Aircraft in peace and the law

UNIVERSITY OF CALIFORNIA
AT LOS ANGELES

AIRCRAFT IN PEACE

AND THE LAW

^f*

MACMILLAN AND CO.. Limited

LONDON . BOMBAY . CALCUTTA . MADRAS
MELBOURNE

THE MACMILLAN COMPANY

NEW YORK . BOSTON . CHICAGO
DALLAS . SAN FRANCISCO

THE MACMILLAN CO. OF CANADA. Ltd.

TORONTO

AIRCRAFT IN PEACE

AND THE LAW

BY

J. M. SPAIGHT

O.B.E., LL.D., AUTHOR OF " AIRCRAFT IN WAR," KTC

MACMILLAN AND CO., LIMITED
ST. MARTIN'S STREET, LONDON

I 9 I 9

COPYRIGHT

o

CONTENTS

CHAPTER I

AIR FRONTIERS

PAGE

The Great War and the sovereignty of the air — The attitude of Ger-
many— The attitude of Great Britain — Theorj^ before the War —
The Paris Conference of igic — Weakness of the case for free
circulation — Pre-war legislation presumed sovereignty — Air
frontiers bolted and barred in August, 1914 — The closure of the air
f^ frontiers a thorough one — The principle of sovereignly established

— The International Convention and sovereignty in the air. . 1

^\N CHAPTER n

THE NATIONALITY AND REGISTRATION OF AIRCRAFT ^

Nationality and registration as conditions precedent to international
circulation — The selection of a nationality : five possible
choices — (i) The nationality of the country of construction —
(2) The nationality of the country of registration — (3) The
nationality of the country of the owner's domicile- — (4) The
-r nationality of the owner's own country of nationalitj- — i'^) The
^ nationality of the country of the port d'attache — The maritime
>- precedent a misleading one — The nationality and registraticn of
-^- ships — The difference between seacraft and aircraft — The
" home " or " headquarters " country as governing nationality- —
The case of aircraft belonging to corporations — The purpose of
registration — Registration as a " live " record — Weakness of the
arguments as to the necessity for providing for (i) some law to be
applied in the air ; — and (ii) diplomatic protection and military
requisition — A possible solution of the problem — The nation-
ality of the crew 12

CHAPTER HI

THE CERTIFICATION OF AIRCRAFT AND PILOTS

The object and method of safety provisions- — The safety provisions
of the Automobile Convention — The safely provisions of the
Maritime Conventions — The Convention en Safely of Life at Sea
— The Merchant Shipping Acls — Safety provisions for air
locomotion — Ihe purpose of safely certilication in Ihc case of

' V> 'V ^ fv

vi CONTENTS

PAGE

aerial locomotion unprecedentedly wide — The difficulty of certi-
fying airworthiness — An early expert view as to certification of
airworthiness — The pre-war regulations and projects : (a) Those
requiring certification of the machine — {b) Those requiring
certification of the pilot, but not of the machine — Certification
of passenger-carrying aircraft — A Lloyd's Register for aircraft —
The Convention of 1919 and the certification of airworthiness —
Certification under the Air Navigation Regulations — Period of
validity of certificates — The certification and licensing of pilots
and crews — The testing and licensing authority — An inter-
national standard for pilots' certificates 28

CHAPTER IV

ENTRY AND LANDING OF FOREIGN AIRCRAFT

The formalities to be observed by the international aviator — The
Franco-German Accord of 1913 — The Home Office Regulations
of 191 3 — -Free Zeppelin rides for officials — The severity of the
British pre-war rules — The leaving certificate and the prior
notification of a flight — The system of air corridors of entry — The
necessity for corridors of entrance— Where an aviator must, and
may, land — The pre-war regulations as to landing — Landing
on private property — The strange doctrine C71JHS est solum . . . —
The right to fly over private property — -The absurdity of private
ownership of the clouds — M. Passion's formula^The right to
land in private property — The difficulty of knowing private
ground — The protection of the human birds of the air — Techni-
cal progress the probable solvent of the legal difficulties . . 44

CHAPTER V

CUSTOMS

A question of administration rather than law — The proposals made
at Paris in 1910 and 1919 — Pre-war legislation as to customs —
The views of Judge Meyer and Dr. Wiirth — The turning of the
customs frontier— Customs houses must move inland — The
system of manifests — Smuggling by air — The goods suitable for
illicit air running — The prevention of air smuggling — Recent
regulations for aerial customs control — The International Con-
vention of 1 9 19 — The special privileges of postal and certain
other kinds of aircraft — -The rules of Annex H of the Conven-
tion— The " customs hours " — The examination of dutiable goods
— Forms of entry of imported goods — Drawback on exports . 5i

CHAPTER VI

DAMAGE

The various kinds of damage — The difficulty of legislating inter-
nationally— The general principle of law as to Third Party
Damage — The exceptions : Rylands v. Fletcher and other cases —
The French law as to damage — French judicial interpretation
of the law in aircraft cases — The plea of force majeure in air-
craft damage cases — The doctrine of absolute liability — The
theory of fault and the theory of risk — 'The theory of risk and the

CONTENTS vii

. • PAGE

development of aviation — Absolute liability the only equitable
rule — The view of the Civil Aerial Transport Sub-committee —
The American view, and the practical arguments for it — The
enforcement of the right to indemnification — The proposal of the
Comite Juridique — The proposal of Professor Hans Sped — A
possible variant of the Sperl proposal — Another possible
solution — Acceptance of the doctrine of absolute liability
essential to its success — The assessment of the damage . . 74

CHAPTER VII

COLLISIONS AND WRECKS

Air collision and international regulation — The rules of the Syndicat
General, 19 10 — The rules drawn up at the Paris Conference, 1910
— The rules issued with the Decrets of 1911-1913 — The rules of
the Convention of 1919 : (i) Lights ; — (ii) Landing and distress
signals ; — (iii) Rules of the road ; — (iv) Rules for taking off
and alighting — The enforcement of Flying Regulations — The
jurisdiction and law to be applied — The proposals of MM.
Fauchille and Von Bar — The view of Dr. Guibe — The dual aspect
of an avoidable collision — The need for constructive legislation —
British law as to maritime collision — French law as to maritime
collision — Wrecks [epaves) : M. Fauchille's proposals — The dis-
cussion of wrecks at the Comite Juridique — The terms proposed
and agreed at Paris, 191 9 — Pre-war legislative proposals as to aerial
\vrecks — The disposal of maritime derelict and wreck — The dis-
posal of aerial wreck — Notification of, and first aid after, crashes . 89

CHAPTER VIII

LAW IN THE AIR

Icarus and the Law — The nature of the problem — The four classes of
wrongful acts — -Contraventions of Flying Regulations — Con-
traventions of Defence, Immigration, or similar enactments —
" Common law " crimes and torts— Extradition an inadequate
solution — The execution of foreign judgments — States not
interested in acts done within passing aircraft — The " Law of the
Flag " : some early proposals — The case for applying the law of
the flag — The doctrine of the " Volume frontier " — The essential
difference between air and sea travel — The machina itself turned
deus — The case for " analysing the load " — The choice of a juris-
diction and a law — The Home Office view in 1911 — Jurisdiction
in civil cases — The analogy of the " law maritime "—The two
cases : (a) the air journey within a given country ; — {b) the air
journey to or from abroad — The difference between crimes and
torts — The " normal "forum for crimes — Crimes and torts affect-
ing the subjacent State — Torts committed in the air — Contracts
made in the air — Last wills and testaments — Questions of an
aircraft crew's discipline, wages, etc. — Summary of the ])ro-
posals as to jurisdiction — The necessity for detailed rules —
Military aircraft and exterritoriality — The definition of military
aircraft — The difficulty of both definition and prol)il)ition —
Public (non-military) aircraft and exterritoriality .... 106

viii CONTENTS

PAGE

Appendix I — Paris Convention on International Air Navigation, 1919
— Text of Convention, with Annexes A (Marking of Aircraft),
B (Certificates of Airworthiness), C (Log-books), D (Rules as to
Lights and Signals, and Rules of the Air), E (Minimum Qualifica-
tions necessary for obtaining certificates as Pilots and Navigators),
H (Customs). [Note. — Two technical Annexes, F and G, are
omitted) I37

Appendix II — Air Navigation Regulations, 1919 — Text of the
Regulations, with Schedules I (Registration of aircraft), II (Li-
censing of personnel). III (Certificates of airworthiness for
passenger aircraft, and periodical overhaul and examination of
such aircraft), V (Log-books), VI (Prohibited areas), VIII (Rules
as to aircraft arriving in or departing from the United Kingdom) .
{Note. — Schedules IV (Registration and nationality marks) and
VII (Rules as to lights and signals and rules of the air) are
omitted as the same rules are given in Annexes A and D of the
International Convention, Appendix I) 182

Appendix III — Precedents, drawn from the Great War, bearing on

the question of the sovereignty of the air 203

Bibliography 217

Index 229

I

J

AIRCRAFT IN PEACE

AND THE LAW

CHAPTER I

AIR FRONTIERS

The Great War and the Sovereignty of the Air

The Sub -Committee of the Civil Aerial Transport
Committee, in its report of 2 January, 1918, makes the
following statement : —

" Since the outbreak of war the principle of
State sovereignty over the air has been generally
claimed, and, except by Germany, recognised ;
Holland, Denmark, and Switzerland have con-
sistently regarded the passage of belligerent air-
craft over their territory as an unneutral act, and
taken active steps to vindicate their rights."

This statement of the position goes at once too far
and not far enough. It implies, first, that Germany
disputed the principle of air sovereignty and that all
other Powers concerned, including Great Britain, did
not ; and, secondly, that — the purpose being to show
the general enforcement by neutral Powers of their air
sovereignty — the instances of opposition to belligerent
entry are furnished by the three neutral States expressly
named. The fact is — to dispose of the second point
first— that Norway, Sweden, Spain, China, Italy
(while neutral), Bulgaria (while neutral), and Roumania
(while neutral) also closed their air frontiers to bclli-

B

2 AIRCRAFT IN PEACE chap.

gerent aircraft and interned any airmen who penetrated
their atmosphere.^ Instances are given in Appendix
III, in which the writer describes in more detail than
could be given, without loss of perspective, in this
chapter the action taken by various Powers to prevent
belligerent entry of their air.

The Attitude of Germany

As regards the other point, it is true, first, that
German airships and aeroplanes did repeatedly cross
the frontiers of neutral States, and, secondly, that no
scruples of conscience would have deterred Germany
from sending her aircraft over neutral territory any
more than they deterred her from sending her columns
of route into Belgium in August, 19 14. On the other
hand, it is unquestionably true that Germany again
and again admitted most specifically the principle of
the sovereignty of the air, in so far as such an admission
is implied in the issue of orders to airmen not to fly
over neutral territory, in the expression of regret
when they did so, and in the punishment and removal
from the corps of aviators, in some cases, of those who
failed to comply with the instructions given. Of course,
in her orders and apologies, Germany may not have
been sincere ; but, as the entry of her aircraft into
neutral air meant the loss to her of a large number of
aeroplanes by internment, of at least one airship owing

[R.D.I. = Revue de Droit International Public ; R.J.L.A. =
Revue Juridique Internationale de la Locomotion A^rienne.]

1 The circumstances of the war gave occasion for no similar protest
or action by Serbia, but that State's views as to aerial frontiers are
clear from the Regulations which were issued in the Official Journal
of Serbia of 21 February — 16 March, 1913. " In time of mobilisa-
tion and of war," said Article 12, "no foreign aircraft whatever
(whether private, public, police, etc.) may fly over Serbian territory,
except with the special permission of the Ministers of the Interior
and of War. It is strictly forbidden for a foreign militaiy aircraft
to fly over Serbian territory, even in time of peace." Article 13
adds : " All machines flying over Serbian territory in time of
mobilisation and of war, without permission and the identity mark,
will be regarded as machines of the Enemy State and treated as such."
(R.J.L.A., 1914, p. 159.)

I AIR FRONTIERS 3

to fire from the neutral State's forces, and of many
scores of skilled aviators, it is unlikely that she delibe-
rately authorised or encouraged her flying officers to
cross the frontiers of neutral States.

The fact that belligerent aircraft fly into neutral
atmosphere cannot be taken as proof that the State to
which they belong declines to recognise the principle
of air sovereignty. French, British, Belgian, and
Italian aircraft occasionally, though perhaps not to the
same extent as German, penetrated neutral atmosphere.
Indeed the most unfortunate incident of the whole
war in this respect was one in which a British machine
was concerned. This w^as the incident of the night of
29-30 April, 19 1 7, when bombs were dropped on the
Dutch village of Zierikzee in Schouwen Island and
three persons were killed and about a hundred houses
damaged. After a prolonged inquiry the British
Government accepted the view that the bombs were
dropped by a British airman and expressed its profound
regret. Beyond any question w^hatever the aff"air was
a pure accident which was deeply regretted by the
British authorities and flying services. It is only
referred to here to show that the actions of a State's
airmen cannot be regarded as conclusive evidence of
an intention on the State's part deliberately to violate
neutrality.

The Attitude of Great Britain

As a matter of fact, the only Power which made any
official reservation from acceptance of the principle of
sovereignty v/as Great Britain. The British reply to
the Swiss protest against the passage of British and
French aircraft over Swiss territory, on the occasion
of the Friederikshafen raid in November, 1914, ex-
pressed regret and stated that the airmen had been
given orders to avoid Swiss territory, but added that
" the orders given to the aviators and the expression
of regret were not to be interpreted as a recognition by

13 2

4 AIRCRAFT IN PEACE chap.

the British Government of the existence of a sovereignty
over the air." There is no record of any other Power,
beUigerent or neutral, on any occasion making a similar
reservation. " There is now," says Professor Rolland
of Nancy, speaking of the right of States to close their
aerial frontiers,^ " a veritable custom. No belligerent
has protested against the attitude of Switzerland,
Holland, and Norway when these States have published
prohibitions [of entry of their air]. England, no doubt,
has reserved her opinion on the question of the
sovereignty over aerial space. But the right to pro-
hibit passage may result from something other than the
sovereignty of the subjacent State. . . . The pro-
hibitions issued seem to have been regarded as quite
natural almost everywhere. All the elements of a
custom are here combined : practice, a doctrinal
solution in agreement with it, public opinion to
support it."

Theory before the War

This general recognition of the right of a State to
close its air frontiers is a remarkable phenomenon in
view of the early history of the question. It was one
which was much debated in the years from 1909 to
1914, and, so far as the weight of expert opinion went,
the theory that commanded the greater number of
votes was that which conceived aerial circulation as
free. The opponents of this theory, v/riters like Dr.
Jenny Lycklama in Holland, Professor Arnaldo de
Valles in Italy, M. Guibe in France, Professor Sir
Erie Richards and Dr. Harold Hazeltine in England,
brought forward strong practical arguments for the
contention that State sovereignty extended into the
air and emphasised the point that the other view was
based on a confusion between the air as an element
and the air as a space. To the hard-shell champions
of free circulation, however, their views — as one of
their critics said — were demodees and out of tune

2 R.D.I., 1916, p. 577.

I AIR FRONTIERS 5

with the needs of the time. The air, they repeated,
was of its nature insusceptible of appropriation.
" Why copy Artaxerxes," cried M. Henry-Coiiannier,
" in scourging the disobedient sea .? " ^ England, said
Baron de Stael-Holstein, in upholding the sovereignty
of the air, simply showed that she had not arrived at
comprehending the principle of the interdependence
and reciprocity of nations and the doctrine of inter-
national servitudes.* The International Law Associa-
tion, indeed, approved the principle of State sovereignty,
in its session at Madrid in 1913.^ It is true that it
added to its acceptance a proviso that " liberty of
passage of aircraft ought to be accorded freely to the
aircraft of every nation " ; but sovereignty remains
sovereignty whatever limiting formula may be tacked
on to the substance of the admission, and even a
" servitude of innocent passage " does not greatly
affect a State's mastery of its air if that mastery is
accepted. The International Law Association stood
alone among the learned expert bodies. The Institute
of International Law accepted the principle of free
circulation (Session of Madrid, 1911).^ So did the
Comite juridique international de 1 'Aviation (Session
of Paris, 1911)."^ The majority of the representatives
of the European States who met in an official conference
at Paris in 19 10 were in favour of the same principle.
In fact, it would have prevailed there — it trembled in
the balance, when the British representatives sent the
sword of sovereignty clanging into the scales. Thence-
forward the freedom of the air was a lost cause.

The Paris Conference 0/ 1910

There is a myth that the proceedings of the inter-
national official Conference of 191 o were shrouded in

3 R.J.L.A., 1911, p. 4. « K.J.I>.A., 1912, p. 309.

' Report of 28th Conference of International Law Association,
1914.

^ Annuaire de I'Instiiut de Droit Inlernadonal, 191 1, y>- 34'^-
' R.J.L.A., 191 1, p. 201.

6 AIRCRAFT IN PEACE chap.

baffling secrecy during eight long years and that the
report of the Civil Aerial Transport Committee first
let in light upon them in 1918. In cold fact, all that
was of importance in the proceedings and their results
was disclosed before the war by Catellani in Italy
(Le Droit aerien, translation by M. Bouteloup, Paris,
191 2) and by Blachere in France {Uair voie de com-
munication et le droits Paris, 191 1). There was never
very much mystery about the fact that the Conference
failed to agree upon the question of the freedom or
sovereignty of the air. Its failure is a sufficient
answer to those who ask whether the question is not a
purely academic one or whether there is any real
difference between freedom with a reservation to the
subjacent States of all rights necessar}^ for their pro-
tection and full sovereignty with an understanding
that innocent passage shall be allowed as a matter of
comity. A question that was academic or immaterial
would never have wrecked a Conference of practical
officials.

