ("Noveau rapport ŕ l'Institut de droit international," Madrid, 1911, Annuaire, 1911.) Legal concern before the war was chiefly centred upon the sovereignty of the air, reminiscent of the old controversy over the freedom of the seas. Speculation was based upon three main theories : that, following the theory of mare liberum, the air was free for all traffic regardless of nationality, with the qualifica tion that the subjacent States could provide regulations for their own safety (Nys., Annuaire, vol. xxi.; Bli_intschli, Das modern V Olkerrecht, pp. 22-26 ; F. Meili, Das Luftschiff im internen Recht and V olkerrecht ; F. Despagnet, Cours de droit international public [1905] ) ; (2) that the State had unlimited jurisdiction over its air space, a theory maintained chiefly by English and American jurists (Sir H. E. Richards, Sovereignty Over The Air, p. 27; H. D. Hazeltine, The Law of the Air, p. 39; Lycklama a Nijeholt, Air Sovereignty, pp. 13-14) ; (3) that State sovereignty was lim ited by servitude granting innocent passage for aircraft of all nationalities (J. M. Spaight, Aircraft in Peace and the Law; E. Catellani, Le droit aerien). The question was settled arbi trarily at the outbreak of the World War when all States asserted jurisdiction over their air space. Holland, Switzerland and the Scandinavian States repeatedly asserted their right of sovereignty, the Dutch enforcing this right by shooting down a German diri gible crossing their territory. (For compilation of notes ex changed by neutrals and belligerents on violations of neutrality by aircraft see Seekriegsrecht int Weltkriege, Reichs-Marine Amts, 1919; also Spaight, Air Power and War Rights.) National sovereignty over air space is now universally enforced. The International Flying Convention of 1919 provides for sover eignty, as do all international agreements and national laws. (British Aerial Navigation Acts of 1911, 1913 and 192o; Franco German Agreement of 1913 ; International Aerial Agreement be tween Great Britain and Switzerland; U.S. Air Commerce Act of 1926.) The right of innocent passage has been accepted, in part, by all nations, but only by treaty. The International Flying Con vention provides for contracting states in this respect.

National municipal law also antedates the World War. National acts regulated aerial navigation in France, Germany, Great Britain and Italy. In America the States of Connecticut and Massa chusetts had enacted State laws. Air rules, however, are based primarily upon the regulations laid down in the International Flying Convention of 1919. (See P. Cogliolo, Codice aeronautico, 1927; M. Sudre and M. Peyrillier, Repertoire de raeronautique et des transports aeriens, 1923 ; Treaties, Conventions, Inter national Acts, Protocols and Agreements between the United States and other Powers, vol. iii., p. 3,768.) (M. W. R.) The parties to this convention which begin by affirming the sov ereignty of each State over the air above its territory are the British Empire, Belgium, Bulgaria, Chile, Czechoslovakia, France, Greece, Italy, Japan, Persia, Poland, Portugal, Rumania, the Saar Territory, the Serb-Croat-Slovene State, Siam and Uruguay. This principle affirmed, the convention goes on to provide for freedom of innocent air passage over the territory of the contracting States for each party to the convention, provided the conditions laid down in it are observed. Such freedom of passage does not apply to "prohibited areas" which States may desire for military reasons to close to all private aircraft, including those in their own terri tory.

The "nationality" of an aircraft is made to depend upon the country in which it is registered; to be registered in a particular State the aircraft must belong to a national of that State or to a company of which the chairman and two-thirds of the directors possess that nationality. Double registration is prohibited. Every aircraft engaged in international navigation must possess a certifi cate of airworthiness issued or rendered valid by its State of nationality, and the pilot and other members of the crew must be provided with certificates of competency and licences similarly issued or validated. The documents (certificates, licences, log books, passenger lists, manifests) which aircraft must be provided with are laid down.

Foreign aircraft may be required to land at aerodromes fixed by the State whose territory they enter; and each State has the right to reserve in favour of its national aircraft the carriage of persons and goods for hire between any two points in its territory. Provision is made for the rendering of assistance to aircraft in landing or in distress, for the application, to aircraft wrecked at sea, of the principles of the maritime law of salvage, for the use of aerodromes at a common tariff of charges, and for certain other matters. The convention is not applicable to military aircraft nor to State non-military aircraft employed on customs and police service ; other State aircraft ; e.g., postal, are subject to its pro visions. A military aircraft is defined as one commanded by a person in military service detailed for the purpose, and such an aircraft may fly over another contracting State's territory only in virtue of a special authorization.

