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Freedom of the Air in the United States
Published online by Cambridge University Press: 12 April 2017
Extract
On September 15, 1930, the State Board of Commerce and Navigation of New Jersey made a ruling that aircraft would not be permitted to land on any New Jersey waters above tidewater within the jurisdiction of the state. The application had been made for permission to operate a five passenger flying boat between Nolan's Point, Lake Hopatcong, a vacation resort, and New York City, and to set off a portion of the lake to make a landing place for the hydroairplane. It was stated that other inland waters in New Jersey were being used for a similar purpose, and the ground of the refusal was that aircraft flying from water constituted a menace to surface navigation. This ruling created considerable newspaper comment and aroused vigorous protest from persons interested in aviation, and by order of October 20, 1930, the ruling was limited to Lake Hopatcong.
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- Copyright © American Society of International Law 1931
References
1 1930 U. S. Aviation Reports, 193.
2 44 Stat. L. 568. The books on air law reprint it.
3 9 Wheat. 1; 6 L. Ed. 23 (1824).
4 Railroad Co. v. Husen, 95 U. S. 465 (1877), 24 L. Ed. 527.
5 Lee's, Frederic P. Legislative History of the Air Commerce Act of 1926 (public document entitled Civil Aeronautics), p. 48. This is a very useful and convenient work. See also his complete article on the act in 12 Am. Bar Assn. J. 371 (1926).Google Scholar
6 12 How. 299, 13 L. Ed. 996.
7 Lee's Legislative History, 133. For the laws in 47 states see U. S. Aviation Reports for 1928 and 1929, references in Mr. Newman's article 39 Yale L. J. 1124, n. 49 (June, 1930), and State Adoption and Enforcement of Federal Air Law, by Frederic P. Lee, 16 Am. Bar Assn. J. 715 (Nov. 1930). .
8 Reinhardt , v. Newport Flying Service Corporation, 232 N. Y. 215, 217; 133 N. E. 371; 18 A. L. R. 1324, 1325 (1921). An opinion rendered September 8, 1930, by Assistant Attorney General Messerschmidt to the Railroad Commission of Wisconsin bases the right to use navigable inland lakes upon the idea that hydroairplanes are boats. 1930 U. S. Aviation Reports, 288.Google Scholar
9 The Daniel Ball, 10 Wall. 557, 565 (1870), 19 L. Ed. 999; The Montello, 11 Wall. 411 (1870), 20 L. Ed. 191. The latter case states a rule as to what is navigable.
10 A convenient reference is to the article on “ Navigable Waters” in 45 Corpus Juris.
11 Neismonger v. Goodyear Tire & Rubber Co., 1929 U. S. Aviation Reports, 96, 98 (Feb. 22, 1929, No. Dist. Ohio). An intrastate flying case, in which an injunction has been expected.
12 See “ Aviation Law and the Constitution,” by Newman, Arthur L. II, 39 Yale Law Journal. 1113-1129 (April, 1930).CrossRefGoogle Scholar
13 People ex rel. Cushing v. Smith, 196 N. Y. Supp. 241, 242; 119 Misc. Rep. 294, modified in 198 N. Y. Supp. 240, reversed in 199 N. Y. Supp. 942 (1923).
14 N. J. Laws of 1928, p. 133, of 1929 p. 721, of 1930 p. 332.
15 “ The Air Domain of the United States,” Lee, Frederic P. (1928), partly reprinted in his Legislative History, etc., at p. 104. See especially the very interesting case of Smith v. New England Aircraft Co. (Mass.), 170 N. E. 385, 389, 391 (March 4,1930) for the opposite view. This case deals with the rights of owners of land adjoining an airport. The subject of trespass by passing over is also ruled upon. An injunction was refused, but one was granted in Swetland v. Curtis Airports Corporation, 41 F. (2d), 929 (1930). Judge Hahn's opinion contains an interesting general discussion. At page 937 he points out that the ccelurn of Accursius was probably only a few hundred feet up. For a French case in which damages were allowed, see Dickinson's Cases on the Law of Nations 371 (3 Revue Juridigue de la Locomotion A&rienne, 282). American cases of physical injuries by aircraft are collected in 9 N. C. Law Review, 60 (Dec. 1930).Google Scholar
16 Fifth Year, No. 20, Oct.-Dec. 1929, pp. 266-7, 270-271. One should consult “Aviation and International Law,” by Hudson, Manley O., 1 Air Law Review. 183-210 (April, 1930).Google Scholar
17 New York Times, Oct. 12, 1930. Squadron Leader A. H. Orlebar, of Great Britain, is credited with a speed of 357.723 miles an hour in 1929.
18 Holmes, J., in The Western Maid, 257 U. S. 418, 432 (1921).
19 Ninth International Juridical Congress at Budapest, 2 Air Law Review, 74 (Jan. 1931).
20 For the origin of the rule as to the limit of the marginal sea, see Jessup, The Law of Territorial Waters and Maritime Jurisdiction, 48, 65 (1927).