Weakness of the Case for Free Circulation

The weakness of the doctrine of free circulation is
that its basis is unsound. As Professor Merignhac of
Toulouse has observed,^ those who claim, like M.
Fauchille — the protagonist of the doctrine of freedom
— that, while circulation is free, subjacent States have
all the rights necessary for their preservation, must
have something on which to base those rights, and
that something can be nothing more or less than
sovereignty. There is no reason to suppose that such
sovereignty will be used to trammel flight, that a
country like Switzerland, which has no tidewater
frontiers, will be stifled in the air. International
practice and special conventions will suffice to clear the
aerial passages. No view is practicably possible save
that which regards the air above a State as the public

s R.D.I., 1914, p. 209.

I AIR FRONTIERS 7

domain of that State — '* the King's airways," as we
might term our British air. It does not follow that
the aerial corridors will be closed to foreign aircraft,
any more than our rivers are closed to foreign vessels
or our roads to foreign automobiles.

Pre-war Legislation presumed Sovereignty

Before the war there were signs and tokens that the
doctrine of sovereignty was winning the day. The
British Aerial Navigation Acts of 191 1 and 1913
assumed for Great Britain the power to close her aerial
frontiers, and regulations issued by the Home Ofhce
under those Acts forbade the passage of aircraft over
great tracts of the coast-line of Great Britain. Ger-
many and France similarly prohibited the crossing
of extensive portions of their air frontiers.^ The
closing of the air frontiers was the occasion of much
concern to the champions of flight. *' England has
begun it," said the Bulletin Officiel of La Ligue
Nationale Aerienne in 1914,^^^ '* Russia, Italy, Austria
have followed, then France has been obliged to con-
form ; they have forbidden flight over large stretches
of their territories, and if this continues, soon all the
frontiers will be closed to aerial navigation." ^^ " The
regulations issued by the Great Powers," wrote
another technical journal in November, 191 3, -"^
" amount, under pretext of ensuring national defence,
to a prohibition of passage from State to State."
" As to the passage from France to Germany," wrote
M. Ernest Archdeacon in 1913,^^ " it appears certain

^ R. Piogey, Des regies de droit international applicables a I'aviation,
pp. 57 ff.. Ill ff.

10 R.J.L.A., 1914. p. 24.

" Already in 1912 the German authorities in Upper Alsace had
issued confidential instructions to the f>;endarmes, customs officers
and forest-guards, authorising them to fire, where necessary, upon
foreign airmen whose acts were " of a nature to compromise the
order or security of the empire." (R.J.L.A., IQ12, p. 336.)

" R.J.L.A., IQ14, p. 28. See also R.J.L.A., 1913. PP- 308-318.

" R.J.L.A., 1913, p. 291.

8 AIRCRAFT IN PEACE chap.

that no aviator will dare to attempt it with this fan-
tastic draught-board of prohibited zones." There
was some exaggeration here, but there was unquestion-
ably, in the action of the Powers, a clear indication
that the Governments were tending towards the view
which Great Britain upheld at Paris in 1910.

That view, in fact, amounted after all to a claim
that England was England, France France, and so on.
The very words of the French Presidential Decret of
21 November, 1911,^ — -" La circulation en France des
aeronefs militaires etrangers est interdite " ^^ — are a
claim that the French clouds are France. England
is England and France is France : that is the doctrine
of sovereignty and it is the only sound one.

Air Frontiers Bolted and Barred in August^ 19 14

The moment war came the air frontiers closed with
a Janus-like clang. Article 10 of the French Decret
of 24 October, 191 3, had already provided for the
complete interdiction of aerial navigation in the event
of a total or partial mobilisation, and the order for
mobilisation was sufficient to bring this prohibition
into force.^^ A French Decret of 31 July, 1914,
further specifically prohibited flight over French
territories and waters.^^ A Home Office Order in
England forbade flying over the whole area of the
United Kingdom and the coast-line and territorial
waters, except within three miles of a recognised
Aerodrome. Holland, Switzerland, and Italy forbade
the entry of foreign aircraft into their air.

The Closure of the Air Frontiers a Thorough One

It is important to observe that the rules issued or
enforced by the neutral Powers and recognised by the
belligerents assimilated neutral atmosphere to neutral

" R.J.L.A., 1911, p. 305. 15 Piogey, op. cit., p. 113.
IS R.D.I., 1916, p. 590,

I AIR FRONTIERS 9

territory. Before the war it was an open question
whether, even if sovereignty of the air was claimed, it
would amount to much more than the atteiiuated
sovereignty which a State exercises over its territorial
waters.^ '^ As regards entry from the coast-line, espe-
cially, it had been urged that, like warships, belligerent
aircraft should be allowed to seek asylum and effect
the necessary repairs, leaving again within a defined
period, if they came from the sea.^^ But, in the practice
of the war, no such entry was allowed. Aircraft
coming into neutral atmosphere over maritime and
over land frontiers were treated alike. When the
L.19 was fired at and hit by the Dutch troops in
Ameland on i February, 1916, the Deutsche Tages-
zeitung claimed that a belligerent airship had as much
right to land for repairs on neutral soil as a damaged
warship had to enter a neutral port for that purpose.
The other German papers hailed this doctrine with
delight and the Berliner Tageblatt was much abused
because it stated that the Dutch were entirely justified
in firing upon the airship. In a letter to the Times
(12 February, 1916), Dr. Pawley Bate pointed out
that the German claim was already disposed of by the
German Professor Wehberg of Diisseldorf, who had
correctly formulated the rule as follows : A water-
plane which has lost the power of flight and is only
able to propel itself through the water is properly
assimilable to a warship and should be allowed the
recognised twenty-four hours to effect repairs ; but
an aircraft which flies into neutral air space comes
under the rules of land warfare, which apply to the
air over neutral territory. As was pointed out by
Holland in an official reply to Germany in March,
19 1 6, the very fact of a belligerent aircraft's entry
into neutral atmosphere justifies the neutral State
concerned in taking action to intern the aircraft or,
if it does not land, in bombarding it. I'he air was in

^' See M6rignhac, Le domaine adrien, R.D.I., 1914, p- -208.
*" See Lycklama, La souverainete adrienne, R.J.L.A., lyio, p. 311

10 AIRCRAFT IN PEACE chap.

fact treated like the land, as a domain absolutely closed
to the belligerents, and the belligerent Governments
made no such claim to a right of entry for their air-
craft under force majeure and of subsequent departure
as was anticipated by M. Fauchille and many other
authorities before the war. The fact that the airman
Gilbert, who landed in Switzerland through engine
trouble in June, 191 5, was sent back to internment by
the French authorities when he escaped under circum-
stances which involved in some degree a breach of
parole, is significant as evidence of the recognition of
a new rule of International Law.

The Principle of Sovereignty Established

That new rule is that, in war time, air frontiers are
closed. It may be argued that the rule results not
from sovereignty in the air but from the needs of
national defence, and that it does not prejudge the
question of sovereignty under peace conditions. But
such an absolute, unconditioned prohibition of passage
as the war witnessed can be based only on sovereignty,
and if a State can close its air frontiers in war, what
legal or logical ground is there for denying its right
to do so in peace ? The important point is that,
under certain conditions, States can and do close their
air frontiers. If this does not amount to sovereignty
in the air, it is something so akin as properly to be
called by that name. Right or wrong, the principle
has been established that States control the atmo-
sphere over their territories, and, in legislating for the
air, we must start from that principle. The precedents
by which the principle has been established are of great
historical importance ; they are given in some detail
in Appendix \1\P

18 The establishment of the right of States to close their aerial
frontiers is destructive not only of the view that there is no
sovereignty, or that there is only a restricted sovereignty, vested
in States over the air covering their territories, but also of the
view held by Catellani in Italy and D'Hooghe in France that there

I AIR FRONTIERS ii

The International Convention and Sovereignty in
the Air

The International Convention which has just been
signed at Paris admits in expHcit terms the sovereignty
of the air.^'^ The contracting States undertake to
allow freedom of innocent passage to one another's
aircraft, but the strength of the recognition of
sovereignty is not abated by a concession of this kind.
The right to land in another State's territory, moreover,
is not admitted, though the reason for this implicit
reservation is not to forbid landing, but to subject it
to such conditions as the subjacent State may impose.
The State in question might be willing, for instance,
to afford a greater freedom in this respect to " pleasure "
aircraft, or aircraft which merely called at one stopping-
place in its territory, than to those which, by taking
up passengers or goods at one point in the country
and setting them down at another, in the course of a
longer international service, might be held to be
competing unfairly with the local aircraft interests.

For the present the battle for the sovereignty of
the air has been won ; but the voices which clamoured
before the war for freedom in the air may be beard
again. It is important that there should be no weaken-
ing in this matter. In the future sovereignty will be
as vitally necessary to national defence in the air as
on the land or in the tidewater reaches.

is sovereignty over the air, and full sovereignty, but it is the co-
existent sovereignty of all the States, not the sole sovereignty of
the subjacent State. For this view, which would make the air a
res communis, see E. Catellani, Le droit aerien, trad. M. Bouteloup,
Paris, 1912, p. 33, and E. D'Hooghe, Droit aerien, Paris, p. 9-
^o See Appendix I for the text of the Convention.

CHAPTER II

THE NATIONALITY AND REGISTRATION OF AIRCRAFT

Nationality and Registration as Conditions Precedent
to International Circulation

The various International Conventions which have
been drafted, officially and unofficially, to regulate
aerial circulation agree in providing that, to enjoy the
benefits of the Convention, an aircraft should possess
the nationality of one of the contracting States, that
the State conferring its nationality upon an aircraft
should register it, and that when flying over the other
States' territory the aircraft should bear the mark of
its nationality ('' F " for France, " G.B." or " G " for
Great Britain, etc.) and its registered number.

As to the principles upon which nationality should
be conferred there is some disagreement in the pro-
jected codes ; and the question of the particular State
in which an aircraft should be registered is also un-
settled. Usually nationality and registration are treated
as being necessarily interconnected, registration being
in fact what confers nationality. As will be seen
presently, this interdependence is based on maritime
precedent and is of questionable necessity in the case
of aircraft.

It is obvious that, if certain aircraft are to come
under the terms of a Convention, there must be some
provision for securing that they comply with the con-
ditions laid down in that Convention. The primary
conditions may, for the moment, be taken to be the
possession of the nationality of a State which has

CH. II NATIONALITY OF AIRCRAFT 13

become a party to the Convention, and the formahty
of registration which records or possibly confers such
nationahty.

It is not competent for an International Convention
to prescribe the terms upon which a State may grant
nationality to an aircraft, any more than to dictate the
terms upon which foreigners may be naturalised. It
is nevertheless an advantage that there should be some
agreement between States on the conditions upon which
nationality should be granted or recognised. Other-
wise a conflict of laws will arise, as indeed has happened
already in regard to naturalisation laws.

The Selection of a Nationality : Five Possible Choices

In the normal case no difficulty arises. Where an
English-built machine is owned by an Englishman,
domiciled in England, and is habitually used in Eng-
land, or at least is habitually housed there, the case is
clear. The machine is English for all purposes.
But one can imagine a case in which, say, a Brazilian
millionaire, resident at Lausanne and domiciled in
Switzerland, owns an Italian-built machine and keeps
it habitually at Buc in France, for flying convenience.
What is that machine's nationality and where should
it be registered }

Five criteria for the nationality of an aircraft have
been proposed. They are :

(i) The place of its construction.

(2) The place of its registration.

(3) The domicile of the owner.

(4) The nationality of the owner.

(5) The port d'attache of the aircraft.

(i) The Nationality of the Country of Construction

The first was proposed by M. Armengaudin 191 1,
as being the " place of birth " of the aircraft.^ His

1 R.J.L.A., iyi2, p. 114.

14 AIRCRAFT IN PEACE chap.

contention was that an aircraft must have a certificate
of navigability before it takes the air, and this certificate
is naturally obtained at the place in w^hich the machine
has been constructed. M. Armengaud's proposal,
which is somewhat similar to one made by the Russian
representatives at the Official Conference at Paris in
1 9 10, has found little support and need not be further
considered.

(2) The Nationality of the Country of Registration

The place of registration of the aircraft was suggested
as the true criterion of its nationality by Sir Thomas
Barclay in 191 1, and his view was adopted by the
British sub-committee of the Comite juridique de
V Aviation ; it was also approved by the Institute of
International Law at the Madrid Conference of 191 1,-
and by the Commission which was appointed by the
F.A.I, and which drew up an International Convention
at Brussels in May, 1912.^ " According to the rules
of the Institute," says M. Alex. Meyer,* ''aircraft
belonging to foreigners may obtain the nationality
of the country which registers them, for the place
of registration is decisive." There is a good deal to
be said for making the place of registration, so long
as it is also the place of the aircraft's headquarters,
or its *' home," govern the nationality of the aircraft,
or rather such conditional nationality as an aircraft
needs. The writer returns to this question later.

2 R.J. L. A., 1911, p. 115; 1912, p. 118; Annnaire de I'lnstitui
de Droit International, 191 1, p. 346.

3 R.J.L.A., 1912, p. 306.

It should, however, be added that, while the rule adopted by the
Institute allowed a State to register — and therefore to confer its
nationahty upon — a foreign-owned aircraft, another rule which it
approved recognised the right of a State, whose laws forbade its
subjects to register their aircraft abroad, to refuse to recognise
the foreign registration within its own jurisdiction [Annuaire de
I'Institut, 1911, p. 324; R.D.I., 1911, p. 643).

♦ Le Droit adrien, in R.J.L.A., 1911, p. 298.

11 NATIONALITY OF AIRCRAFT 15

(3) The Nationality of the Country of the Owner's

Domicile

The domicile of the owner and the nationaUty of
the owner are Hnked in the Paris draft Convention of
19 ID as the criteria of an aircraft's nationahty. The
argument for making nationahty depend on domicile
is that residence in a country implies a connection with
it which may not exist where nationality is the test,^
and that there are difficulties in the way of making
aliens, long domiciled in a country, apply for regis-
tration to the authorities of their own national State,
with which perhaps they have had no relations for
many years. ^ The French Decret of 17 December,
19 13, provides for the French nationality mark,
" F," being borne by aircraft belonging not only to
Frenchmen but to foreigners domiciled in France.'''
Similarly, under the Automobile Convention of 1909,
the motor-cars of resident aliens are marked like
those of subjects of the country concerned.^ The
great difficulty about domicile is that an individual
may, under some legal systems, have more than one.®

(4) The Nationality of the Owner's ozvn Country of
Nationality

The arguments for giving an aircraft the owner's
nationality were well stated by M. de Lapradelle in
1911.^° "They are," he said, "three in number —
two of them firmly established, namely, diplomatic
protection and requisition by the ' State of the flag,'
the third dependent upon the solution which may be
given later to the question of exterritoriality, namely,

^ See remarks of M. Meyer in R.J. I.. A., 1912, p. 113.

« R.J.L.A., 1911, pp. 299-300. ' R.J.L.A., 1914, p. 13.

" R.J.L.A., 1912, p. 123.

* See Catellani, Droit adrien, p. 8/), where it is stated that tliis
difficulty was brought to notice by an ItaUan representative at
Paris in 1910.

1" R.J. LA., 1912, p. ii6.

i6 AIRCRAFT IN PEACE chap.

the determination of criminal and civil competence by
the ' law of the flag.' ... If the aircraft of a German
domiciled in France, entering Russia, suffers ill-
treatment at the hands of the local authorities, which
State, Germany or France, will be more interested
and the better qualified in acting for him ? And
suppose this same aircraft, belonging to a German
domiciled in France, has reason to complain in Germany
of the German authorities, is it conceivable that
France would take diplomatic action to obtain redress
for a German from Germany ? . . . A second con-
sequence of the nationality of the aircraft is the right
of requisition in time of war by the ' State of the flag ' ;
is it not absurd that the aircraft of a Frenchman domi-
ciled in Germany should be requisitioned by Germany
and that of a German in France by France } A
third consequence of nationality — the only one more-
over which would render this idea indispensable —
would be that, for crimes and delicts, the ' law of the
flag ' would play in aerial navigation the same part
as in maritime navigation ; but, in this respect, is
it not more reasonable that the law of the flag should
be that of the owner's nationality rather than that of
the domicile, since, for crimes, it is the State exercising
diplomatic protection on the sea and in spaces not
subject to States' sovereignty, which enforces order
and law in the extent covered by its flag } Moreover,
the nationality of the owner is more fixed and certain
than his domicile. For all these reasons the criterion
of the owner's nationality should prevail."

(5) The Nationality of the Country of the Port d' Attache

The port d^attache was suggested as the criterion of
an aircraft's nationality by Professor Oppenheim of
Cambridge at the Madrid Session of the Institute of
International Law in 1911.^^ He conceived, however,
that the port d' attache and the owner's domicile would

^^ Annuaire de I'Insiitut, 191 1, pp. 307, 310.

II NATIONALITY OF AIRCRAFT 17

be the same.^"^ His suggestion aimed at avoiding the
difficuhies which would arise, in his view, from
attributing the owner's nationality to the machine ;
there were people, he pointed out, who had a double
nationality, others whose nationality was doubtful,
others who had none at all.

The Maritmte Precedent a Misleading One

In the present writer's view the analogy between
aircraft and ships has been pressed too far, and he
suggests that Professor Oppenheim's proposal may be
found to embody the best working solution of the diffi-
cult question of nationality. Professors Pillet of Paris
and Meili of Zurich expressed the opinion at Madrid
that an aircraft required no nationality at all, and Pro-
fessor Pillet especially was emphatic that to assimilate
aircraft to ships was a profound error. ^^ Unquestion-
ably, however, there are occasions upon which an air-
craft must be treated as having some given nationality.
It is important to remember, none the less, that these
occasions are intermittent. The peculiar nature and
capacity of an aircraft must be borne in mind.

