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Published online by Cambridge University Press: 04 July 2016
Law, Science and Aeronautics are defined in broad terms and some landmarks are outlined in the history of control of aeronautics by legal means.
The exercise of national sovereignty often means that relevant laws are a serious limiting operational parameter. This and other factors may hinder the development of international air transport (especially supersonic aircraft) and may thus threaten the livelihood of aeronautical scientists.
When aviation accidents occur, the operation of rules which determine “legal liability” may thrust an unfair financial burden on sections of the community which may be blameless from a scientific point of view. Suggestions for the future are made.
Scientific exploration into outer space provides a crucial opportunity for the nations of the world to co-ordinate the disciplines of science, law and politics in a way never before possible. Members of the Royal Aeronautical Society cannot afford to ignore this challenge and a practical suggestion is made as a first step in implementation.
1. “The Air Sovereignty Concept and United States Influence on its future development” (1955) 22 J. of Air Law & Commerce 2, 209.
2. The whole of applied technology, of course, is not necessarily scientific. See for example Institution of Mechanical Engineers v. Cane (a House of Lords decision), The Times, 23rd Nov. 1960. [1960] 3 W.L.R. 978.
3. Law and Science in the Space Age (1959) J. of Business Law 103—in which further examples are quoted.
4. See An Historical Survey of International Air Law before the Second World War by P. H. Sand, J. de S. Freitas and G. N. Pratt, Vol. 7. McGill Law Journal No. 1, January 1961.
5. As printed in Le Code de I’Air by Gaston Bonnefoy (Marcel Riviere, Paris 1909).
6. See Appendix A.
7. In his book Aviation ou Navigation Aerienne sans ballons, quoted by Bonnefoy, op. cit. p. 166.
8. L’Auto, 10th January 1908; quoted by Bonnefoy, op. cit. p. 161.
9. Law in the Air, published in the National Review, March 1909 and reproduced here as Appendix B.
10. On 22nd October 1944 Lord Swinton became the first Minister of Civil Aviation.
11. On 19th November 1913 with Mr. Justice Atkin in the chair: reported in The Aeronautical Journal Vol. XVIII, January 1914, page 3. Paper entitled “The Right to Fly.”
12. The Air Navigation Order 1960—Part V.
13. R. Wallace, op. cit. p. 16.
14. 10 and 11 Geo. 5 Ch.80 (23rd December 1920) Section 9(1). Now replaced by Section 40(1) of the Civil Aviation Act, 1949.
15. Treaty Series No. 2 (1922) Cmd. 1609—See relevant text for Note 28.
16. Although under the authority of the temporary Air Navigation Act, 1919 most of these Rules were already in force by means of the Air Navigation Regulations 1919 (when the Right Hon. W. S. Churchill was the relevant Minister).
17. Journal Royal Aeronautical Society, Vol. 31, 1927, pp. 411-419 “The Regulation of Air Traffic.”
18. Sestion VI, The Rules of the Air and Air Traffic Control Regulations 1960.
19. Ibid. Rule 17.
20. Wallace, R.loc. cit. p. 3.Google Scholar
21. Spaight, J. M.Aircraft in War. (Macmillan 1914).Google Scholar
22. A meeting on 8th November 1909, reported in Vol. XIV The AeronauticalJournal, January 1910.
23. Spaight, J. M.loc. cit. p. 3Google Scholar
24. The Law of the Air. Hazeltine, H. D. (University of London Press 1911).Google Scholar
25. R. Y. Jennings “International Civil Aviation and the Law,” 22nd British Yearbook of International Law, 1945.
26. Spaight, J. M.op. cit. p. 47.Google Scholar
27. Wallace, R.loc. cit. p. 6.Google Scholar
28. Treaty Series No. 2 (1922) Cmd. 1609.
29. Cheng, B. “The Right to Fly”—42 Grotius Society Trans. 1956 p. 106.Google Scholar
30. R. Y. Jennings loc. cit.
31. Article 1 of the 1944 Convention on International Civil Aviation I.C.A.O. Doc. 7300/2 (Original signed 7th December 1944).
32. Art. 6 Ibid., and by custom and special agreement with States not parties to the Chicago Convention.
33. Jennings, R. Y., loc. cit. p. 15.Google Scholar
34. Lissitzyn, International Air Transport and National Policy. (1942) p. 402.Google Scholar
35. Dr. Cheng distinguishes EIGHT freedoms (including Cabotage)! loc. cit. p. 111.
36. The International Air Transport Agreement 1944.
37. “Open Skies for Air Transport: What is the price of Traffic Rights?” by T. B. Hurld, p. 874 Flight 1960 (24th June). The suggestions in this article would make it unnecessary to distinguish between scheduled and non-scheduled air services.
38. R. Wallace loc. cit. p. 7.
39. Article 5.
40. “Freedom of the Air” Airbrokers’ Association (London).
41. Treaty series No. 42 (1960) Cmnd. 1099. The U.K. adhered to this Convention on 11th January 1960.
42. In a translation by R. Wallace, loc. cit. p. 9.
43. As a result of the Civil Aviation (Licensing) Act 1960 and the ensuing Civil Aviation (Licensing) Regulations 1960.
44. Jennings, R. Y., op. cit. p. 19.Google Scholar
45. Report of the Aviation Securities Committee of the Investment Bankers Assocn. of America. (Submitted to the I.B.A. Convention December 1960), p. 16.