21 That there is still a space where the air is free, see “ Guns against the Airplane,” 140 Scientific American, 424-7 (May, 1929), where the highest vertical range of fire given is 42,000 feet, and that of the three-inch gun ‘ideal for bombing aircraft flying at the lower altitudes' touches about 30,000 feet. From “ Eight Miles High,” by Robert B. Renfro, 17 Aero Digest, 62 (July, 1930), it appears that Lieut. Apollo Soucek, U. S. N., in a Wright- Apache plane reached a height of 43,166 feet. Bombers are supposed to fly at about 12,000 feet. To quote from the first article mentioned, at p. 424, “ The principal r61e of the gun is to destroy the airplane, or to force it to climb to such high altitudes that it cannot accomplish its mission of obtaining information, taking photographs, bombing or raiding.” Obviously a gun which will do this has a sufficient range for military purposes; no greater is required for any other reason. The range of flight is now higher than the effective range of artillery. An excellent discussion, written before airplanes flew so high, will be found in Merignhac, Les lois et coutumes de la guerre sur terre, 196-202 (Paris, 1903).
22 21 Annuaire de VInstitut de Droit International, 304 (Ghent, in 1906).
23 2 Handbuch des Volkerrechts, 230.
24 1 Droit des Gens, 140-141. The best general reference is perhaps Garner, .J. W., Recent Developments in International Law, 141-160 (1925)Google Scholar, discussing all the theories, with many citations. A classical discussion of freedom of the air is Fauchille's in his Traite de Droit International Public, Vol. 1, Part 2, pp. 581-592, 597, 598, 605, 622 (1925) 8th Ed. by Bonfils. Other recent general references are 1 Oppenheim International Law, 417-424 (McNair's Ed. 1928). “ Developments in Aerial Law,” by Williams, R. F. , 75 U. Pa. L. Rev. 139-153 (Dec. 1926). The Wrights did not begin to fly until 1903. The third edition of Diena's Diritto Internationale Pubblico is now appearing. Professor Diena supports the doctrine of a sovereignty limited in airspace (article of Patricolo Majo, supra.) Google Scholar
25 Compare Grogan v. Walker & Sons, 259 U. S. 80, 87 (1921), 42 Sup. Ct. Rep. 423; 66 L. Ed. 836. Not only should the law permit transit across the country overhead, but the use of airports on the way, if necessary, should be permitted in order to give the right of innocent passage. (Compare Articles 18 and 24 of the Air Convention of October 13,1919.)
26 “ Art. 2. Each contracting State undertakes in time of peace to accord freedom of innocent passage above its territory to the aircraft of the other contracting States, provided that the conditions laid down in the present convention are observed… . ” “ Art. 15. Every aircraft of a contracting State has the right to cross the airspace of another State without landing… . ” Aerial Navigation Convention of October 13, 1919. Printed in Lee's History, etc., 158, 160. The ratifications beginning at page 156 show that nearly all the great civilized nations have adopted the convention, notably the great air Powers, such as the British Empire, France and Italy. Chile, Panama, and Uruguay have ratified it. The right of innocent passage is also granted by the Pan American Convention on Commercial Aviation of February 20,1928, Articles IV and XII, Lee's History, etc., 170,172. We have signed both conventions, but ratified only the latter. See also Note 27.
27 In Venezuela a similar law providing for a monopoly of internal flying by nationals was adopted June 6,1920. There are such laws also in Argentina and Brazil. In Peru, on the other hand, except over certain prescribed areas, foreign aircraft are allowed to fly as low as 3,000 meters. 2 Antokoletz, Tratado de Dereeho International Publico, 371 (Buenos Aires, 1928); Hans Oppikofer (collecting statutes), League of Nations Report, C.339, M. 139. 1930. VIII. 6. Pages 93,111-112; and especially Survey of Commercial Aerial Navigation Law in Latin America by Julius L. Puente, 1 Journal of Air Law, 128 (April, 1930). The right to fly across the country without previous permission of the local authorities, in the absence of an arrangement by convention, has been refused in Argentina, Brazil, Chile, Colombia, Cuba, Salvador and Venezuela. Already in 1916, however, Panama had taken counsel of her hopes instead of her fears. In Article 1968 Codigo Administrative it is written, “ Agrial Navigation is free over the whole territory of the Republic without any other restriction than as provided by law for the proper security of the State.” There at least the new ways opened by science and inventive genius have not been closed by law. As pointed out by Henry-Couannier in his Elements Criateurs du Droit Adrien (Paris, 1929), the doctrine of absolute sovereignty of the air has worked in the interest of the small states, which can on this basis close their air frontiers against the world. An excellent account of the present world situation will be found in Kenneth W. Colegrove, International Control of Aviation (Boston, 1930). Professor Colegrove thinks the United States should ratify the Air Navigation Convention of 1919 as amended (pp. 93-94). This would automatically give Congress power to regulate intrastate commerce, for the purposes of the convention. Missouri v. Holland, 253 U. S. 416 (1920). In Henry-Couannier's book (144), the following countries are given as having adopted in their legislation the principle of the freedom of the air: Germany, Austria, Bulgaria, Danzig, the Sarre, Switzerland, and Yugoslavia. (Attention is called to his international bibliography at page 299-.)
28 See “ Sovereignty of the Air” in this Journal, Vol. 7 (1913), p. 470.
29 Zeitschirft für das Gesamte Luftrecht 4,16 (1928). At the 1930 meeting in New York of the International Law Association, one of the principles adopted was that all countries should agree to an Air Navigation Convention in which each contracting party should undertake to accord in time of peace freedom of innocent passage above its territory to private aircraft of the other contracting parties, provided that the conditions laid down by the convention are complied with. 1 Air Law Review, 468 (Nov., 1930).
30 No. 572, 69th Congress, 1st Session.
31 Report to League of Nations, etc. C.339.M.139. 1930. VIII. 6. p. 81 (Geneva, 1930).
32 Colegrove, International Control of Aviation, 38.