It is absurd to say, as M. Pittard does,^^ that an
aeroplane is a *' movable object pure and simple "
and strictly analogous to a piano ! An aircraft is
siii generis and something midway between an auto-
mobile and a ship ; to assimilate it entirely to the latter

^2 It is possible, therefore, that Profe.;sor Oppenheim meant by the
" port d' attache " simply the " port of registry " and not the port
or aerodrome which is the aircraft's " home." In that case, however,
there was not much force in the suggestion, and it is quite clear from
the proceedings of the ComitS juridique de l' Aviation that the term
was understood by that body as meaning the aircraft's " home
port." Thus we find M. Dor saying, in ion, "Ports d'attache
are only certain towns in which all vessels are concentrated, as
dirigibles will concentrate later on," and " I believe there is practical
advantage in knowing immediately, when an aircraft causes damage
abroad, where the aircraft can be seized and the judgment executed."
(R.J.L.A., 1912, p. 124.)

'•'' Annuaire de I'Instiiui, 191 1, pp. 306, 308.

1* K.J.L.A., 191^. p. 118.

C

i8 AIRCRAFT IN PEACE chap.

and to assign it that full nationality which historical
reasons have attributed to vessels, so that, in French
law and to some extent in British, a ship is a floating
part of the national territory, would seem to the writer
to be going too far. Under British law, as under
that of most maritime nations, a ship possesses the
nationality of its owners, and it must be registered at
some port of the country whose nationality it holds.

The Nationality and Registration of Ships

The registration of ships dates from the Navigation
Act of 1660^^ and was originally instituted for the
purpose of restricting British commerce by sea to
British ships. It has long outgrown that purpose, and
now the " register is the appointed record of title to
property in British ships, and, except this, and for
ascertaining the vessels that are entitled to use the
British flag, serves no other purpose." Registration
does not confer nationality. Nationality results auto-
matically from the ownership of a ship by British sub-
jects or corporations, and Lord Justice Brett laid it
down in 1883 that every ship owned entirely by British
subjects is a British ship, even though registered and
under the flag of a foreign State .^^

Registration is, however, the necessary condition
precedent to recognition of a ship as British, for it is
the statutory record that the ship possesses the qualifi-
cations required to entitle it to be regarded as British.
Without registration, the ship *' is thereby excluded
from the statutory provisions limiting the responsi-
bility of her owners in certain cases ; and she is not
entitled to any benefits, privileges, advantages, or
protection usually enjoyed by British ships, nor to use
the British flag, or assume the British national character ;
but as regards fines and forfeitures, and the payment of
dues, and the punishment of offences committed on

15 In France, from the Ordinance of Louis XIV of 1681.
^' Maclachlan on Shipping, 5th ed., pp. 78-9.

II NATIONALITY OF AIRCRAFT 19

board, or by persons belonging to her, she is in the
same position as a recognised British ship." ^^

Hence, though registration in the case of ships does
not confer nationahty, registration and nationahty are
necessarily interconnected, but they are so for reasons
which do not appear to apply to the case of aircraft.
In International Law the merchant vessels of a State
are regarded as its property. It exercises adminis-
trative and criminal jurisdiction over all acts done on
board, w^hether by subjects or foreigners ; it exercises
full civil jurisdiction over subjects on board, and over
foreigners to the same extent as if they were on the
soil of the State ; and it possesses protective juris-
diction to the extent of guarding the vessel against
illegitimate interference. The State is responsible
for all acts of hostility against another State done on
the ocean by a merchant vessel belonging to it and must
allow redress to be obtained in its courts for wrongful
acts done to foreigners by the vessel or persons on
board her.^^ Given these responsibilities and these
rights, a State must necessarily exercise a stringent
control upon the admission to its nationality of merchant
vessels. Registration in the case of ships is an act
which brings into being a formidable list of rights
and duties.

The Difference betzveen Seacraft and Aircraft

A ship's life is on the sea. There, no law runs but
that of its flag, which is the law of the country to which
it belongs. The obvious and inherent characteristic
of aircraft, however, is that they live largely within the
frontiers of a State ; they do not simply touch the
fringe of a country, its ports and territorial waters.
If, as in the case of ships, the owner's nationality,
irrespective of the locality of the machine, were to
apply to aircraft, positions of extreme difficulty would

" Maclachlan on Shipping, p. 8i.
'« Hall, International Law, 7th ed., pp. 263-6.

C ?.

20 AIRCRAFT IN PEACE chap.

arise. A British-owned aircraft might, for instance,
be permanently located in France ; it might never
cross the French frontiers. To conceive it as British,
in the same way as a British-owned ship, seems to be
unsound. Again, an aircraft, because it passes over
and lands within a State, ma}^ be brought into relations
with foreign authorities and individuals in a way in
which a ship is not. If the same protective juris-
diction were recognised, if the aircraft were, so to
speak, personified and nationalised in the same way as
a ship, distinct danger would arise of international
incidents occurring. The aircraft must indeed be
regarded as possessing nationality to a greater degree
than an automobile, but it appears that, in the one
case as in the other, there is strong reason for allowing
the State to deal with the individuals responsible for
the foreign vehicle which enters its borders without
regard to the possibility whether thereby it is in-
fringing the sovereignty of an independent Power.
If nationality is allowed to an aircraft, it should only
be a quasi-nstionsMty , an attenuated nationality, per-
haps a conditional nationality which will come into
being only in certain circumstances, as when the
aircraft is passing over the high seas.

The *' Home '' or^' Headquarters " Country as Governing

Nationality

If such a special or ^wa^z-nationality is all that an
aircraft need be allowed, there appears to be no strong
reason why registration should necessarily take place
in the country of the owner's nationality or why the
attenuated nationality attributed to the aircraft should
not be that of the country in which the aircraft is
normally located. The owner's responsibility for
damage, etc., done by the aircraft need not be affected
by its being so treated. The aircraft should be re-
garded as having some fixed ^^ port d' attache ^^ or
headquarters, and it should be registered in the country

II NATIONALITY OF AIRCRAFT 21

in which the headquarters are situated. M. Henry-
Coiiannier stated in 19 10 that an aircraft required a
''port d'attache" no more than a bird does.^^ The
analogy is unsound. Actually and necessarily an
aircraft is housed somewhere ; it has its " home
hangar." Of course, it may change its " home," and
then its registration and, as a consequence, its quast-
nationality would be changed also. But equally its
registration and nationality may be changed if they
depend upon the owner's nationality and if the aircraft
is sold to a foreigner.'^ There should be no greater
frequency of change under the one system than under
the other. Unless the transfer of aircraft is subjected
to the same rules as the transfer of ships, and a" Bill
of Sale," with its com-plications and formalities, is
required before property in the machine can pass —
a development which is strongly to be deprecated
— one may expect transfer of ownership to be fairly
common, perhaps, in time, as common as the transfer
of property in motor-cars. So far as fixing the
identity of a machine is concerned, there are decided
advantages in looking solely to the aircraft's actual
physical location. It is probable that the customs
and police authorities will be very closely in touch
with all aerodromes in a country ; they will know
what machines are housed there, and the headquarters
of an aircraft will be a known or immediately ascertain-
able fact as to which there can be no uncertainty.
For all purposes of identification and record it is
best that registration should be local.

The State in whose territory an aircraft " lives "
is in at least as good a position to wield a sanction

1^ R.J.L.A., 1910, p. 333. The French Decret of 17 December, 1913,
made it necessary for a dirigible (only) to have a poyt d'attache.
(R.J.L.A., 1914, p. 12.)

20 It is conceivable that commercial aircraft may be chartered,
like ships ; or that sporting aircraft may be leased, like racehorses.
Presumably under such circumstances the nationality of the air-
craft will still be that of the owner ; yet the owner may liave no
effective control whatever over the machine. Wlicrc nationality
follows the place of housing no dilliculty ol tliis kiiul arises.

22 AIRCRAFT IN PEACE chap.

over the owner as the State whose nationality he
possesses but in whose territory he may neither reside
himself nor keep his machine. The first State has
the power to exclude the machine from its territory
or to refuse it flying rights there, and either action would
presumably be a material deterrent to the owner who
elected to locate his machine in that particular country.

The Case of Aircraft belonging to Corporations

One of the chief practical objections to linking the
owner's and the aircraft's nationality, irrespective of
the machine's situation, is that the system is properly
applicable only to ownership by individuals or non-
corporate partners. Where a joint-stock company
is concerned it breaks down, and must always break
down so long as the company laws of the various
civihsed States lack uniformity. In the case of air-
craft owned by limited companies, nationality must
depend on registration — either the registration of the
aircraft itself or that of the corporation which owns it.
The Comite juridiqne de V Aviation decided in igii
that an aircraft owned by a limited company should
have the nationality of the company's place of business
{siege social)?^ The draft Convention drawn up at
the International Conference of igio in Paris gave such
an aircraft " the nationality of the State where the
company's head office is situated." The text
adopted by the Conference of 1919 (see Article 7)
provides that "an incorporated company cannot be
the registered owner of an aircraft unless it possesses
the nationality of the State in which the aircraft is
registered, and unless the president or chairman of
the company and at least two-thirds of the directors
possess the same nationality, and unless the company
fulfils all other conditions which may be prescribed
by the laws of each State." Under any of the above

2^ R.J.L.A., 1911, p. 201.

II NATIONALITY OF AIRCRAFT 23

rules it would be possible to register an aeroplane in
any countr}^ whose company laws were favourable
— as most countries' laws are — and to set at nought the
rule which makes the machine's nationality follow the
human nationality. All that would be necessary would
be to form a company — with a few mock directors —
in that State and to set up its " head office " there or
comply with whatever other formality is prescribed.

The Purpose of Registration

The registration of aircraft, it is stated in the French
official circular of 19 December, 191 3, which notified
to Prefects the Decret of 17 December, 1913, regu-
lating aerial navigation in France, has for its principal
object the assigning to each machine of letters and
numbers which permit it to be identified at any moment
and in any place.-'- "It is a simple administrative
formality," said Professor de Lapradelle, in January,
1914;-^ "it pursues a final interest, an interest of
police. It is without influence upon nationality,
which must be that of the proprietor." Dr. Harold
Hazeltine has similarly emphasised, in a recent lecture,
the unsoundness of the view that the mere act of
registration should be regarded as, in itself, conferring
nationality. There is, in fact, no reason why regis-
tration and nationality, when it is the owner's nation-
ality and analogous to a ship's nationality, should not
be disconnected ; but if the nationality which is to be
conferred upon the machine is not the full-blooded
nationalitv which a ship possesses, but is rather akin
to that attenuated nationality which a " British " or
" French " or" Italian " motor-car on tour is regarded
as having, the case is diff^erent, and it can well be con-
ceded that registration should confer such a qunsi-
nationality as is referred to. But it would not in that
case be the owner's nationality necessarily ; it would be

-- R.J.L.A., 1914, p. 45. -' R. I.L.A., IM14, p. 66.

24 AIRCRAFT IN PEACE chap.

the " nationality " of the country in which the air-
craft " Hves " and is housed. 2*

Registration as a^^ Live " Record

One practical argument in favour of such a system
is that the latest and most authoritative record of the
aircraft's identity is likely to be found in the country
in which it is normally located. Of course that
country could notify the covmtry of the owner's
nationality of all changes in the particulars ; but
then the record in the latter country will be a derivative
record, not an original, and may at any given time not
be up to date. It is true that registration does not
necessarily involve an actual examination, but if
registration is to be an authentic record of the identity
and characteristics of the machine, it is clearly advisable
that it should be carried out, unless there are insuper-
able objections to such a course, in the country in
which the machine is housed and which quite con-
ceivably it may never leave. At least a test survey,
in case of dispute, can be carried out then, as it could
not so easily be carried out when the aircraft is on the
other side of the world. ^^

2* If the owner's nationality is stated in the entry and certificate
of registration, that need not be taken as establishing the nationality ;
or, if it is necessary that it should be taken as proof of nationality,
it could easily be provided that the application for registration
should be " vised " by the consular authorities of the applicant
where the applicant is a resident alien. Such a provision is made
in the French Decret of 17 December, 191 3.

As regards the contention that, under such a system as is proposed
by the writer, a French-owned aircraft stationed in England would
bear the English nationality mark, this point was raised by M.
Fauchille in 1910, when he stated that national security made it
necessary for foreign aircraft to carry a distinctive mark so that
they could be kept under special surveillance. To this Senator
Reymond replied that most of the aeroplanes then piloted by
Frenchmen belonged to foreigners, and if all of them were marked
as having foreign nationality, this distinctive sign would become
banal and no one would pay any attention to it, with the result
that when aircraft which were really foreign crossed the frontier
they would not be kept under surveillance. (R.J.L.A., 191 1, p. 45.)

2* As to the guaranteeing of a reasonable standard of airworthiness
being an object of registration, see Catellani [Le droit aerien, p. 65),

II NATIONALITY OF AIRCRAFT 25

Weakness of the Argumefits as to the Necessity for
Providing for (i) some Law to be applied in the Air

As to Professor de Lapradelle's three arguments for
giving a machine its owner's nationahty, the last and
strongest, the argument that some law must be fixed
and recognised as applying to crimes committed on
board in flight and that that law should be the law of
" the flag," the writer points out in a later chapter of
this book that the conditions of maritime and aerial
navigation are so inherently different that the maritime
rule is quite inappropriate to the domain of the air.
In any case, granted that some law must apply, surely
the natural law to select is that of the aircraft's home,
the country it comes from ? With that country it
has some physical connection, some territorial relation ;
with the owner's country it may have none whatever,
save and except that ownership. Why should the law
of Brazil apply to a crime committed in mid-channel
upon such an aircraft as is imagined in the case given
in page 13 ? The law of France, to which the machine
will presumably return in due course, is far more
appropriate.

And (ii) Diplomatic Protection and Military Requisition

As to Professor de Lapradelle's two other arguments in
favour of giving a machine its owner's nationality,

who points out that M. Gemma, in his report to the Congress of
Verona, 1910, made no provision for the international control of
construction of aircraft on the ground that " the compulsory inscrip-
tion of every machine in the national register, communicable to
the other States, seemed a sufficient precaution." M. Catellani
observes that the same idea inspired the preparatory \vork of the
official Conference of Paris in 1910, " and rightly so, for the verifi-
cation of the aircraft, made before it is authorised for use in loco-
motion, suffices to guarantee the public security and human life."
The French Decret of 17 December, 1913, regulating aerial navigation,
provided for registration of an aircraft only u]X)n jiroduclion of
the certificate of navigability. (R.J.L.A., 1914. PP' ii->2.) The
Massachusetts Law of May, 1913, meidc registration dc])endcnt
upon an actual examination of the aircraft by an oH'k ial of the
registering authority, the Highway Commission. {ILJ .1..A ., 1913.
p. 217.)

26 AIRCRAFT IN PEACE chap.

neither seems to have very much weight when closely
scrutinised. The owner^s nationality remains, even
if his machine is given a ^/Mflw-nationality under some
other State's flag, and in a case of sufficient importance
to interest the Foreign Offices he should be able to
obtain diplomatic assistance in virtue of his own
nationality. As regards military requisition, it would
be no breach of international law for a State, becoming
belligerent, to requisition the property of resident
aliens ; in cases of extreme necessity it could even
justify, under the right of angary, the seizing of neutral
property which was merely passing through its terri-
tory. In any case, if the liability to requisition were
made a condition of registration, foreign owners who
kept their aircraft in a given State would have no
ground for complaint if their property were taken.

A Possible Solution of the Problem

It need hardly be added that it would always be
open to a State to refuse to register an aircraft belong-
ing to an individual either on the score of the owner's
nationality or for any other reason. If a State were
to decide to attribute its nationality only to aircraft
owned by its own subjects and normally housed in its
territory, and only to register such aircraft, the point
of the objections raised in this chapter to the machine's
nationality being governed by the owner's would be
met .26

The Nationality of the Crew

It is also open to a State to require that the attribu-
tion of its nationality to an aircraft shall be dependent

26 The International Convention of 1919 provides (Article 7)
that an aircraft shall not be registered by a State unless it belongs
wholly to nationals of that State ; and, under Article 6 of the
Convention, registration confers nationality on the machine. It
is not, however, provided that the aircraft must be housed in the
country in which it is registered, and consequently the objections
to which the writer refers in the text are not removed by the Con-
vention.

II NATIONALITY OF AIRCRAFT 27

upon the machine's being manned by a pilot or " crew "
of the State's nationality. Certain States impose
such a condition in the case of merchant vessels ; a
French vessel must have the names of its captain,
officers, and at least three-fourths of the crew borne
upon the imaiption maritime, and a similar law applies
to Italian shipping. United States vessels must be
manned to the extent of two-thirds of the crew by
Americans and the officers must be Americans. As
M. Catellani points out,-'^ the nationality of the pilot
or crew will in such a case be rather a necessary and
obligatory consequence of the nationality of the air-
craft than a determining element ; that is, the crew's
nationality will follow the aircraft's nationality instead
of governing the latter. It is questionable whether a
condition of this kind could be maintained in the case
of aircraft, the connection between which and the
pilot is more fortuitous and transitory than that,
between a marine vessel and its officers and crew.
The British " Air Navigation Regulations, 1919,"
while requiring applicants for the registration of an
aircraft to be British subjects (except in special cases
allowed by the Secretary for Air) or public companies
registered and having their principal place of business
in the United Kingdom, do not make the possession
of British nationality a condition precedent to obtain-
ing a pilot's licence.

-^ Droit aerlen, p. 82.

CHAPTER III

THE CERTIFICATION OF AIRCRAFT AND PILOTS

The Object and Method of Safety Provisions

Regulations framed to secure safety of inter-
national circulation, whether by land, by sea, or by
air, might have in view the safety of two or, with a
subdivision of one of these classes, three classes of
persons, and they might aim at securing it in two
distinct ways. In other words, they might pursue
either or both of two ends :

A — the end of the safety of those carried in the
vehicle, who might agnin be distinguished according
as they were (i) the crew or persons working the
vehicle, and (2) the passengers or those carried in it
but not working it ; and

B — the end of the safety of third parties, whether
the general public or that portion of it which travels
in other similar vehicles.

They might pursue these ends by either or both of
two means :

X — by ensuring that the vehicle was sound ; and

Y — by ensuring that the person or persons in charge
of it were competent.

