I have now completed that which I set out to
do, namely, to show how the law in relation to
aircraft has developed from the time of its inception
to the present day. The period covered has been
short, less than fifty years, and, since the law is
of such a modern nature, I have found difficulty in
presenting anything in the way of historical
research. I have been compelled to discuss a law as
it now exists with the result that I have tended to
consider the future rather than to reveal the past.
Another factor which has contributed to the difficulty of research is the multiplicity and diversity
of the problems which arise in connection with what
I have termed "the law in relation to aircraft." That
law is not confined to one particular branch. On
the contrary, it is difficult to find a branch of the
law which is not affected by the origin and development of aviation. This has rendered continuity of
treatment almost impossible. It has had a further
effect, for, to prevent this thesis being of
inordinate length, I have been unable to make more
than a cursory examination of topics which are
worthy of more exhaustive study - topics, which would
in themselves constitute fit subjects for a legal
thesis. Nevertheless, while the material available
for research in Great Britain is limited and I have
been thrown back for my information on Continental
and American publications, access to which is
difficult, I hope I have succeeded in showing the
various stages in what I consider a remarkable and
rapid development in a sphere of law about which little is generally known and which has many peculiar
features of absorbing interest.
I do not intend to recapitulate and I shall
reiterate but one thing. The barest glance is
sufficient to show that the outstanding characteristic
of aviation law is the rapidity with which it has
progressed to a very high degree of development. For
instance, whereas in 1910 the term "aircraft" was
defined in the Paris Convention as comprising "free
balloons, airships, and flying machines ", in 1935 it
comprises "all machines which can derive support in
the atmosphere from the reactions of the air ", and the
word aeroplane which it was not thought necessary to
define in 1910, is now defined as
"a mechanically-driven aerodyne supported in flight by
aerodynamic reactions on surfaces remaining fixed under
the same conditions of flight"
a definition of which the layman is blissfully ignorant.
We have not yet reached the stage in the development
of aviation in which Tennyson
"Saw the heavens fill with commerce, argosies of
magic sails,
Pilots of the purple twilight, dropping down with
costly bales;
Heard the heavens fill with shouting, and there
rained a ghastly dew
From the nations' airy navies grappling in the
central blue;"
but the present generation has witnessed extraordinary
progress in that direction. The generations of the
future may see even greater progress. They will
certainly see it in the law.
The law has advanced far but I am of opinion that,
remarkable as the development has been, it is more
apparent than real. When one regards the mass of
Statutes, Rules and Regulations which are now in force
one is tempted to think that considerable progress has been made. Actually they are only the bare foundations
of the law on Which future generations will require to
erect and carve the edifice. They are merely the
objects on which the experiments are about to be made.
I would not even say that those foundations which
have been laid are themselves secure and it may well
be that they will require to be pulled down and
reconstructed before the walls can be erected. For
example there are the organisations at work on the
development of the law. I have shewn that they are
numerous. They are also working at cross purposes
for they represent conflicting interests. Among
industrial concerns, it has been found advisable, within
recent years, to undertake the process of what is known',
as rationalisation - the elimination of those concerns
working at a loss and the combining of the profit - making fragments into one successful profit -making
whole. I consider that among the organisations
existing to further the development of aviation law
some such process of rationalisation might be profit:
:ably undertaken. The I.C.A.N. is one which could not
be dispensed with but there are others whose functions
could be incorporated in one of its Sub-Commissions.
Then there is the law itself. I have shewn that
the tendency is towards complete uniformity', but, while
it sounds well to say that the laws must be uniform,
it is no simple matter to put the proposition into
practice. There is always a danger of pressing the
principle of uniformity too far. The danger arises
from confusing the idea of uniformity to legal
principles with uniformity of detail. It is one thing
to get the principles of the law the same in various
countries, it is another to make the details the same.
The one is possible but the other is not. It was for
this reason that the Havana Convention was completed
without Annexes such as are appended to the Paris
Convention. It was felt that it would be better to
agree on the principles to be observed and leave
the details to the various States. I do not for one
moment advocate that the Annexes to the Paris
Convention should be discarded for I cannot conceive
that this would be either practicable or desirable,
but when one considers the Carious projected
Conventions prepared and submitted by the C.I.T.E.J.A.
one can appreciate better the attitude of the States
parties to the Havana Convention. Not only are they
a mass of detail. They are complicated in yet another
respect - that of language.
The Paris Convention has three "official" texts,
French, English, and Italian. The other proposed
Conventions are usually in French. This makes
interpretation difficult, and, as in matters of detail
they tend to introduce notions which are entirely
foreign to some national legal systems, it will
readily be recognised that, far from creating
uniformity, they will have the very opposite result.