46. Art. 2(5) of the Air Navigation Order 1960.
47. Bo Lundberg in a talk entitled “ Should Civil Supersonic Aviation be permitted?” given at the Flight Safety Foundation International Air Safety Seminar, November 1960, Arizona. See also Journal of the Royal Aeronautical Society, February 1961.
48. Section 40(2) of the Civil Aviation Act 1949; and see “The Sound Barrier: Aircraft Noise and Insurers”, J. of the Chartered Insurance Institute, Vol. 53. pp. 13-34, 1956
49. XVIII The AeronauticalJournal, p. 30.
50. Section 40(1), Civil Aviation Act 1949.
51. Section 41 Ibid, and Regulation 10 of The Air Navigation (General) Regulations 1960.
52. See, for example, paper by A. R. Paterson calling attention to the serious situation in the U.S.A. and Canada: “When is an Aircraft a ‘Nuisance’ in the eyes of the Law?” I.A.S. Preprint No. 756.
53. Bosworth-Smith and Others v. Gwynnes Ltd. (1920), 89 L.J. Ch. 368. 54. loc cit. p. 14.
55. Bo Lundberg, op cit.
56. The 1944 Chicago Convention is silent on the question of State’s rights to TAX transient aircraft. There are uncomfortable indications—particularly in the U.S.A.—that the tax laws of the pioneering Mayor of Kissimee City may be reborn elsewhere to harrass air commerce.
57. The Times—24th October 1960. It is now understood that other methods of data collection are being explored.
58. Embodied into English law by the Carriage by Air Act 1932.
59. For example see Fosbroke-Hobbes v. Airwork Ltd. and British American Air Services Ltd. (1937) All E.R. 108.
60. The Carriage by Air (Non-International Carriage) (U.K.) Order 1952.
61. By Capt. Waterlow, C. M.: The Aeronautical Journal, Vol. XVIII, p. 37.Google Scholar “The Coming Airship”.
62. Just under £3,000 at present gold prices.
63. Farwell v. Boston and Worcester Rail Road Corp. (1842) 4 Metcalf49.
64. Galer v. Wings Ltd. (1939) 1 DLR 13.
65. Nysted v. Wings Ltd.; Anson v. Wings Ltd. (1942) 3 DLR 336
66. Per Erie C. J. in Scott v. London and St. Katherine Docks Co. (1865) 3 H. &C. at p. 601.
67. Fosbroke-Hobbes v. Airwork Ltd. and British American Air Services Ltd. (1937) 1 All ER 108-114.
68. Reminiscent of certain Comet accidents, nearly 20 years later!
69. Malone v. T.C.A.; Moss v. T.C.A. (1942) 3 DLR 369.
70. Embodied into English law by the Carriage by Air Act 1932.
71. McAlister (or Donoghue) v. Stevenson. (1932) AC562.
72. Macpherson v. Buick Motor Co. (1916) 217 N.W. 382.
73. A gross inflammation of exemption clauses.
74. e.g. B.E.A. in current Handling Agreements with other airlines. The French legal system has a more enlightened attitude to this problem.
75. The Carriage by Air (Non-International Carriage) (U.K.) Order 1952.
76. See Horabin v. B.O.A.C. (1952). All ER 1016 for a definition of “wilful misconduct.”
77. See (a) Komlos v. Compagnie Nationale Air France 111 F. Supp. 393; 75S.Ct 31.
(b) Noel v. Linea Aeropostal Venezolana 24 7 F 2d 667; 78 S.Ct 334.
(c) “The Cause of Action under the Warsaw Convention” by G. N. Calkins Jr., Journal of Air Law and Commerce (Summer and Autumn 1959).
78. Hague Protocol. Cmd. 9824.
79. See 26 JALC 3,267.
80. This would be consistent with the view of our Courts. See Nunan v. Southern Railway Co. (1923) 2KB703.
81. The Common Law of Mankind, by C. W. Jenks. p. 14. Stevens, 1958.
82. Jenks, . (1955) op. cit. p. 584.Google Scholar
83. See Col. Stone, loc. cit. in Note 22, Section 2.
84. See Jessup, P. C. and Taubenfeld, H. J., Controls for Outer Space and the Antarctic Analogy (New York 1959).Google Scholar
85. 26 JALC 4, 385.
86. Cmd. 8886.
87. Established at the Xlth Congress in Stockholm, 16th August 1960.
88. See also The Aircraft Commander in Commercial Air Transportation by M. S. Kamminga. (Nijhoff, The Hague, 1953). 89. Survey of Space Law: Staff Report of the Select Committee on Astronautics and Space Exploration. House Document No.
89. (U.S. Government Printing Office, Washington 1959).
90. See in particular the excellent paper by C. W. Jenks “The International Control of Outer Space”, presented to the Third Space Law Colloquium of the IAF, Stockholm, 16th August 1960.
91. Similar to the Ministry of Aviation’s “Notes for the Guidance and Information of Applicants for an Air Operator’s Certificate.” CA Form 1238.
92. The New Scientist, 24th November 1960. 93. Science and Government by Sir Charles Snow. Oxford University Press 1961.
94. Rt. Hon. Lord Sydenham, F.R.S., 4th February 1914; XVIII The Aeronautical Journal 72, p. 312.
95. From World Drama by Allardyce Nicoll (Harrap).