The question before us is whether an international
Convention should pursue the ends A and B by the
means X and Y, or whether either, and if so which,
of the ends, or again of the means, should be neglected.
This question naturally gives rise to another, namely,
what is done at present in the case of the nearest
existing counterparts of aerial vehicles — automobiles

cii. Ill CERTIFICATION OF AIRCRAFT 29

and steamships ? Railway vehicles are less inter-
national and need not be considered.

It is true, of course, that, whether aircraft, auto-
mobiles, or steamships be in question, the end B
cannot be secured without indirectly achieving end
A as well ; but the point to consider is which end is
primary. Similarly, the persons in subdivision (i)
of A will naturally benefit from general safety provi-
sions made for the sake of those in class (2). It is
possible, however, that the provisions may apply only
where passengers are carried, and in that case we can
safely say that the end of the safety of class A (i) is
not pursued.

The Safety Provisions of the Automobile Convention

The framers of the Automobile Convention of
October, 1909, may have had end A in mind, but what
they primarily aimed at was end B ; and they followed
both the means, X and Y, in seeking to attain that end.
They provided that somiC prescribed authorities should
satisfy themselves that motor vehicles were reasonably
sound and controllable and that the driver was compe-
tent. It is a fair inference from the Convention that
it was the safety of third parties, not of the occupants
of the vehicle, that was the object mainly in view.^

The Safety Provisions of the Maritime Conventions

The corresponding Maritime Conventions are the
International Collision Regulations (adopted at diffcr-

^ The Automobile Convention provides for an examination of
every motor-car about to undertake an international tour by some
competent authority, and the examination is intended to secure
that the machinery is efficient, that danger of fire, explosion, or the
emission of excessive smoke or vapour is eliminated so far as ])Ossible,
that the steering apparatus is effective, that a horn and lam])S are
carried, that two independent and adequate brakes and a reversing
gear are provided, that the driver can manijnilate the control from
his seat, and that he has a clear view ahead. It also secures that
the driver knows how to drive, by requiring him to be examined
by a competent authority or an association authorised by that
authority. (Ql. 3125/1910, Treaty Scries No. 18, 1910 ; the ircnch
text is given in K.D.I., 1910, Documents, p. 3.)

30 AIRCRAFT IN PEACE chap

ent times by the various States) ,2 the Brussels Con-
vention of 23 September, 1910, as to ColHsions,^ and
the London Convention of 20 January, 19 14, on
Safety of Life at Sea.** These Conventions, however,
cover only a part of the ground and are supplemented
at many points by such municipal legislation as the
British Merchant Shipping Acts and the similar
enactments of other nations. Such legislation is
really international in character in so far as it not only
provides for a maritime commerce w^hich is world-
wide, but embodies the practice and regulations which
are common to the maritime nations and is applicable
in some respects to foreign ships.

The Convention on Safety of Life at Sea

The safety of third parties — class B of our formula
— is secured in the case of ships by collision regulations
and agreements, not, as in the case of automobiles, by
ensuring that the vehicle will not disintegrate or

2 The International Collision Regulations are given in Maclachlan
on Shipping, 5th ed., and, in a more readable form, in The New
Rule of the Road, published by Gieve's, Portsmouth, price is. net

^ The Brussels Convention on Collisions of 23 September, 1910,
was given legal effect, in England, by the Maritime Conventions
Act, 191 1, the terms of which may be found in Roscoe and Robertson,
The Maritime Conventions Act, Stevens & Sons, 1912. It provides
for a fair division of the damage or loss sustained when two vessels
are in collision and there is fault on both sides.

* The Convention on Safety of Life at Sea seeks security on inter-
national voyages by making it obligatory for mechanically-propelled
ships, carrying more than twelve passengers, to comply with certain
detailed regulations regarding watertight compartments and bulk-
heads, peak and machinery space bulkheads, fireproof bulkheads,
and (in certain cases) double bottoms. There are also provisions
as to the carrying of lifeboats and pontoon life-rafts, and radio-
telegraphic apparatus. An initial and periodical surveys of ships
are compulsory', and " Safety Certificates " are issued to ships which
comply with the requirements of the Convention. No provision
is made for the certification of the master or officers, this being
left to the several States' municipal legislation, but certificated
lifeboatmen have to be carried in certain proportions which are
laid down, and these men must have a practical knowledge of life-
boat service, the exact standard being left to the different States
to decide. (Cd. 7246/1914.) The British Parliament has not
yet passed the legislation necessary to give effect to the Convention.

Ill CERTIFICATION OF AIRCRAFT 31

" run amok " ; though, of course, the competency of
the persons in charge of the vehicle is in both cases
also a factor of the safety of third parties. In collision
provisions, however, no question of certification of
the vehicle or its crew arises. The international
Convention which would most closely correspond in
the maritime domain to the International Aerial Con-
vention recently concluded at Paris is the London
Convention of January, 19 14, so far as certification is
concerned ; and that Convention may be said to
pursue primarily the safety of our class ^, and especially
of subdivision (2) of that class, i.e., the passengers
carried in steamships. The crews, of course, benefit
incidentally from the safety provisions, but their
safety is not the main end ; otherwise cargo steamers
and passenger steamships of small passenger-carrying
capacity would not have been omitted. The same
Convention relies on only one of the two means, X
and y, to secure the end of the passengers' safety ;
for, although it contains a rather ineffective provision
as to training of lifeboatmen, it leaves the far more
important question of the competency of the masters,
mates, and engineers to the discretion of the various
States and confines itself to requiring the vessels
themselves to be certificated. To put the matter
briefly, the Convention pursues the end A (2) by the
means X, and practically ignores both end A {\) and
end B (which, however, is pursued separately by the
collision regulations) and means Y.

The Merchant Shipping Acts

Means Y is covered by the Merchant Shipping
Acts ^ in England and the corresponding enactments in

^ Under the Merchant Shipping Act of 1894 every passenger steamer
carrying more llian twelve passengers must 1)6 surveyed annuallv
by shipwrights and engineers employed by the owner, and no such
ship may put to sea without the Board of Trade certilicate that the
survey has been carried out. The surveyors report for the informa-

32 AIRCRAFT IN PEACE chap

other countries. Every foreign-going ship, i.e., for
the purpose of the international circulation which is
here in question, every ship, whether passenger or
cargo, is required by these Acts to carry certificated
officers. Means X — the certification of the craft
itself— is also employed, and here again, as in the
London Convention on Safety of Life at Sea, the end
of the passengers' safety — our class A {2) — ^is the
end which is pursued by such certification ; for only
passenger steamers are periodically surveyed. K
special survey may, however, be ordered in the case of
any vessel. The Merchant Shipping Acts, then,

tion of the Board of Trade whether the hull and machinery are in
good condition, whether the boats, lifeboats, signals, lights and
compasses are sufficient, whether the master, inates, and engineers
are certificated, whether the engine is fitted with the safety-valve
required by the Act, etc. Emigrant ships must be surveyed before
each voyage, and the survey in their case is carried out by the
Board of Trade (in certain cases by the Commissioners of Customs)
at the expense of the owners or charterers. Stringent rules are
laid down as to the number of emigrants, or steerage passengers,
who may be carried in ships of given tonnages, and as to the provision
of food, water, medical stores, etc. (Merchant Shipping Act,
1894, §§ 271-289.)

Under Section 728 of the same Act the Board of Trade have power
to order a special survey, to ascertain whether the hull and machinery
of any steamship are adequate and in good condition.

As regards the competency of persons in charge of ships, the
Merchant Shipping Acts of 1894 ^i^d. 1906 require every British
foreign-going ship (whether cargo or passenger) and every British
home-trade passenger (but not cargo) ship to carry duly certificated
officers ; and this obligation extends even to foreign steamships
carrying passengers between places in the United Kingdom. The
master must in all these cases be certificated, so must one or more
mates according to the ship's tonnage, and a certificated engineer
must be carried by all passenger-carrying steamships and by foreign
trade cargo steamers of over one hundred h.p. Certificates are
given by the Board of Trade after examinations conducted as that
Department may direct ; the examiners, in the case of masters
and mates, are local marine boards at the various ports. The
record of certificates given, suspended, or cancelled is kept by the
Registrar-General of Shipping and Seamen. (Merchant Shipping
Acts, 1894, 5§ 92-T04 ; 1906, tj 56.)

Not only is a fine of ;^5o leviable on anyone who employs an
uncertificated officer where a certificated one should have been em-
ployed, but if an owner wilfully sends a ship to sea without the
necessary certificated officer, the result is that the voyage is illegal
and insurance policies are made void. (Merchant Shipping Act,
1894, § 92 ; Maclachlan on Shipping, 5th ed., p. 209.)

Ill CERTIFICATION OF AIRCRAFT 33

pursue end ^ (i) and (2) by means Y, and end A (i),

but (2) only to a less degree, by means X.

Safety Provisions for Air Locomotion

How, then, should one legislate internationally for
safety in the air ? Should ends A (both subdivisions)
and B both be sought, and should means X and Y
both be employed ? One can be guided to an answer
by the automobile and maritime precedents ; but
it is necessary to remember, in regard to the latter,
that an aerial vehicle circulates in areas entirely differ-
ent from those in which ocean-going steamships ply.
A steamship cannot come down in a city street or in
a citizen's back garden.

The Purpose of Safety Certification ift the Case of Aerial
Locomotion unprecedentedly wide

For the moment we may neglect collision rules for
the air (which are dealt with in Chapter VII, infra) and
consider only the question of certification of vehicle
and personnel as a means of ensuring safety. From
the nature of aviation the safety of third parties — end
B — must necessarily be secured, not primarily, as
at sea, by collision regulations, but, as in the case of
motor vehicles, by certification of machine and driver
or pilot. Certification has consequently a wider pur-
pose in the case of aircraft than in the case of seacraft.
It has to be relied upon to secure the safety of all the
three classes, A (i), A (2), and B ; and of these the
greatest numerically and the most worthy of considera-
tion in virtue of their passivity are the people in class B.
Indeed, given that class B must be protected, the safety
of classes /i (i) and A (2) would almost automatically
follow from the certification (and only certification is
here in question) which would be necessary to secure
the safety of that one class. To secure it, one would
expect both means X and means Y to be employed.

D

34 AIRCRAFT IN PEACE chap.

The Difficulty of Certifying Ainvorthiness

Yet one finds a tendency in recent projects of legis-
lation to ignore class 5, so far as their protection by
means of the certification of aircraft and pilots is
concerned, and to think only of class A, and, of class ^,
principally of subdivision (2). Again one finds means
Y placed in a position of greater prominence than
means X. The former tendency will probably be
rectified before long by some serious catastrophe which
will draw public attention to the importance of ensuring
that flying machines are safe not only for the public
carried in them as passengers, but for the much greater
public over whose heads they fly as well. The need
for the protection of aviators themselves, so far as
certification of aircraft is a protection, will also force
itself to the front. As to the preference shown for
means Y over means X, this is the inevitable result
of the comparative nature and conditions of the two
kinds of certification. The certification of personnel
is a simple matter and is administratively eflPective
and worth while ; that of the material is so trouble-
some, recurrent, and unsatisfactory in results that
doubt has been expressed whether it pays.

An Early Expert View as to Certification of
Airworthiness

As long ago as 1910 M. Ernest Archdeacon stated in
La Revue Aerienne that certificates of navigability were
a " gross error " ; his view being that flying machines
were in the stage of rapid and constant development
and that the standard of safety and the origin of flying
accidents were equally unknown factors. He held
strongly that to require certification as to airworthiness
would hamper seriously the progress of aviation.^

• R.J.L.A., 1910, p. 326.

Ill CERTIFICATION OF AIRCRAFT 35

The Pre-war Regtilattofts afid Projects : (a) Those
requiring Certification of the Machine

M. Archdeacon's views are still echoed by many
authorities to-day. Whether a certificate of navig-
ability is necessary or desirable is a question that
is much debated. M. Fauchille's draft project
of a Convention, originally published in 1902 and
revised in 1910, makes the permis de circulation
dependent on proof of navigability.'^ The French
Presidential Decret of 17 December, 1913,^ required
every aircraft to obtain a certificate of navigability
by actual examination conducted either by the
Service des Mines or by an association recognised
by that department ; but an exception was allowed
in the case of French machines constructed according
to a type approved already and accompanied by
the constructor's certificate that they conformed to
that type. Machines used for flying at aerodromes,
unless they took pupil-pilots into the air, were
excepted from the regulation which required a
certificate of navigability. The International Con-
vention drafted at the Paris Conference in 1910
provided for a certificate of navigability issued or
authenticated by the State whose nationality the
aircraft possessed. So, too, the rules proposed by
the Syndicat General de I'Aviation in April, 1910,
made a permis de navigation^ as well as a permis de
conduire (pilot's certificate or licence), necessary for
flights over " agglomerations " (towns, villages, etc.).^
The Law of 15 May, 19 13, of the State of Massachusetts
required all aircraft except those used for experiments
in aerodromes to be examined by an official of the
Highway Commission, registered, and assigned a
number : the pilot had also to be licensed.^" Tlie

'' Annuairo de I'liisliiul de Droit Tnlernalional, kjio, j). 300.
"K.J.L.A., 1914, p. II. » li.J.L.A., i<)io, p. 138/

'" R.J.L.A.. 1913, p. 216.

The Massachusctls Act and the <haft Connecticut Act allowed
an aviator from another State, provided he were hcensed in that

D 2

36 AIRCRAFT IN PEACE chap.

Serbian official Regulations of 21 February- 1 6
March, 191 3, required both the aircraft and the pilot
to be certificated ; " such machines," says Article 2
of the Regulations, " must be absolutely safe and
cannot be used without a permit from the Minister of
the Interior," and Article 4 adds that " The pilot
must possess a certificate of capability delivered by the
Minister of War." "

(b) Those requiring Certification of the Pilots hut
not of the Machine

On the other hand, the Prussian Ordinance of 1910,
while requiring a pilot's certificate to be obtained
before flights could be undertaken in places where
the general public might be endangered, made no
provision for an examination or certification of the
machine.^- Similarly, the Connecticut Act, drafted
in 191 1, required an aircraft to be registered and its
pilot to be licensed, but made no provision for the
machine being certified as navigable.^^ The Act
drafted by the Aero Club of Pennsylvania in 191 1
similarly required the pilot but not the machine to
be certificated.^* The International Aerial Navigation
Treaty drafted by a Commission of the F.A.I, in
Brussels in May, 191 2, made the possession of the
pilot's certificate of the F.A.I, a condition precedent
to flying over foreign territory, but the position as to
certification of the machine was not made quite clear ;

State, to fly in Massachusetts or Connecticut for not more than
ten days in any year without having to be Hcensed locally. (R. J.L.A.,
1911. p. 247 ; 1913, p. 217.)

11 R.J.L.A., 1914, p. 158.

These remarkable Regulations further provide for safety in flight
by forbidding flying during stormy weather or at night. As another
article allows aviators to liy only in the direction prescribed by the
Police authorities in the route-book {Cavnet de route) which every
machine is obliged to carry, and as yet another provides for the
confiscation to the profit of the State of all machines used in the
commission of a criminal action, it is clear that the career of the
aviator in Serbia would be not devoid of interesting possibilities.

12 R.J.L.A., 1910, p. 346. 13 RJ.L.A., 1911, p. 246.
1* R.J.L.A., 1911, p. 247.

Ill CERTIFICATION OF AIRCRAFT 37

registration only seems to be required .^^ The pro-
jected Dutch law of 191 3 required pilots to be licensed
by recognised aviation societies in Holland or abroad,
under the authority of the Minister of the Waterstaat ;
but no provision was made for the certification of the
aircraft itself.^®

Certification of Passenger-carrying Aircraft

Apart from flights over " agglomerations," the rules
of the Syndicat General drafted in 19 10 made a pilot's
licence necessary where a machine carried pas-
sengers,^"^ and there has lately been a tendency to
limit the requirement of a certificate of navigability to
passenger-carrying aircraft. In the debate in the
House of Commons in February, 19 19, it was urged by
Sir Fortescue Flannery that as the Board of Trade
protects the public by inspecting ships and railways,
so it should intervene in the public interest to inspect
aircraft, test materials, and examine designs.^** This
view was opposed by Colonel Moore-Brabazon, who
held that commercial aviation would of itself insist on
security, and that the proper body to regulate and
inspect the machines was not any Government organ-
isation, but such a society as " Lloyd's."

A Lloyd's Register for Aircraft

The difficulty is that the public require protection
from flying-machines not only in the capacity of
passengers but in the capacity of normal, earth-hugging
citizens as well ; and that the establishment of a

1^ R.J.L.A., 1912, p. 306. ** R.J. LA., 1914, pp. 95, 124.

" K.J.L.A., 1910, p. 159.

'" The Safety Certificate which is required for ship.s by Article 57
of the Convention on Safety of Life at Sea can be issued after an
inspection either made by officers of the State to vvliich tlie ship
belongs or by surveyors nominated by the (iovernment for this
purpose or organisations recognised by it. "In every case the
Government concerned fully guarantees the completeness and
efficiency of the inspection and survey." (Article 57.)