Rules in regard to the marking of aircraft (to show nationality and identity), certificates of airworthiness, log-books, lights and signals, "rules of the road," licensing of personnel, aeronautical maps and ground markings, the collection and dissemination of meteorological information, and customs procedure, are contained in annexes to the convention, which have been modified from time to time by the International Commission for Air Navigation.

International Commission.

A permanent International Commission for Air Navigation, composed of representatives of the contracting States, is established and charged with certain powers, including the amendment of the annexes, the receipt or initiation of proposals to amend the convention itself and the inter-communication of information affecting air navigation, etc. The office of the secretary-general of the commission is at 20, Avenue Kleber, Paris. The convention may be denounced by one year's notice. States which did not take part in the World War may adhere to it at any time; those which took part in the War may adhere under certain specified conditions. The Commission issues half-yearly a Bulletin containing the Convention of 1919 and its annexes revised up to date, and bilateral conventions.

Other Arrangements.

A number of important Powers, it will be seen, are not as yet parties to the Convention, and inter national air traffic is regulated, so far as they are concerned, by a series of special agreements between themselves and with other States; e.g., the Convention between France and Germany, May 22, 1926. The terms of these agreements are in general conformity with those of the convention. The obstacle to a more general acceptance of the convention has been, first, the provision therein forbidding contracting States to permit, except by special and temporary authorization, the flight above their territory of the aircraft of non-contracting States; secondly, the "weighted" vote which was allowed to the British empire, France, Italy and Japan. Protocols of amendment of both these provisions have been signed but, not having been ratified by all the parties, are not yet in force.

The convention of 1919 does not bind the contracting parties as belligerents or neutrals (though it would continue to apply in war as between two neutrals), and an attempt to frame a corre sponding code for war was made at The Hague in 1923. A commis sion of jurists, representing the United States, Great Britain, France, Italy, Japan and The Netherlands, under the chairmanship of John Bassett Moore, drew up rules which, though they have not been embodied in a convention, are a valuable indication of international opinion, as it stood in 1926, upon the law of air warfare.

Municipal Legislation

which has been passed to regulate internal flying and to give effect to the international obligations of each country under the convention of 1919, or the separate bipartite agreements, is contained in laws, decrees, ordinances and regulations of many different kinds. It is of great volume and an indication of its general scope is all that can be attempted. One usually finds in such legislation (lato-sensu) provisions for ensur ing the safety of air navigation as affecting both air travellers and the general public ; provisions, that is to say, for registration and certification of aircraft, licensing of personnel, inspections and tests precedent to such certification and licensing, maintenance and overhaul and renewal of certificates and licences, inspection, licens ing and use of aerodromes, carriage of explosives and arms, drop ping of articles in flight, jettison of cargo, minimum height of flight over populated areas, investigation of accidents and so on. For defence reasons "prohibited areas" are usually defined, and in many cases corridors of entry for foreign aircraft are prescribed as well as the general conditions on which such entry is allowed ; and the carriage of radio apparatus and cameras is usually restricted. Conditions for the grant of concessions for the operation of corn mercial air lines and the establishment of international airways are occasionally included. Penalties (fine, imprisonment, suspension of licence) for the infringement of the rules are invariably laid down.

Liability for Damage.

Liabilityfor damage occasioned by aircraft to persons or p' operty on the ground appears in many of the codes. In the absence of special provision the liability of the owner or pilot would be dependent ordinarily on proof of actual negligence or intention. Proof would often be very difficult to obtain and hence it has generally been considered equitable to impose upon the owner or pilot an absolute liability to pay com pensation for all such damage, save in so far as he can show that the person damnified was himself to blame. It is also sometimes provided that the owner of an aircraft, or the organizers of an air navigation company must cover themselves by insurance against possible claims for compensation or else must deposit security sufficient to cover their liability.

Occasionally it is provided that legal relations between parties on board a foreign aircraft in the air are governed by the law of the aircraft's nationality; i.e., the country in which it is registered. The French law qualifies such a provision by adding that a crime or misdemeanour committed on board a foreign aircraft is within the competence of the French courts, if the guilty party is a French national, or if the aircraft lands in France after the occur rence of the offence.

Conference of 1925.

InOct. 1925, at a conference in Paris of the European and certain other Governments, a draft convention was framed to determine the responsibility of carriers by air. This corresponds to the Berne Convention of 1890 on transport by rail. An international committee of experts is to continue the work of this first conference, and to study a series of questions, connected with unification of private law, of the very greatest practical importance for the development of air traffic, such as damage caused by aircraft to property and persons on the ground, compulsory insurance, establishment of air registers, rights of property and ownership, and mortgages in respect of traffic by air.