In the Protocol of Amendments to the Paris
Convention which came into force on 17th May, 1933, it
is provided that, as far as concerns interpretation,
"in case of divergencies the French text shall prevail;
but this is not sufficient. Presumably, in any
question concerning the interpretation of a Convention,
say the Warsaw Convention, the text in which it is signed., the French text, would prevail, but I cannot
conceive the position which would exist in Scotland
if the Court of Session was called upon to
interpret the French text of a Convention,
particularly when it was introducing a principle
which was Continental and entirely contrary to the
established principles of the Scottish Law. It
would inevitably interpret it, so far as possible,
according to the Law of Scotland. A French Court
might give it an entirely different meaning. The
result is confusion.
I must confess that I cannot see how any
change can be made in the manner in which such
International Conventions are concluded. I am also
unable to see how the Courts can interpret them in
the light of a law other than their own national
law. The remedy must lie in another direction, and
that direction I think is obvious - the Internation:
:al Court first mooted by the Fifth International
Congress on Aviation Law. I can conceive no better
remedy, and, for law so essentially international
as aviation law, there can be nothing so absolutely
essential as the formation of an International
Court available to private individuals to settle
the differences of interpretation which must
inevitably arise.
If further support of this contention is
required it is to be found in the matter of juris:
:diction to which I have referred elsewhere. The
specialities of aviation and the rapidity with which
aircraft can proceed from one country to another
make it difficult, although not impossible, to apply the existing rules of Private International
Law. The various proposed Conventions make
special provisions as to jurisdiction to suit
the peculiar circumstances of the matters to
which they relate, but in doing so they create
complications, and diversity rather than uniform:
:ity of the rules by which jurisdiction is to be
determined. The position would be entirely
changed and greatly simplified if all such
matters could be dealt with by an International
Court, the judgments of which could be enforced
against the defender in his own national State.
It must not be assumed that the topics
which I have considered exhaust all the matters
which are likely to arise in aviation law. I
have covered the ground as it is today, but, with
the further progress in aviation, new problems
will be added to the many which still await a
solution. I cannot prophesy what those may be,
but I would end this treatise by mentioning one
which is already visible on the horizon'and which
is of great importance in the realm: of Internat:
:ional Law. I refer to the "seadrome ", the
French equivalent of which, "L'île flottante ",
has even greater significance. It is the
floating structure, the aerodrome of the sea, on
which aircraft engaged in transoceanic flights
can land for refuelling or repair.
The creation of the seadrome is indispensable
in the interests of aviation, but, as its utility
only arises when it is moored on the High Seas,
the very mention of it has started the pens of
jurists in much the same way as did the first appearance of aircraft. The crux of the whole matter
is that the construction by one nation of a seadrome
on the High Seas is a violation of the recognised
principle of International Law that no nation can
claim jurisdiction over the High Seas which will
exclude an equal jurisdiction by every other nation.
It may be that its construction is not legitimate but
the interests of aviation must, in this case, prevail.
The basis of discussion, therefore, must be that a
seadrome can be constructed, but if that is so what is
its legal position? Is it under the sovereignty of
the State which constructed it? Is it to be regarded
as the exclusive territory of that State: Can the
aircraft of other nations be precluded from using it?
Those are but a few of the questions to which its
construction gives rise.
The seadrome has to be regarded as sui generis.
It is not an "island" in the true sense of the word
for, at the First Conference for the Codification of
International Law, an island was thus defined:-
"Une ile est une étendue de terre, entourée d'eau,
qui strouve dune maniére permanente au-dessus
de la marée haute."
Floating structures of the nature of the seadrome were
expressly referred to as falling outwith the scope of
that definition. So also, from its very nature, the
seadrome cannot fall within the definitions of a
"ship ". It has characteristics of both the island and
the ship but it is neither one nor the other.
It is not my intention to examine in detail the
views which have been expressed as to the legal posit:
:ion of "L'île flottante ". They are many and one can hardly find agreement on any point. Dr Sandiford
supports the theories of the Comité Juridique
International de l'Aviation in giving the entire
ownership and control to the state which constructed
it. M. Giannini and M. de Fonsega Hermes go to the
opposite extreme by denying ownership and control to
any one country and putting the control under the
League of Nations. One thing is certain. The
seadrome must be free to all nations and its ownership
and control must be regulated by international
agreement. More justice will be done by denying the
right of States to create additional national territorz
by way of erecting seadromes than by permitting them
to do so, and I consider that the seadrome should be
under the control of an International Commission.
Thim would be in the best interest of all concerned.
In any event, in time of war, the seadrome must be
neutral territory, for it is unthinkable that it
could ever be regarded as belligerent territory.
The seadrome presents many interesting internat:
:ional legal problems and one could enlarge upon the
points which I have Ilust raised. That is not my
intention. .I have mentioned them only to show that,
great as has been the development of the law in
relation to aircraft in the past, it is not Complete.
It will be for future generations to add to the
foundation which i have endeavoured to lay by writing
a thesis on the subject at this time.