38 AIRCRAFT IN PEACE chap.

Lloyd's Register for the air will require a considerable
time to materialise. The idea of such a Register is
not new. In 1910 M. Zaharoff, that benefactor of
aviation, gave 50,000 francs for the study of the
prevention of flying accidents and, incidentally, of the
best means of establishing a " Bureau Veritas " for the
air, the Bureau Veritas being the French equivalent of
the British Lloyd's, i.e., an organisation which secures
the sound construction and continued seaworthiness
of ships.^^ But even then it was pointed out that the
institution of an aerial Veritas would be a difficult,
costly, and probably disappointing venture. M.
Lochet pointed out in an able article in the Revue
Juridique de la Locomotion Ae'rienne -^ that the strongest
champions of the suggestion had been forced to aban-
don it. The reason was that, while a ship was a
robust organism, not easily injured, an aircraft was
fragile and vulnerable. If the survey was to be of
real use, it would have to take place almost after every
flight, and the cost of such a ceaseless surveillance
would be prohibitive. Even if, as M. Sere de
Rivieres proposed, a weekly inspection only were
arranged, the cost of the service would amount to
10 per cent, of the returns on a commercial machine.
But a weekly control would not be sufficient to
guarantee the security by which such a service could
alone be justified. Two hours after the weekly
inspection the condition of the machine might have
been entirely altered. A writer in The Aeroplane ^^ has
recently expressed a similar view. *' Compared with
the Shipping Register, the cost of the Aircraft Register
[Lloyd's] would be very high, because of the nature
of an aeroplane and of an airship. The * life ' of a
steamship or a sailing vessel is infinitely greater than
that of present-day aircraft, and there will always be
a big diflFerence in this respect, even when the perfect
aircraft is evolved. Admittedly the capital cost of an

19 R.J.L.A., 1910, p. 320. 20 R.J.L.A., 1910, p. 325 ff.

21 The Aeroplane, 26 March, 1919.

Ill CERTIFICATION OF AIRCRAFT 39

aeroplane is comparatively small compared with that
of a ship, but, the aircraft being delicate, the necessity
for supervision by the surveyor must naturally arise
more frequently, which would add to the expense and
react upon the premium quoted by the underwriter
for the acceptance of risks."

M. Lochet's conclusion was that the best guarantee
of airworthiness w^as the pilot's own interest in preserv-
ing his life. Perhaps in this he went too far. To rely
upon the caution and judgment of a young airman,
perhaps of an abnormally optimistic temperament, in
such a matter could not be justified where passenger-
carrying aircraft are in question.

The Convention 0/ 1919 and the
Certification of Airzvorthiness

The report of the Civil Aerial Transport Com-
mittee recommended that, in general, safety should
be secured by the second of the two means, namely
y, referred to at page 28, viz., by requiring pilots to
be certificated, and that the other method, the certi-
fication of the vehicle (means X), should be applied
only to aircraft plying for hire, whether for the carriage
of passengers or of goods. The Convention which
was approved at Paris, however, applies means A' to
all classes of aircraft, for it provides that " every
aircraft engaged in international navigation shall be
provided with a certificate of airworthiness issued or
rendered valid by the State whose nationality it
possesses" (Article 11). An Annex (B) to the Con-
vention lays down the main conditions governing the
issue of certificates ; they require the design, 2vork-
manship, and materials to be approved in all cases and
the actual flying qualities of all new types of machines
to be tested, subsequent models which conform to a
type already passed being exempted from trial in the
air. Another safety provision of the Convention is
that which obliges aircraft used in public transport

40 AIRCRAFT IN PEACE chap.

and capable of carrying ten or more persons to be
equipped with sending and receiving wireless appara-
tus (Article 14) ; and yet another is the requirement
that suitable navigating instruments must be carried
by aircraft (Annex B, paragraph 4).

Certification under the Air Navigation Regulations

The British " Air Navigation Regulations, 1919,"^^
provide for the certification of passenger-carrying
aircraft only. A certificate of airworthiness is granted
for a type of aircraft after approval by the Air Ministry
of the design and the construction and a satisfactory
demonstration of safety in flying trials. The fee for
certifying a type aircraft is five guineas. Subsequent
machines of the same type are certified (at a fee of one
guinea) upon inspection by the constructor's em-
ployees and evidence that the machine conforms to
the approved type. The inspection carried out by the
constructor may be tested by Air Ministry representa-
tives. A periodic overhaul of all passenger-carrying
aircraft must be carried out by *' competent persons "
appointed by the owners or users and licensed by the
Air Ministry, and a machine of this kind must have been
previously inspected by a licensed inspector on the
same day before it can take up passengers for a flight.
The inspector is required to sign a certificate, which
must be countersigned by another person in the
employment of the owner, that the aircraft is fit in
every way for the flight proposed. The pilot is also
held responsible for seeing that the aircraft is in a
satisfactory condition before a flight is attempted and
that it does not carry more than the load specified in

22 See Appendix II. The position is, therefore, that for flight
in the United Kingdom or over the high seas a British aircraft
must be certified as airworthy only if it carries passengers. For
flight over another (contracting) State's territory, however, every
aircraft (whether it carries passengers or not) must be certificated,
in view of the terms of Article ii of the International Convention
of 1919.

Ill CERTIFICATION OF AIRCRAFT 41

the certificate of airworthiness, and he must sign a
certificate to this effect.

Period of Validity of Certificates

The British Regulations set a high standard of
quahfication for passenger-carrying aircraft, but it
is difficuk to see how any less stringent requirements
would suffice if airworthiness is to be certified at all.
The older rules were much less strict in regard to period
of validity of certificates. The Connecticut draft Act
of 191 1'^ and the Massachusetts Act of 1913^* made
the registration of the aircraft in the one case and the
pilot's certificate in the other expire annually. At the
Paris Conference of 1910 the Italian Minister of War
proposed that aircraft should be inspectad annually by
a special technical commission. An annual inspection
for aircraft would be almost useless. The Safety
Certificate which is required for ships under Article 57
of the Convention on Safety of Life at Sea is valid
only for twelve months (paragraph 59), but the con-
ditions are entirely diflFerent where aircraft are in
question. If there is not a practically daily inspection,
an inspection after so many " flight hours " should be
the rule.

The Certification and Licensing of Pilots and Crew

As regards the licensing of pilots, there is little to be
said. Professor Von Bar proposed in 19 10 that it
should be obligatory for the pilot to be of the
same nationality as the aircraft itself ; his conten-
tion being that such an identity of nationality
would better assure discipline and the safety of
passengers and persons below.-^ As M. Fauchille
pointed out,^^ the proposal would probably

23 R.J.L.A.. 1911, p. 247. '* R.J.L.A., T913. P- -i^^-

^^ Annnaire de I'Institut de Droit International, Kjio, i>. 317;

1911. p. 134-

2* R.J. L. A., 1911, p. 143. Sec also Annuairc dc I'/itslilul, i<iii,
p. 41.

42 AIRCRAFT IN PEACE chap.

not make for security of navigation, for it
would limit the owner's choice of a pilot ; what
does make for security is the combination of skill and
good character in the pilot, and these qualities are not
confined to any single nationality. It is, of course,
open to any Government to grant licences only to
subjects of the State, and the draft Convention of the
Paris Conference of 1910 reserved to each State the
right to refuse recognition to a foreign licence granted
to one of its nationals, so far as flight over its territory
was concerned. In general, however, the principle
is sound that a pilot's certificate, duly conferred,
should be a good credential anywhere.

The Testing and Licensing Authority

The Massachusetts Act of 19 13 provided for licences
being granted by the Highway Commission after an
examination by that authority. Usually, however,
both municipal enactments and projects of inter-
national regulation allow the test for a licence to be
conducted either by a recognised aeronautical associa-
tion or by a department of State. The British
" Aerial Navigation Regulations, 1919,"^'^ require the
pilots, navigators, and engineers of passenger or goods
aircraft to pass a medical examination under the
direction of the Air Ministry and to obtain a certificate
of competency (which, in the case of pilots and navi-
gators, is issued by the Air Ministry itself, as a pre-
liminary to the licence), as well as, in the case of pilots,
to produce proof of recent flying experience on the class
of machine for which the licence is required. Licences
for pilots of other than passenger or goods aircraft are

-^ See Appendix II. Paragraph 7 of Schedule II of the Air
Navigation Regulations provides that holders of licences may be
required from time to time to undergo further medical examina-
tions ; the International Convention is more explicit, for it requires
(Annex E, V, 5) every aviator or aeronaut to be medically re-
examined at least every six months, or specially after an illness or
accident.

Ill CERTIFICATION OF AIRCRAFT 43

given without medical examination, but competency
has to be estabUshed. Presumably the tests of the
Royal Aero Club would be accepted by the Air
Ministry as the basis for the grant of a licence.
Pilot's licences remain valid for six months, other
licences for twelve months.

An Internatio7ial Standard for Pilots' Certificates

It has been suggested that pilots' licences should be
issued by an international authority, or, at any rate,
that the precise test to be passed should be fixed by
international agreement. This suggestion appears to
go too far ; merchant officers' certificates are not
standardised in such a way, and there is advantage in
allowing some latitude in the matter of tests. It is,
however, desirable that a minimum standard for the
granting of licences should be fixed by international
agreement, and such a standard is provided for in the
International Convention just signed at Paris. Annex E
of the Convention prescribes the minimum qualifi-
cations which are necessary for obtaining certificates
as pilots (i) of machines not used for public transport,
(2) of those used for public transport, (3) of balloons,
(4) of airships, the standard for the last being varied
according to the metric capacity of the airship ; and
the test for a navigator's certificate is also laid down.
Rules as to medical certificates are also given.

CHAPTER IV

ENTRY AND LANDING OF FOREIGN AIRCRAFT

The Formalities to be observed by the International
Aviator.

There are to be observed by the aviator essaying an
international flight various formahties as to w^hich
there is no important difference of opinion nor much
probabiHty of difficuhy arising in practice, and with
these the writer does not deal. A machine must have
been registered, it must carry the prescribed identifi-
cation marks, it must have been certificated (where
certification is necessary), the pilot must have a
licence, a log-book must be producible, and any
national regulations as to the possession of passports
(as for any travaller) or as to the carriage of explosives,
fire-arms, photographic cameras, or carrier-pigeons
must be observed. There may be differences of regu-
lation, or projected regulation, on these points, but
generally the principle of the regulation is clear-cut
and undisputed and presents no difficulty.^ It is
with the broader questions which arise out of inter-
national fiight that the writer is concerned — for instance,

1 The question may conceivably arise of the treatment to be
accorded to a foreign machine which is not properly marked or
whose pilot is not certificated or which is otherwise deficient in the
requirements of the International Convention. Such a machine
would presumably be refused admittance, being either turned back
in fiight into its own country or forced to return by rail or road
or sea, according to the internal laws of the country which it seeks
to enter. Its treatment is a matter for that country to decide ;
the machine is outside the terms of the Convention. (See Fauchille,
Le regime juridique des aerostats, in R.J.L.A., 191 1, p. 145.)

CH. IV LANDING OF FOREIGN AIRCRAFT 45

whether a pilot requires a permit from the foreign
authorities before he emers their territory, whether
he may cross the frontier where he pleases, whether
he may fly over any and every part of the territory,
and what right of landing he has.

One important question connected with those here
discussed, namely, the question of customs control,
is dealt with in a separate chapter.

The Franco-German Accord 0/ 191 3

Some of the pre-war regulations were exceedingly
stringent in regard to the requirement of a prior
permit. The Franco-German Agreement of July,
1913,^ required an aviator who intended to fly from
France into Germany to obtain a " leaving certificate "
{certificat de sortie) from the diplomatic or consular
representatives of Germany in France ; and, similarly,
a French consular certificate was necessary for an
aviator flying from Germany into France. The cer-
tificate was granted upon presentation of evidence of
identity of the machine and of its crew, and a declara-
tion of the object of the voyage. Professor Rolland
points out ^ that the agreement did not give the consular
or diplomatic agent full discretion to grant or refuse the
leaving certificate. " He has only to ascertain whether
the documents of identity and the declarations as to
the object of the voyage have been furnished, whether
they are sufficient, and whether the aircraft belongs
to the category which may circulate freely, lie has
nothing further to do ; he cannot refuse the certificate
because the presence of such and such a pilot over his
national territory seems to him dangerous."

The Home Office Regulations 0/ 1913

The requirements of the British Homo Office
Regulations of i March, 1913, vvere still more severe.

••« R.D.I., 1913, pp. 0<j7 if. =■ K.U.l., lyij. 1'. 7-2.

46 AIRCRAFT IN PEACE chap.

The pilot of an airship intending to enter British air
was instructed to obtain a " clearance " or permit
from the British consul in the country of departure,
and he could not cross the British frontier until forty-
eight hours after the delivery of the clearance. No
similar clearance was required in the case of an
aeroplane, but the pilot had to advise the Home
Office, by letter or telegram timed to arrive there at
least eighteen hours before the aircraft reached the
United Kingdom, of the following particulars : —

(a) Place of intended landing (within the speci-

fied landing areas) ;

(b) Approximate hour of arrival ;

(c) Name and nationality of pilot.

Where the airship had originally started from the
United Kingdom, no clearance was required, provided
that the Home Office had been notified of the outward
journey, that the airship returned within a month, and
that the proprietor, pilot, and crew were British
subjects ; but, as in the case of an aeroplane journey,
the Home Office had to be notified eighteen hours in
advance of the proposed return voyage.

Free Zeppelin Rides for Officials

Upon landing, the pilot had in all cases to advise the
" authorised officer " — an official nominated by the
Home Office — and to fill up an arrival report in a
prescribed form. He obtained from this official a
permit, at a cost of j£i for an aeroplane or £3 for a
dirigible, and could not continue his voyage without
such a permit. Moreover, if the aircraft in question
were a dirigible, a British representative approved by
the authorised officer had to be taken on board. Before
leaving the United Kingdom, the pilot had to descend
in one of the specified landing localities and advise the
authorised officer.

IV LANDING OF FOREIGN AIRCRAFT 47

The Severity of the British Pre-war Rides

The extreme severity of these Regulations was the
subject of much criticism not only abroad but in
British aeronautical and other papers, especially in the
Daily Mail, that pioneer champion of aviation when the
science had but few friends in journalism. " Let
our aviators take note of this," wrote M. Henry-
Coiiannier in 1913,'* *' England is open to them only
with such restrictions that they had better stay on the
Continent. The first who dared to reach London was
Brindejonc des Moulinais. His reward was to be
forced to explain himself to a judge, who said — ' Pass
this once but do not be caught again.' The second
was Levasseur. After the temporary confiscation of
his machine and the payment of a fine, he was allowed
to return. But the generosity of this treatment has
been carefully underlined as an act of grace by the
EngHsh. Let there be no mistake about it."

As Professor Rolland pointed out in 1913,^ whatever
might be the position when international flight was
confined, as then, to occasional audacious " raids,"
the requirement of a leaving certificate would become
a serious impediment to intercommunication when
flying became more common. " It should not be
forgotten that, if international communication is to
develop, it must be subjected to rules as simple as
possible and the number of irksome formalities must
be reduced."

The Leaving Certificate and the Prior
Notification of a Flight

It is to be hoped that under present and luturc
conditions neither the leaving certificate nor the prior
notification will be deemed necessary. Europe, so
far as the Western nations are concerned, will be less

* R.J.L.A., 1913, p. 228. ^ R.D.I., iyi3. P- 722.

48 AIRCRAFT IN PEACE chap.

" on edge " than in 19 13- 14, and the bogey of espionage
should be less rampant. With satisfactory settlement
of the questions of registration and general State
control of aviation, there should be no necessity for a
consular permit. Both Russia and Bulgaria proposed
at the International Conference of Paris, 19 10, that
aircraft coming from abroad should be obliged to
obtain a " passport log " from the diplomatic or
consular authorities of the State on whose territory it
was desired to land, and that this passport should be
valid for six months only.^ The draft agreed to by
the Conference does not legislate, however, for any
permit of the kind, nor is one required under M.
Fauchille's draft Convention. The Convention
approved at Paris in 1919 does not legislate for
consular permits nor for the prior notification of the
authorities of a country which an aircraft is about to
enter. It is possible, of course, that municipal law
or regulation may still make these formalities obli-
gatory, but to do so would probably be regarded as a
departure from the terms of a Convention in which no
reference was made to them.

The System of Air Corridors of Entry

Whatever degree of " freedom of circulation " may
be conceded to aircraft, a State must always have the
right to forbid flight over portions of its territory, or
even to close a whole frontier, for reasons which seem
to it sufficient ; as, for example, for the purpose of
excluding aircraft from a plague-stricken country, or
aircraft which may drop leaflets of a Bolshevist tendency,
etc. The prohibition of flight over areas where there
are important defence works is clearly within a State's
powers. Naturally, such works will largely be on the
frontiers, and hence what is an undoubted right of
sovereignty was found, before the war, to represent
in practice a serious infringement upon the liberty of

* Catellani, Le Droit ae'rien, p. 68.

IV LANDING OF FOREIGN AIRCRAFT 49

international aerial navigation. Great Britain, France,
and Germany proclaimed extensive stretches of their
frontiers as prohibited areas, and only certain " corri-
dors " were left through which aircraft from abroad
could enter. In a map of Great Britain which is
given in the Revue de Droit International for November-
December, 1913, almost the entire coast-line is dis-
played as a shaded, i.e. closed, zone. A stretch of
coast in Aberdeen, another in Northumberland, a
tract round the Wash, a narrow neck in Essex, some
three stretches of twenty to twenty-five miles each in
Kent and Sussex, and another of about thirty-five miles
between Bridport and Dawlish, are alone left unshaded.
The Franco-German and Franco-Italian frontiers are
similarly cross-hatched as closed over almost their en-
tire extent. " Direct passage from Germany to France,"
wrote Professor Rolland in 1913,'^ " can be effected
only through the French territory between the forti-
fied territories of Toul and Nancy, on one side, and
Luneville and Epinal on the other, and in Alsace
between Chateau-Salins and Phalsbourg. Besides,
the zones prohibited by the German Government
around Wesel, Cologne, Coblenz, Mayence, and Spires
leave only a few narrow corridors above the Rhine.
In its widest part the passage thus established does
not exceed 50 kilometres in width. In these circum-
stances it is evident that liberty of international aerial
circulation is greatly restricted."

The Necessity for Corridors of Entrance

It is unlikely that the system of corridors of entrance
will be entirely abolished in Continental countries,®

' R.D.I. , 1913, p. 711.