(H. H. L. B.) United States.—In contrast with European activity no national law existed in the United States until the passage of the Air Commerce Act of 1926. Until then such ordinary regulations as those governing licensing and inspection of shipping and railroads were lacking for air traffic. Pilots without licences flew aeroplanes which had never been inspected, resulting in hundreds of acci dents. With the exception of the government-operated air-mail no air-lines operating on regular schedules were in existence. Aviation was regarded more as a hazardous sport than as a means of communication and transportation. Accidents were caused by defective machines, errors in piloting, lack of terminals, routes and weather data. A Government report attributed 91% of all the accidents to "inexperience and the use of cheap and unsafe equipment." Uniform air regulation in the United States was complicated by the independent action of many of the individual States. In 1926 there were 26 State air laws. (For State laws in the United and for the Federal Air Commerce Act see C. Zoliman, Law of the Air, 1927; R. W. Fixel, The Law of Aviation, 1927.) In a flight of 500 m. a machine might come under the jurisdiction of six States each with a separate and perhaps conflicting set of air rules. Exclusive national control was improbable, since this would have necessitated either a constitutional amendment or the voluntary submission on the part of the 48 States to a national air law. Concurrent control alone was possible and uniformity of regulations remained dependent upon the action of the different States. A movement for uniformity had already appeared previ ous to the enactment of the national air law. The California air statute thus provided that the enactment of Federal air legislation would automatically void its local air law. The Uniform State Law of Aeronautics, adopted already by ten States and Terri tories, provides that "this act shall be so interpreted and con strued as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with Federal laws and regulations on the subject of aeronautics." The Federal enactment in 1926 of the Air Com merce Act, supplemented by the Uniform State Law, will tend to bring about uniformity if not exclusive Federal control. The Air Commerce Act follows mainly the rules of the International Flying Convention. The act provides for a Bureau of Civil Aero nautics in the Department of Commerce. This bureau, under an assistant secretary of commerce for air, has charge of Federal inspection of aircraft, crews and aerodromes and the establishment and enforcement of air navigation rules. It also furnishes aids to air navigation by approving and charting air routes, establish ing air light-houses and signal stations, furnishing suitable weather reports and providing at the Government fields, in cases of emergency, supplies and repairs at their fair market value. Special provision is made for trials giving the individual complete free dom to test and fly new inventions, no matter how freakish, so long as they do not endanger the public safety. No machine, however, is permitted to carry passengers unless it has been in spected and licensed as a public carrier. European air laws care fully protect the public against the unproved freak machine but they in no manner prohibit the building and testing of any type of craft, from helicopters to tail-less and wingless machines.

Safe air travel will be the preliminary aim of the air board. Public confidence in air travel must be created. To accomplish this air accidents must be decreased, if not eliminated, to a per centage lower even than railroad casualties. In Germany a rigid system of inspections and licensing has helped to cut accidents to a negligible ratio. The following experts' list of "six requisites for safe flying," will serve as a basis for the new air regulations : (i) A machine sound aerodynamically and structurally; (2) a reliable engine of sufficient power; (3) a competent conservative pilot and navigator; (4) airports and emergency landing fields, sufficiently close together to insure gliding to safety; (5) nation wide weather forecast, specialized and adapted to the needs of flying; (6) adequate charts of air routes.

BIBLIOGRAPHY.-J. M. Spaight, Air Power and War Rights (1924) ; Bibliography.-J. M. Spaight, Air Power and War Rights (1924) ; R. B. Sparkes, The Law Relating to the Air (1925) ; Manuals of International Law, e.g., P. Fauchille, Treatise on Public International Law, vol. i., pt. 2 (1925) ; Yearbooks of the Institute of Interna tional Law, vol. xix., xxiii., xxiv., xxvii., xxix.; Reports of the Inter national Law Association, 28th to 34th inclusive ; Records of the International Congresses of Air Legislation, organized by the In ternational Legal Committee on Aviation (7th Congress, Lyons, 1925) ; Bulletins of the International Air Traffic Association (The Hague) ; League of Nations Treaty Series; Bulletins of the International Commission for Air Navigation; The Legal International Review on Air Traffic (1910-14, 1922, etc.) ; Revue Juridique Internationale de la Locomotion flerienne (1910, etc.). (M. W. R.)