* Dr. Montenot {La circulation ae'rienne envisagde au point de vue
juruliquc, p. 07) holds that, to prevent contagion vi.i the air, the
number of points of entry of each country's atmos})here should be
reduced to the minimum. For the purpose of customs control,
also, j7 faut canaliscr la circulation adricnne (p. 100). To those
who urge tliat, speed and directness being the prime a.sset3 of avia-
tion, to confine the aviator to a narrow, prescribed route is to paralyse

50 AIRCRAFT IN PEACE chap.

but, so far as Great Britain is concerned, the new
" Air Navigation Regulations " mark an important
departure from former practice by allowing freedom
of route to foreign aircraft provided they land at an
** appointed aerodrome " on first arrival. The system
of entry corridors would indeed be a difficult one to
apply to an island country when international circu-
lation was developed. The airman who was driven
out of his course in flying, say, from Holland to Essex
and found himself with a failing petrol supply opposite
a prohibited zone would be in an unenviable position ;
his choice would lie between drowning and becoming
— in the sight of British law — a criminal. Although
the British Regulations are silent as to corridors of
entry, they provide for certain named prohibited
areas, as did the Home Office Regulations of 19 13,
and forbid all aerial circulation over the named places
or within three statute miles of any of them.^

Where an Aviator tnust, and may, Land

When an aviator has crossed the frontier, where
must and where may he land } Both are questions
upon which each State has the right to decide, but
what it does decide may follow lines agreed in an
international convention. Where the aircraft must
land depends upon the regulations which the State
entered has thought it necessary to make in the

it, to rob it of its raison d'etre, Dr. M. replies that horseraen would
often like to ride over private property, on. a direct line, yet they
refrain out of respect for the law of property (p. 114). The Inter-
national Convention recently concluded at Paris reserves (in Article 3)
the right of each State to close certain areas " for military reasons
or in the interest of public safety " ; and the Customs Regulations
in Annex H of the same Convention oblige foreign aircraft to enter
between points fixed by the subjacent State. Hence, although the
British regulations do not specifically provide for " corridors of
entry," the international regulations do ; and it is further to be
observed that the prohibited zones which the British regulations
maintain reduce the paths of entry to what are in effect prescribed
corridors.

^ See Appendix II, Schedule VI

IV LANDING OF FOREIGN AIRCRAFT 51

furtherance of such pubHc interests as the control of
customs, hygiene, and immigration or the defence
of the countr}^ Considerations of a pubHc nature
may also enter into the decision of the question where
an aircraft may land ; the Government may decide,
for instance, to deny to foreign aircraft the right to
carry goods or persons between two points in its terri-
tory and may, for this reason, restrict the permissible
stopping-places. The second question is, however,
mainly one in which not the State and the foreign
aircraft, but the latter and the individual property-
owner are brought into relation.

The Pre-war Regulations as to Landing

Under the British Home Office Regulations a foreign
aviator entering the United Kingdom was obliged to
land within five miles of the coast and within the areas
scheduled as open to foreign aircraft. The Franco-
German Agreement of July, 191 3, provided that aviators
who did not comply with the regulations as regards
obtaining a leaving certificate, etc., and to whom asylum
in French or German territory, as the case might be,
was granted in case of necessity, should land " as
soon as possible " and advise the nearest civil authori-
ties. The inference is that those who did comply
with the regulations were not obliged to land until
they reached their declared destination ; in any case,
nothing is specified as to places for landing.^*^ The
French Decrets of 21 November, 191 1, and 17 Decem-
ber, 1913,^^ provided that an aircraft arriving from

1° The Ordonnance of the Austrian Ministry of the Interior of
20 December, 1912, relative to " measures of police af,'ainst attempts
upon the public or private security by aerial locomotion vehicles,"
provided that upon every landing {i.e., even in the case of a flii^ht
within the country), the " crew " should immediately notiiy to the
civil or military authorities particulars of the machine and its
starting-point. No mention is made in this Ordonnance of air-
craft coming from abroad. (R.D.I. , 1013, Documents, p. 73.)

1^ D'Hooghe, Droit adrien, p. 45 ; R.J.L.A., 191 1, p. 308 ; 19M.

P- 15-

F. 2

52 AIRCRAFT IN PEACE chap.

abroad should advise the mayor of the locaHty im-
mediately upon landing, with a view to the fiscal
formalities being complied with before the cargo or
contents of the aircraft were removed. The question
of landing upon arrival from abroad is largely a question
of customs control and is dealt with more fully in the
chapter on Customs. Here it is sufficient to say that
the obligation to land at some point, whether on the
frontier or inland,^^ at which examination of the
aircraft's load can be carried out, is one which will
almost certainly be imposed by all States upon foreign
aircraft entering their atmosphere, unless the journey
is a " through " one in which no landing is contem-
plated in the country in question. The British
" Air Navigation Regulations " of 19 19 oblige an air-
craft entering the United Kingdom from abroad to
land, if it does land at all, at an " appointed aerodrome" ;
but there is no specific provision that it must land,
and nothing to forbid such an aircraft from returning,
say, to France without landing in England. ^^

^- M. Henry-Coiiannier proposed in 1913 that aviators should
be obUged to aUght in territorial waters. " We conceive," he wrote,
" that the dehcate problem of international aerial circulation may
be solved by assimilating the zone of territorial water to a frontier
zone in which all inquiries by the police and visits hy the customs
officers would take place, in which authorities of free entrance
would be granted, the machines would be examined, permits of
circulation, pilots' licences, and certificates of navigability delivered.
There is no technical objection to compelling all aircraft to be in
a position to alight in territorial waters before entering a foreign
country which they approach from the sea, the obligation to carry
floats being a light one." For seaplanes or flying-boats M. Henry
Coiiannier's suggestion would of course be quite practicable, but
to expect an ordinary aeroplane to be equipped with floats as well
as an under-carriage is surprising. (R.J.L.A., 1913, p. 216.)

1^ The Customs Regulations in Annex H of the International
Convention of 19 19 make it clear (paragraph 12) that such an aircraft
need not land ; but it must keep to the normal air route and give
the prescribed signals. It is laid down in the Air Navigation
Regulations, 1919, that " no place in the British Islands shall be used
as an aerodrome or as a regular place of landing or departure by
passenger aircraft carrying passengers, unless it has been licensed
for the purpose by the Secretary of State, and any conditions of
such licence are complied with." [Article 4 (i).]

IV LANDING OF FOREIGN AIRCRAFT 5;

Landing on Private Property

The pilot may, however, have a " forced landing " ;
or, having landed at the prescribed point, he may ascend
again and wish to land elsewhere. Has he the right
to come down anywhere ?

The question is one of internal law. It has, how-
ever, been discussed at some length by the Committees
and Congresses which occupied themselves with the
international law of flight, and some of the proposed
conventions contain draft provisions upon the subject.
The International Code approved by the Comite
juridique international de V Aviation at Paris (191 1),
Geneva (19 12), and Frankfort (19 13) legislated as
follows for landings^'^ :

*' Aircraft may land on unclosed property, and
alight and navigate on all waters."

*' Except undtr force majeure, they may not land or
alight —

(i) within closed property ;

(2) within agglomerations, ports, and roadsteads,
except in places reserved for this purpose ;

(3) in navigable channels where the difficulty
of passage necessitates this prohibition, which
must be expressly formulated by the competent
authority."

The affirmation here made of a right of landing in
unclosed property was criticised as being " too abso-
lute " by M. Hennequin, of the French Ministry of
the Interior, at the Congress of the Comite juridique
in 1911.^^ Liberty of landing ought only to be
recognised, he argued, where there were no special
landing-grounds within a radius to be specified.
The British representative, Mr. Perowne, also main-
tained that aviators should land only on ground

" R.J.L.A., 1913, p. 329. 1^ R.J.L.A., 1912, p. 150.

54 AIRCRAFT IN PEACE chap.

specially allocated for that purpose. To this Senator
Reymond objected that it was impossible to impose
such an obligation on aviators if there were no landing-
grounds yet in existence, and the Congress adopted
his view of the matter.

The Strange Doctrine cujus est solum . . .

There has always been a divergence between British
and Continental opinion as to the right of landing.
To the Englishman property is something sacred. It
was indeed a notable concession when the British
sub-committee of the Comite jiiridique brought them-
selves to admit the right of innocent passage through
the air.^^ Legally the right was contestable.^'^ Not
only British common law, but, as Professsor Lycklama
A Nijeholt has shown,^^ the codes of practically all the
civilised countries admit the principle cujus est solum
ejus est usque ad coelum. This maxim is sometimes
attributed to the Roman code, but it is really a " gloss "
upon Roman law. M. Loubeyre searched for it, and
could not find it even in the post-glossators.^^ M.
Guibe, however, was more successful ; he found a
gloss, with the sign " Ace," in the margin of an edition
of the Digest printed in Paris in 15 19, at the law
Si hitercedat, and thus tracked the famous maxim to
its author, the glossator Accursius.^^ That worthy
scribe can have little foreseen to what strange conditions,
in what a new, inconceivable world, the application
of the line which he penned would one day become a
perplexity and a problem to later scribes.

18 R.J.L.A., 1910, p. 175.

1'' Dr. Montenot {La circulation aerienne envisagee au point de
vue juridique, p. 62) holds that " it is indisputable that the rule of
jiirisprudence gives the proprietor of the ground a veritable right
of property over the aerial space above his land."

1* Relations entre I'espace aerien et le territoire, R.J.L.A., 1910,
p. 269.

1* Les principes du Droit adrien, pp. 23 &.

-^ Essai sur la navigation aerienne en droit interne et en droit
international, pp. 24 ff.

IV LANDING OF FOREIGN AIRCRAFT 55

The Right to Fly over Private Property

The question of the right of flight over private
property had in 1909-19 13 an importance which it
has largely lost to-day. Then airmen hugged the
ground ; their machines had a low ceiling, and M.
Merignhac could declare in 19 14 that it was " hardly
practicable " to require an aviator to keep above the
400-metre line.^^ Now machines have a ceiling of
anything up to 20,000 feet and aviators prefer to fly
at some thousands of feet altitude, partly because there
is better flying air at that level, partly because there
is more space below in which to right a machine if
it stalls, side-slips, or nose-dives. In these days of
high flying the trespass of the cross-country airman
is less noticeable than seven or eight years ago.

The Absurdity of Private Ozvnership of the Clouds

In any case, to recognise a right of private property
in the air would to-day be a monstrous anachronism.
" At a time when the old quiritarian theory of abso-
lutism is breaking down at so many points," says
M. Blachere,-^ " how can it be tolerated as against
him whom assuredly it never foresaw and who causes
the least evil to the proprietor — the aviator ? " Owner-
ship implies occupation, use, possession. It is as
foolish for a man to claim ownership of the whole
air above his property, says M. Guibe, as to claim
ownership of a hundred hectares of land at the North
Pole.23 It will probably be safe to leave it to the
common sense of courts and legislatures to resist
any attempt to uphold or reinstate a maxim which is

^^ Le domaine aerien prive et public, R.D.I., 1914, p. 23. So
in 1910 one finds Dr. Lycklama stating that the proposal of M.
Fauchille to make the air' free for circulation above the 1,500-metre
line " would render aerial navigation hardly practicable " {peu
praticable). (R.J.L.A., 1910, p. 243.)

'■'^ L'air voie de conimunication, p. 63.

" Essai SUV la navigation adrienne, p. 66.

56 AIRCRAFT IN PEACE chap.

utterly repugnant to the spirit of human progress.
The proprietor's right to the undisturbed possession
of his property must certainly be recognised, but he
must not claim an extension of that right beyond the
range of its beneficial exercise. If the right of property
extends into the atmosphere above, says Ihering,^*
it does so only as the basis of a claim that the pro-
prietor must not be deprived of air, light, and the
rain from heaven, that he must not be prevented from
building as he wishes, and that his occupation of his
land must not be made impossible by pestiferous
odours, or excessive smoke or dust. Beyond these
limits the right to the atmosphere loses its raison
d'etre.

M, Passion* s Formula

The position in regard to the conflict of property
and flying rights was well described by M. Passion in
1912 in the two following propositions^^ : —

(i) The ownership of the soil carries with it
the ownership of the air-space above it so far as
an interest in the exercise of this right of property
exists.

(2) The owner of the soil must allow aerial
circulation above his domain in conformity with
law and administrative regulation.

The ground-dweller has unquestionably a right to
object to such " house-top skimming " or low flying
as could fairly be regarded, legally, as a " nuisance,"
but to flying over his head at a reasonable height he
cannot be allowed to present obstruction on any plea
of proprietorship. Urged to its logical extreme the
contention of the champions of private rights in the
air would mean that a suburban freeholder owned a
little portion of the Milky Way.

2* Oeuvres choisies, quoted by M6rignhac, Le domaine adrien
prive et public, R.D.I. , 1914, pp. 216-17.
25 R.J.L.A., 1912, p. 198.

IV LANDING OF FOREIGN AIRCRAFT 57

The Right to Lafid in Private Property

Where landing comes in question the position of the
proprietor of the soil is stronger. So long ago as
19 10 the Congress of Verona on Aerial Locomotion
set a good example of moderation by refusing to sub-
scribe to the doctrine that the right to fly implies the
right to land. To have done so, says its secretary,
Professor Arnaldo de Valles,^^ would have been to
attribute to the aeronaut a right of landing at his good
pleasure, with resulting injustice to the land-dwelling
citizen. The Congress recognised a right of landing only
under force majeure. The Syndicat General de I'Aviation
dealt less satisfactorily with the problem in the rules
approved by that body in the same year.-" '^ Flying
machines," they said, " have the right to land where
they please if the landing does not constitute a violation
of the right of property." This pronouncement leaves
one very much where one was. But it does at least
recognise the right of the property-owner, which some
champions of aviation would abolish or ignore. The
right to land under the compulsion of vis viajor, but
only under such compulsion, can hardly be denied,
but it should be linked with an obligation to make
good all damage done. The whole question of damage
is dealt with by the writer in a later chapter.

The Difficulty of Knowing Private Ground

If an aviator is debarred from landing in private
property, he ought to know what is and what is not
private property. M. Renard proposed in 191 1 that
ground in which landing was forbidden should be
marked by distinctive signs. -^ M. Fauchille objected
that in that case an aviator could not land at all, for
proprietors would take care to mark off all their
property and the country-side would bristle with signs.

2' Le Congrds de Verone de igio, R.J.L.A., igio, p. 177.
" R.J.L.A., 1910, p. 160. -» R.J.L.A., 1912, p. 151.

58 AIRCRAFT IN PEACE chap.

As, however, the text which the Congress of the
Comite juridique actually approved forbade landing
in " closed property," and as " closed property "
was not defined— a proposal to explain it as ground
attached to a dwelling-house was defeated — it is
doubtful whether the result of the deliberations of
the Congress was to secure to the aviator that freedom
of landing which was desired.

The Protection of the Human Birds of the Air

Wiser than the Comite juridique^ the official delegates
who met at Paris in 1910 left the thorny question of
the right to land severely alone.^^ It is a question
essentially for the internal legislation of each country
to decide. What an international agreement can
usefully provide, however, is that the contracting
Governments shall establish a sufficient number of
landing-grounds, either State-owned or controlled
by the State, and that these landing-grounds shall be
available for the use of foreign aircraft, at reasonable
landing fees. It can also provide that the several
contracting Governments shall take the necessary
measures to protect the new race of human birds
both by providing assistance to them at need and by
introducing legislation or issuing regulations to prevent
such unwarrantable obstruction as was the subject of

29 The Aerial Navigation Bill wliich was drafted (but not finally
revised) by the Home Office in 1910-11 did not recognise any right
of landing ; it provided that mere flight over private property
should not be regarded as trespass, but that this provision should
not prejudice any rights and remedies of a person who sufifered
injury from an aircraft in person or property. The French draft
Act of 7 May, 1913, forbade landing in closed property connected
with a habitation, save under force majeure, or in " agglomerations
outside the places allocated for this purpose by the competent
authority." It allowed by implication (as an explanatory note
expressly states) landing in private property which was not classifi-
able as at once closed and attached to a dwelling. (Piogey, Les
regies de droit international applicables d I'aviation, p. 120 ; R.J.L.A.,
=1913, PP- 177. i8i-)

IV LANDING OF FOREIGN AIRCRAFT 59

an action in the French courts in 1913.^'^ This
action had reference to the erection by a M. Coquerel
of a wooden fence, more than 30 feet high, surmounted
with iron spikes, on his land facing the Clement-
Bayard hangar at Trosly-Breuil, the object being to
prevent the dirigibles from flying over M. Coquerel's
land. The courts held that M. Coquerel's action was
an abuse of his rights of property and ordered him
to remove the obstruction.

Technical Progress the Probable Solvent of
the Legal Difficulties

It is possible that technical improvements, especially
in the direction of securing a low landing speed and
efficient braking mechanism, will make landing a
far less difficult and dangerous operation in the future
than it is to-day. Much progress has already been
made. When Parisot landed in Paris in 19 10 there
was at once a popular outcry for the prohibition of
descents within the enceinte of Paris, ^^ and the French
Decret of 21 November, 191 1, forbade all landing
near " agglomerations," ^^ while the Ordonnance of
the Prefect of the Seine of 19 12 not only made landing
illegal within the enceinte, but obliged aviators to fly
over the Department of the Seine at such a height
that they could land clear of agglomerations in the
event of engine failure. ^'^ Yet Paris was only mildly
interested and not at all alarmed when Vedrines landed
his Caudron on the roof of the Galeries Lafayette in

3° R.J.L.A., 1913, pp. 83, 336. 31 R.J.L.A., 1911, p. 294.

32 R.J.L.A., 1911, p. 307.

33 R.J.L.A., 1912, p. 288.

The Massachusetts Law of May, 1913, forbade flying over a city
of that State at an altitude of less than 3,000 feet ; for towns of
over 5,000 inhabitants the limit was reduced to 1,000 feet, and for
those of smaller size to 500 feet. (R.J. I. .A., 1913, p. 217.)

See also para. 5 of the Air Navigation Regulations, 1919, forbid-
ding low flying over towns, and " trick" ilying where danger would
be caused to persons on the ground. Similar rules are laid down
for the R.A.I'\ in the Air Ministry Weekly Order 674 of 1919-

6o AIRCRAFT IN PEACE ch. iv

January, 1919, and flights over the city, as over London,
are to-day a common occurrence.^'*

When machines fly habitually at an altitude of a few
thousand feet, when they are reasonably reliable, and
when landing-grounds are available at intervals of
ten miles or a little more, voluntary landings in private
property should be very rare.

3* It was announced in the Press in April, 19 19, that Captain
Garibaldi was manufacturing in America aeroplanes with a wing
span of less than 20 feet," capable of alighting in streets. The
Grahame-White " Bantam " is only 20 feet in span, and there
is nothing impossible in the project ; but whether the American
municipal authorities would allow these pigmy machines to come
down in their thoroughfares is another matter.

CHAPTER V

CUSTOMS

A Question of Administration rather than Law

The control of the entry of dutiable goods by air
is a question which presents considerable practical
difficulty — difficulty of administration rather than of
law. It is a question for which the framers of inter-
national conventions have shown themselves perhaps
wisely reluctant to legislate. So far as it is a question
of law, it is one of iiiternal law, but that is no reason
why, seeing that there is as yet no internal law on the
subject, the makers of an international code should
not lay down the principles by which national legis-
lation and regulation should be guided.

The Proposals made at Paris in 19 lo and 19 19

The draft Convention drawn up at Paris in 1910
dealt only with the question of customs duties upon
the machine itself and its equipment and upon the
baggage and personal effects of the aeronauts and
passengers. It provided (Article 33) that the aircraft
and equipment, if not intended to be kept in the
country entered, should enjoy exemption from customs
duties provided they complied with the usual require-
ments in such cases, such as the obtaining of permits
of temporary admission or the triptych (the permit for
free circulation abroad, which obviates payment of
duties on each frontier when a motorist is touring in
foreign countries). The passengers' and aeronauts'

62 AIRCRAFT IN PEACE chap.

baggage and personal effects should be treated, it was
proposed, as similar objects imported by travellers
are treated in land or sea entry. The Convention
lately signed at Paris, while reserving to the contract-
ing "States the right to enter into separate bipartite
treaties in regard to customs, gives in one of the
Annexes (Annex H) certain general provisions on the
subject which are of great importance. Further refer-
ence is made to them later in this chapter.

Pre-war Legislation as to Customs

National legislation has also shown itself unwilling
to deal with the question of customs control in a
positive and constructive manner. The Home Office
Regulations of 19 13 forbade the importation into the
United Kingdom by air of goods chargeable with
customs dut}^ or prohibited by customs laws ; but
the passengers were allowed to carry with them a
small quantity of dutiable articles for use on the
voyage.^ The French law which was drafted in the
same year forbade the transport by aircraft of goods of
foreign origin, or of French origin unless evidence of
such origin accompanied them (Article 22). This
prohibition related to internal aerial circulation ;
another Article — No. 17 — stated that an administrative
regulation would be published specifying the con-
ditions and formalities to which aircraft entering
France would be subject, and the Decret of 17 Decem-
ber, 191 3, which was the only regulation issued on
this point, instructed pilots coming from abroad to

1 " No person in any aircraft entering the United Kingdom
shall carry or allow to be carried in the aircraft : —

[a) Any goods the importation of which is prohibited by
the law relating to customs.

(&) Any goods chargeable upon importation into the United
Kingdom with any duty of customs except such small quantities
as have been placed on board at the place of departure as being
necessary for the use during the voyage of the persons conveyed
therein."
(Home Office Regulations, i March, 1913.)

V CUSTOMS 63

advise the mayor of the locality at once upon landing,
so that the cargo could be guarded until it was ex-
amined by the fiscal authorities (Article 24). The
Serbian Regulations of 19 13 provided (Article 11)
that " Machines coming from foreign territory (private,
public, police, but not military) may pass into Serbian
territory only in the places and at the hour fixed by
the customs authorities in agreement with the Minister
of the Interior. Such machines must immediately
descend at the prescribed place to comply with the
legal formalities and the stipulations of this Regula-
tion."

The Views of Judge Meyer and Dr. Wilrth

The question of customs control was not discussed
by the Institute of International Law when that body
considered M. Fauchille's draft code at Madrid in
191 1, nor by the Comite jiiridique de VAviatioji, but
two useful papers were contributed on the subject
to the journal of the latter society, over the signatures
of Judge Alex. Meyer of Homburg^ and Counsellor
Dr. Wiirth of Darmstadt.^

The view of both these writers was that with the
development of aerial transport the whole system of
levying customs duties on the frontiers of a country
would have to be modified. At present, said Dr.
Wiirth, the activities of the customs authorities con-
centrate on the frontiers. " Foreign merchandise may
pass the frontier only at determined hours — the
' customs hours ' — and by determined routes^ — the
' customs routes.' The merchandise itself must be
transported along the prescribed road without stoppage
and without change of direction ; it must be im-
mediately presented at the ' customs frontier.' To
make these obligations eftective there exists a finely-

^ L' aviation ei le droit public, R.J.L.A., 1912, pp. 186-188.
' Aeronautique et administration douaniere, R.J.L.A., 1912, pp.
65-71-

64 AIRCRAFT IN PEACE chap.

meshed net of customs posts along the frontier and far
into the interior of the country ; there is also a corps
of frontier-guards, charged with extended powers
against persons and goods, watching openly or in-
visibly the routes of traffic and ensuring with all the
force of the law the observation of regulations which
recognise no personal privilege, not even in favour of
a Chief of State." *

The Turning of the Customs Frontier

*' Now in this system," he proceeds, " a sudden
breach has been made by aeronautics, the new mode
of transport of persons and goods ; its operations
are compromised, its work is imperilled." Flight has,
as it were, put the whole machinery of customs control
out of gear. Yet flight is no enemy of the customs
officer ; it is a friend^ — a friend which will one day
bring grist in abundance to the customs mill. But at
present it is an inconvenient friend, whose comings it is
difficult to gauge and control. To halt incoming air-
craft on the frontier would be to lose account of the
tendency in commercial aeronautics to make a voyage
extend to a machine's maximum range of action.
*' In a treaty discussed between the United States and
Mexico," says Dr. Wiirth,^ " the following provision
is found : ' Aerial vehicles of all kinds which wish
to cross the frontiers of the two States . . . are
obliged to land at the frontier, to comply with the
formalities prescribed by the customs, health, and
immigration authorities.' Such a treaty could only
be considered as one intended to suppress international
aviation." " It is precisely in this manutention at the
frontier," he adds,^ " that the customs administration
finds the most effective instrument for guaranteeing
its rights and aviation, on the other hand, an intolerable
difficulty which it would avoid at any price."

* Loc. cit., p. 67. ^ R.J.L.A., 1912, p. 69.

* R.J.L.A., 1912, p. 70.

CUSTOMS 6s

Customs Houses must move Inland

The solution, in his view as in Judge Meyer's, is
to set back the customs houses, to create " aero-
nautical ports " in the interior of each country, and there
to estabhsh a customs control.'^ " In these ' ports '
it will be necessary to create the necessary machinery
for the manutention of the taxable merchandise, and
provisional warehouses, with a staff of special em-
ployes, or, in other terms, to establish with the aero-
nautical ports fixed or flying customs posts." ®

The System of Manifests

The aviator may, however, even with no evil intent,
descend elsewhere. In that case, both Judge Meyer
and Dr. Wiirth^ adopt the suggestion which M.
made in his draft Convention of 1910.^^ M. Fauchille
proposed that an aircraft conveying merchandise
should be obliged to provide itself, before depar-
ture, with a manifest certified by the competent fiiscal
authorities of the country which it was leaving. Then,
at the first landing in the other country, the pilot
should at once notify the nearest civil authorities and
present his manifest. Any goods detailed in the
manifest but not producible on landing would be

^ Dr. Guibe [Essai sur la navigation adrienne en droit interne et
en droit international, p. 177) proposes, however, that aircraft should
be compelled to stop at the frontier and there be visited ; or, if the
machine does not stop, that its arrival should be signalled by tele-
graph or telephone to the authorities in the interior of the country,
with a view to the movements of the machine being specially watched.
He proposes that a heavy fine should be levied for failure to stop
at the frontier.

8 K.J.L.A., p. 70. » R.J.L.A., 1912, pp. .70, 188.

^^ Annuaire de I'Institut de Droit International, 19 10, pp. 309-310 ;
1911, pp. 109-110.

France proposed at the official Conference at Paris in 1910 that
freight-carrying aircraft should be obliged to land in certain places
specially designated, and that the presentation of a manifest pre-
pared at the place of loading and certified by the fiscal authorities
should be obligatory. (Catellani, Le droit airien, Bouteloup trad.,
p. 13G.}

F

66 AIRCRAFT IN PEACE chap.

taxed as if they were included. Such a rule, says
Judge Meyer/i may be inequitable in the case of the
genuine jettison of cargo for the purpose of lightening
a machine, but in that case it would always be possible
to allow exemption from duty if the facts were estab-
lished. Dr. Wiirth proposes that a special mark should
be placed by the customs authorities upon aircraft
which had paid their customs dues. A good deal
might be done to facilitate customs control by insti-
tuting a system of special marking, at a distance from,
the nationality and registration marks, for machines
which are carrying freight " booked through " to such
or such a place, for those returning unladen, etc.
There are objections, of course, to making machines
a mass of hieroglyphics or decorating them with all the
colours of the rainbow, but a judicious use of significant
markings, the affixing of which might even be under
international control, would be a help not only to
customs authorities but to those who are concerned
with immigration and quarantine.

Smuggling by Air

Smuggling by air will have to be reckoned with,
but it is unlikely that the practice will attain any
great magnitude. The conditions of aerial transport
are very different from those obtaining on land or sea.
An aircraft heralds its movements by a clamour which
no system of silencing the engine is likely entirely
to prevent. The secrecy which is essential to smuggling:
is impossible in the air. Both owners and pilots of
aircraft, moreover, are placed by their dependence
upon the authorities for the permission to engage in
aerial navigation in a position which makes it un-
profitable to break the law. The suspension or can-
cellation of the registration of a machine or of a pilot's
certificate would be a heavy price to pay for such
profits as are likely to accrue from the carriage of

" R.J.L.A., 1912, p. 188.

V CUSTOMS 67

contraband. The capacity of an aeroplane, at any
rate, is not sufficient to make the risk worth while.
No doubt there will be some illicit traffic ; but so
there is at present in sea and land transport. Smug-
gling on a large scale will probably be impossible in
practice.

The Goods Suitable for Illicit Air-ru7ining

Obviously the aerial smuggler will not concern
himself with heavy and bulky articles such as motor-
cars or even beer. His choice will be the small com-
modities or articles which are heavily taxed in pro-
portion to their weight or value. The customs
duty on saccharin imported into the United Kingdom
is 85. 2)d. per oz.^^ ; that on tinder boxes using spirit
is i^. each ; on playing-cards, 35. 9^. per dozen packs ;
on clocks and watches, 33^^ per cent, ad valorem ;
on cigars, 15^. 7 J. per lb. ; on cigarettes, 12^. 7^. per
lb. ; on chloroform, 45. ^d. per lb. Ether (acetic,
butyric, and sulphuric) and ethyl bromide, chloride,
and iodide, are also heavily taxed. It is in the case
of such commodities as these that aerial smuggling
is to be anticipated.

The Prevention of Air Smuggling

The authorities will have to take steps to deal with
the danger, limited as it is, and to establish the neces-
sary preventive organisation. A force of aerial police
or preventive officers, shooting down ruthlessly the
new *' Smuggler Bills " of the air, is perhaps not
altogether a romantic vision of the future. ^^ Aerial

^* The danger of an illicit traffic in saccharin was pointed out
many years ago by Major Baden-Powell, who urged that regula-
tions for the control of dutiable imports by air should be drawn
up. (li.J.L.A., ICJ12, p. 372.)

" Ihe formation of a corps of " douaniers aviateurs " in France
was suggested in 1910. M. Delanney, Director-General of Customs,
did not then consider the proposal a practical one ; in his view
customs control was necessarily a ground control. (R.J.L.A., 1910,
p. 291.)

F 2

68 AIRCRAFT IN PEACE chap.

police there will certainly be, but the customs work
could probably be done effectively from the ground.
In an interesting article on " Aerial Smuggling " in
Flight for 6 March, 1919, Captain P. G. Marr, R.A.F.,
gives reasons for holding that, to prevent smuggling
by air, an aerial police force will not be necessary in
England. His view is that a force of " airguards,"
who will be a kind of combined coastguards, police,
and auxiliary customs officers, will be able to do all
that is necessary from the ground. They would be
stationed all over the country, being in telephonic
communication with each other and the customs and
Royal Air Force authorities, and would act in close
co-operation with the police. Machines entering Eng-
land would be required to fly below a certain limit of
height, so that they could be identified, and only along
certain " corridors " of entry, and it should always
be possible to track them to their landing-ground,
where they would be visited by the Customs repre-
sentatives. Night flying machines will be a difficulty.
Captain Marr suggests that a pilot who proposed to
fly by night should be obliged to obtain a special
permit and to submit his machine for examination
for contraband before starting. A cross-reference
would be given on his permanent licence to his special
{ad hoc) permit. The airguards who demanded his
licence would then see that he was the holder of a
special night permit and would keep the machine
under observation during its landings en route.

Recent Regulations for Aerial Customs Control

At the " aerogares " or " aeroplaces " which are
licensed for the entry of dutiable goods a staff' of
customs officials will be stationed and the prescribed
formalities will be carried out. Already the French
authorities, it is stated in the Press, have made arrange-
ments to establish a permanent douane at the Farman

V CUSTOMS 69

aerodrome at Toussus-le-Noble near Paris. The
British " Air Navigation Regulations, 19 19," also
provide, in Schedule VIII,^"* for the establishment of
customs offices at the " appointed aerodromes " (at
present New Holland, Hadleigh, Lympne, and Houns-
low), and require all aircraft carrying goods into or
out of the United Kingdom to land or load at these
aerodromes. If a foreign aircraft lands elsewhere,
the pilot must report to the customs authorities or the
police, and no goods may be unloaded and no passenger
may leave the immediate vicinity without the consent
of the customs officer. Provision is made for the
rendering to the customs authorities of an application
for clearance, with a manifest and declaration, by the
pilot of an aircraft carrying goods out of the United
Kingdom, and these forms, when signed by an officer
of customs, become the authority for the aircraft to
leave the Kingdom. Having received its clearance,
an aircraft must not again land in the United Kingdom.
Goods imported must remain in a *' transit shed "
at the appointed aerodrome until they are examined
and cleared by the customs authorities. To meet
the case of a fraudulent attempt to represent goods
which had really been brought from abroad as having
been conveyed from another aerodrome in the United
Kingdom, para. 8 of Schedule VHI provides that
when goods are loaded for conveyance by air from one
British aerodrome to another (appointed) aerodrome,
the pilot must obtain at the first a *' certificate of
departure " as evidence of the home origin of his
journey, and — unless there are suspicious circum-
stances— the customs officer at the aerodrome of
arrival will in such a case exempt the goods from
inspection, on production of the certificate. Another
interesting paragraph is that which forbids a pilot to
abduct a customs officer, by making a sudden ascent
during the examination of the aircraft.

'* See Appendix II.

70 AIRCRAFT IN PEACE chap.

The International Convention of igig

The British Regulations are in agreement with, but
are more detailed than, the general provisions of
Annex H of the International Air Convention just
signed at Paris. The latter provide that, with the
exceptions presently to be mentioned, aircraft flying
internationally must depart from and land at " customs
aerodromes." They must follow the route prescribed
by the subjacent State. If, owing to force majeure,
they leave this route, they must land at the nearest
customs aerodrome on their route, and if forced to
land before reaching such an aerodrome they must
inform the local police or customs authorities, who
stamp the log-book and manifest and inform the
aviator to what customs aerodrome he must proceed
to obtain clearance. Every aircraft carrying goods
out of the country must have a manifest and declaration
verified, stamped, and signed, at the same time as the
log-book, by the customs officer at the aerodrome of
departure. If no goods are carried, the log-book only
is signed by the police and customs officials.

The Special Privileges of Postal and certain other Kinds

of Aircraft

The exceptional cases referred to in the last para-
graph are those of postal aircraft, of aircraft belonging
to aerial transport companies regularly constituted and
authorised, and of aircraft belonging to members of
recognised touring societies not engaged in public
transport work. These must follow the prescribed
air-route and make their identity known by agreed
signals as they fly across the frontier. They need not,
however, land at the ordinary customs aerodromes,
but may be authorised to begin or end their journey
at certain approved inland aerodromes (which would
presumably be their own aerodromes in the case of

V CUSTOMS 71

postal and transportation aircraft), at which customs
formaUties must be compHed with.

The Rules of Annex H of the Convention

Annex H further makes the distinction clear
between the journeys of (i) foreign aircraft which
neither set down nor take up passengers or goods in the
country visited ; (2) those which do take up or set down.
The former aircraft are bound only to keep to the
normal air-route and to signal their identity at the
prescribed points. The latter aircraft are bound to
land at a customs aerodrome and the name of such
aerodrome must be entered in the log-book before
departure. When the aircraft lands, the customs
authorities examine the papers and the cargo and take
any necessary steps to ensure the re-exportation of
the machine and the goods, or the payment of duty
instead. If the aircraft sets down or takes up goods,
the customs officer certifies the fact on the manifest.
It is also provided that, in addition to any penalties
under internal customs laws, infringements of the
regulations shall be reported to the State in which the
aircraft is registered and that State shall suspend tem-
porarily or permanently the certificate of registration.
For the further provisions of Annex H and particulars
of the form of manifest and declaration, reference
should be made to Appendix I of this book.

The *' Customs Hours "

Under the British " Air Navigation Regulations,"
goods can be unloaded from aircraft arriving from
abroad only '* between such hours as the Commissioners
may prescribe." Some latitude in regard to the
" customs hours " will probably have to be allowed.
The hours for unloading ships are between 8 a.m. and
4 p.m. in the summer and 9 a.m. and 4 p.m. in the
winter. These hours may be varied with the special

72 AIRCRAFT IN PEACE chap.

permission of the Commissioners of Customs, and the
discharge of free goods in bulk can take place at any
hour, without any charge to the importer for the cost
of supervision, except where the customs officers are
called out for short broken periods at night at the
importer's request. Since speed of clearance will
be one of the important requirements of air shippers,
some elasticity in the rules as to official hours will be
necessary.

The Examination of Dutiable Goods

Under the customs laws goods which are removed
without being examined by the customs officers are
forfeited, as are also goods concealed or packed in such
a way as to deceive. A penalty of £ioo or treble the
value of the goods contained in the package is also
imposed. The importer bears all the expense of re-
moving the goods to the place of examination (which,
under the Air Navigation Regulations, would be in
the appointed aerodrome) and of opening, weighing,
re-packing, sorting and marking them. The detailed
rules as to the percentage of packages in the various
classes which must be examined by opening or by
boring with the " spit " will no doubt apply also to
air cargoes.

Forms of Entry of Imported Goods

The Air Navigation Regulations require the importer
of goods by air to deliver to the collector of customs and
excise *' an entry of such goods in accordance with
the provisions of the Customs Acts." The forms of
entry differ according as the goods are (i) dutiable
goods for home use, (2) dutiable goods for ware-
housing, (3) free goods. The form when filled up
is signed by the customs officer, after payment to the
collector of the customs duty chargeable, and becomes
the warrant for the landing or delivery of the goods.

V CUSTOMS 73

When the importer is without precise information as to
the description, quantity, and value of the goods, he
can clear them upon a provisional authority called a
*' Bill of Sight," which must be replaced by an entry
upon the proper entrv form within three days of the
landing. A special form of entry called a '* Bill of
Store " is applicable to British goods re-imported
into the United Kingdom within five years of their
exportation. 15

Drawback on Exports

Claims for drawback (the allowance made upon
dutiable goods which are exported) will also have to
be provided for in connection with aerial shipments.
" Debentures " will have to be prepared and certified
in the same way as when drawback is claimed on goods
exported by sea.

^= The forms at present in use in England are No. 107, Entry for
Home Use ex-ship [or aeroplane] of Goods liable to Ad Valorem
Duties, and No. 22 for other dutiable goods. These forms, which
a-e obtainable from the Stationery Office, contain the following
particulars : — port of importation, name and address of importer, of
con-igner, and of the merchant paying the duty, with description
and value of the goods and amount of duty payable. They also
contain a declaration by the importer or his agent that the particu-
lars are truly stated. When filled in, they have to be presented
with the duty at: the Collector's office. Long Room, Custom House,
Thames Street, \i.C. 3. Upon payment of the duty they are for-
warded to the Examination Station, H.M. Customs and Excise, at
[Hounslow] Aerodrome, for examination and delivery of the goods.

CHAPTER VI

DAMAGE

The Various Kinds of Damage

The question of liability for damage may arise in
connection with flight in diflFerent ways. A pilot may
be injured in a crash, for instance, or a mechanic in
swinging the propeller, and a claim against the em-
ployer under the Workmen's Compensation Act,
or the corresponding law in foreign countries, may be
made. A passenger may have a claim for personal
injury against the proprietor under common law.
Cargo may be damaged, lost, delayed, or wrongly
delivered, and the responsibility of the proprietor of
the aircraft may be in question. The proprietor him-
self, again, may have a claim against the constructor of
the machine or the engine for faulty workmanship
which caused an accident. The term damage is a wide
one, but it is with the special question of *' Third
Party Damage," which is the most important and
difficult of all the questions connected with damage,
that the writer deals in this chapter.

The Difficulty of Legislating Internationally

It is a difficult question to legislate for in an inter-
national convention, for two reasons. First, it is a
question rather outside the sphere of International
Law, being one arising between the individual subjects
of two States, not between the Governments. Secondly,
it relates to something occurring on the ground^ and

CH. VI DAMAGE 75

however much States may be inclined to temper the
appHcation of their national laws to events happening
in the air, they w411 be less disposed to do so when it is
a question of damage to persons or property in actual
physical contact with their territory. It is neverthe-
less desirable that the municipal laws which govern
damage should follow the same broad principle and that
an international agreement should be reached as to the
general rule of law upon the subject.

The General Principle of Law as to Third Party
Damage

Under both British common law and the Continental
codes which derive from Roman law, the general prin-
ciple rules that a person who is doing w-hat he is law-
fully entitled to do is not responsible if, owing to acci-
dent and without any culpability on his part, he causes
injury to a third party. Unless the victim can prove
negligence or other fault in the person causing the
damage, he cannot claim reparation. This general
principle is modified by the proviso that the user or
possessor is liable, without the necessity of proof of
negligence, where the damage results from the use or
possession of an instrument or property which is in-
herently dangerous. In such cases it is as if the
culpability were shifted back in point of time ; the
initial keeping or use of w^hat was dangerous is regarded
as having been the basis of the liability, and no new
negligence or omission need be established.

The general principle has been illustrated in an
English law case {Holmes v. Mather) in which horses
were being driven along a road when they w^ere startled
by a dog and ran away, with the result that, despite all
the efforts of the driver, a passer-by was knocked dow^n
and injured. The jury held that there was no negli-
gence ; the driver was not responsible for the horses
being startled and did his best to prevent what was an
unavoidable accident. Consequently the plaintiff,

76 AIRCRAFT IN PEACE chap.

though entirely blameless and passive, was unable to
obtain redress. In another well-known case — Stanley
V. Pozvell — it was specifically held that, when negli-
gence is negatived, an action does not lie for injury
resulting from another's lawful act.

The Exceptions : Rylands v. Fletcher and Other
Cases

On the other hand, it was held in the famous case
of Rylands v. Fletcher that where a plaintiff's
property was flooded with water which broke out of a
reservoir, constructed by defendant on his own land,
and passed through an ancient mine shaft into plain-
tiff's mine, the plaintiff was entitled to recover damages.
The principle was laid down that the person who for his
own purposes brings on his lands and collects and keeps
there anything likely to do mischief if it escapes must
keep it at his peril. He can excuse himself by showing
that the escape was due to the plaintiff's default or to
vis major. Having brought the danger into existence,
the holder must be answerable for the natural and
anticipated consequences, and this principle applies
whether the dangerous thing be beasts or water or
filth or stench.

The same principle was maintained in the New
York case of Giiille v. Swann^^ in which a balloonist
who came down in another man's garden was held
liable as a trespasser not only for the damage by the
balloon itself, but also for the damage done by the
crowd of people who broke through into the garden
when the accident happened.

The French Law as to Damage

In the French courts a distinction is drawn be-
tween damage done by a person (Article 1382 of the

^ Jlazeltine, Law of the A ir, p. 86.

VI DAMAGE 77

Civil Code) and damage done by a thing (Article 1384).
*' The Court of Cassation and the Courts of Appeal,"
says Dr. Guibe,- " preserve the traditional principle
that the imputation of a fault is the sole creative cause
of responsibility. But they see in Article 1384 a legal
presumption of fault against the guardian of the inani-
mate thing causing the damage. The latter may rebut
this presumption and clear himself of responsibility
by showing that the act is due not to his fault but
exclusively to accident, to force majeure ^ or to the fault
of the victim."

French Judicial Interpretation of the Law in Aircraft

Cases

Article 1382 is far less favourable to the victim than
Article 1384. Under the former Article the victim
must establish the fault of the author of the damage ;
under the latter, it is for the author of the damage to
prove that he was not at fault. The French courts
have displayed a tendency to apply Article 1384,
wherever possible, to cases of flight accidents. In May,
191 1, the juge de paix of Cambrin decided that the
aviator Legrand was responsible for damages caused
to crops by his landing, through engine trouble, in a
cultivated field, and that this responsibility extended to
the damage caused by a crowd which was attracted to
the place. The judgment made specific reference to
the special danger which aviation involved both for
pilots and third parties, and stated that, " if aviation
constitutes a right for those who engage in it, it carries
to their charge particular risks of which they cannot
legally relieve themselves, their personal right being
clearly no justification for infringing the rights of
others." ^ Similarly, a balloonist, who came down
involuntarily in a narrow street, was held liable under

^ Essai sur la navigation adrienne, p. 85.

3 R.J.L.A , 1911, p- 267; 1912, p. 49. See also Leblanc, La
navigation adrienne au point de vue de droit civil, pp. 145-7.

78 AIRCRAFT IN PEACE chap.

French law for the damage done by the resulting
explosion of his balloon.*

The Plea of force majeure in Aircraft Damage Cases

Article 1384 shifts the burden of proof from the
shoulders of the victim to those of the author of the
damage, and the latter can clear himself by proving that
he acted under force majeure^ which was defined for
this purpose in the Legrand case as " the sudden
and unforeseen action of the forces of nature, such as a
thunderstorm or tempest which renders the machine
unmanageable." ^ Apparently a similar plea could be
successfully raised under English law in cases of the
Rylands v. Fletcher or the " dangerous animal " type.^
In any case, it would be unsatisfactory to rely upon the
English courts applying the Rylands v. Fletcher rule
to cases of aircraft damage and to trust to interpreta-
tion of the common law as it exists rather than to new
legislation. It might conceivably be held, for instance,
that the rule in Vaiighan v. Taff Vale Railway Company
applied to such cases, and that, if an aircraft were duly
certificated, the pilot duly licensed, and all reasonable
precautions taken to avoid accident, the owner or pilot
would be absolved from liability for unintentional
damage, on the same ground as the railway company
was absolved from liability for the accidental injury to
neighbouring property through the escape of sparks
from the engine in the case mentioned.

*to'

The Doctrine of Absolute Liability

It is manifestly inequitable that the entirely passive
victim of an aircraft accident should be denied redress
for injury done to him because the aviator, in turn, can
shift the responsibility to the broad back of nature, or
take shelter behind a Government licence. The one
plea and the other should equally be ruled out. It is

* R.J.L.A., 1912, p. 50. 5 R.jx.A., 191T, p. 269.

' Salmond, Law of Torts, 3rd ed., pp. 21 1-2 15.

VI DAMAGE 79

not enough to shift the burden of proof and to admit an
exception for force majeure. The doctrine of absolute
liability should be substituted, 2in<\ force majeure should
in no case be admitted as a justification.

The Theory of Fault and the Theory of Risk

The question was discussed by the Comite juridique
de VAmation on various occasions in 19 12 and 191 3,
and it was decided that the victim of aircraft damage
should have in all cases a clear right to reparation,
subject only to account being taken, in the judicial
proceedings, of any contributory fault upon the victim's
side. " Force ?najeure,'' said Professor Niemeyer,'^ " is
thus suppressed in the matter of aviation." *' The
* risk ' responsibility," said Professor de Lapradelle,^
*' has been substituted for the ' fault ' responsibility."

The theory of " risk " may be explained as the
theory that the person who puts a thing in circulation
and has the advantages of it must equitably bear any
disadvantages connected with it and any loss arising
from its use. " As the aviator has the pleasure and
advantages of aerial navigation, he should bear any
consequent losses, especially as he passes over private
property and carries this new danger to places which
until then were in entire security." ^ Ubi emolumen-
tum ibi onus is the principle of the theory of '* risk."

The Theory of Risk and the Development of Aviation

The Congress of Verona, in 1910, declined to accept
the " theory of risk " on the ground that it would
throw an undeserved liability upon aviation ; the Con-
gress held that, in accordance with the existing rule of
law (apart from the judicial interpretation of such an
article as 1384 of the French Civil Code), indemnity

' RJ.L.A., 1913, p. 136. 8 R.J.L.A., 1913, P- 71-

• Guib6, op. cit., p. 99. See also Leblanc, op. cit., p. 118 ff.,

p. 152. The " theory of risk " apphes to civil liabiUty only ; there

can be no criminal liability uitlioiit proved fault.

8o AIRCRAFT IN PEACE chap.

should be recognised as due only in case of subjective
liability, i.e.^ of fault on the aviator's part.^®
Later opinion is disinclined to agree with this view.
Flight will probably not suffer, but will rather gain
in the end, from the acceptance of the doctrine of
absolute liability. The individual aviator or aircraft
proprietor, like the individual motorist, will cover his
liability by insurance and will not feel appreciably the
burden which will thus be imposed upon him.

Absolute Liability the only Equitable Rule

It is much to be desired that the absolute liability of
aircraft owners for Third Party Damage should be
definitely recognised by legislative provision in the
different States. The draft " Law on Aerial Naviga-
tion " which was presented to the French Chamber of
Deputies under date of 7 May, 1913, in the name of
the President and the Ministers concerned, contained a
very explicit provision on the subject. Article 4
ran as follows :

" All damage caused to persons and goods on the
ground by an aircraft or by persons therein, must
be made good as a civil obligation by its author, if
necessary, and by the proprietor of the aircraft,
jointly responsible, without the victim of the dam-
age having to prove anything beyond the fact of this
damage. Provided that, if the victim is at fault, the
author of the damage and the proprietor of the
aircraft may be relieved in whole or part, in pro-
portion to such fault, of the reparation for which
they are responsible."^^

The Aerial Navigation Bill which was prepared (but
not finally revised) by the British Home Office in
19 10- 1 1 contained the following provision :

Clause 12. — (i) " The flight of an aircraft over
any land in the British Isles shall not in itself be

10 R.J.L.A., 1910, p. 182. 11 R.J.L.A., 1913, p. 181.

VI DAMAGE 8 1

deemed to be trespass, but nothing in this provi-
sion shall affect the rights and remedies of any
person in respect of any injury to property or
persons caused by an aircraft, or by any person
carried therein, and any injury caused by the
assembly of persons upon the landing of an air-
craft shall be deemed to be the natural and pro-
bable consequence of such landing."

The View of the Civil Aerial Transport Sub-committee

This clause, it will be observed, is far less explicit
than the corresponding clause in the French Bill and
fails to provide — if it ever intended to do so — for the
absolute liability of the aircraft owner. The Special
Committee No. i of the Aerial Transport Committee
recommended (January, 191 8) that the Bill should
include a specific provision " that the obligation on the
aviator in an action for trespass should be absolute,
negligence not being a necessary element in his liability
and ' unavoidable accident ' no defence." This
absolute liability would arise in the case of " material
damage to person or property, whether caused by
flight, ascent, or landing, or the fall of objects from air-
craft," and would extend to " injury caused by the
assembly of persons on the landing or ascent of air-
craft elsewhere than at authorised aerodromes or
landing places." (Presumably it would extend also to
damage by a crowd attracted by the fall of something
from an aircraft in flight ; but the Committee do not
mention this point.)

The American View, and the Practical Arguments for it

Such a provision would be a great advance upon the
Massachusetts Law of 13 May, 191 3, which made an
aviator " responsible for damages resulting from his
flight, unless he can prove that he took all reasonable

82 AIRCRAFT IN PEACE chap.

precautions to prevent such damage " (Article 6).^-
The draft Bill proposed by the American Bar Associa-
tion in 1 910 went much further than this towards
admitting the principle of unconditional liability, and
the case for admitting that principle has been strongly
urged in America by such an authority as Governor
Baldwin.^^ It is not only supported by reasons of
right and equity, but there are for admitting it two
practical arguments which should appeal to states-
men. In the first place, the liability will, in practice,
be met by insurance, and it is a much more practicable
proposition to place the duty of insuring upon the
limited body of aircraft owners than upon the popula-
tion at large. In the second place, it rests with air-
craft owners to increase the factor of safety in flight,
and they will be the more inclined to secure the safety
of their machines if liability for accidents is declared
their responsibility without any conditions.

The Enforcement of the Right to Indemnification

To make aircraft owners legally liable for all damage
is one thing ; it is quite another to ensure that the
victim does in practice receive indemnification, espe-
cially where the damage is done by an alien machine.
Various methods for facilitating the recovery of damages
have been suggested. M. Hennequin proposed in
191 2 that actions for damages should be allowed to be
taken before the courts of the State in which the
damage was done and should be governed by that
State's laws, to the exclusion of the courts and the
laws of the country of the aircraft's nationality where
the latter differed. He also proposed that in such a
case the Government of the aircraft's nationality should
recognise and secure execution of the judgments of the
courts of the country where the damage was done.^*

12 R.J.L.A., 1913, p. 217. ^3 Hazeltine, op. cit., p. 86.

1^ R.J.L.A., 1912, pp. 216-17.

VI DAMAGE 83

The Proposal of the Comite juridique

The Comite directeur took account of M. Henne-
quin's proposals to the extent that it made actions for
damages to persons or property justiciable either by
the courts and under the laws of the State of the air-
craft's nationality or those of the State in which the
damage was done.^^ The Congress of the Comite y
however, decided (Geneva, May, 19 12) that the law
of the State in which the damage occurred should alone
apply, but that the action for recovery could be taken
either before that State's tribunals or before those of
the State whose nationality the aircraft possessed. ^^

The Proposal of Professor Hans Sperl

It is doubtful whether the solution thus proposed
of what is an undoubted difficulty would prove accept-
able to Governments. The rule of private inter-
national law is that the action for a tort must be brought
before the courts of the country in which the defen-
dant is present. To meet this difficulty, Professor
Sperl of Vienna has made an ingenious proposal which
would transfer the defendant, as it were, to the jurisdic-
tion of the country in which the damage occurred .^'^

Professor Sperl's proposal must be given in his own
words in order to be fully understood :

*' No aircraft will be allowed to make an ascent until
it has been registered, and the formality of registration
will be linked with the obligation of the proprietor to
enroll himself as a member of an Aeronautical Society.
All the societies will levy subscriptions ; there will thus
be established, in each State, funds of indemnity and
insurance. They will enter into relations with one
another and will apportion the charges for damages

^* R.J.L.A., 1912, p. 234.
" R.J.L.A., igi2, p. 274 ; 1913. P- 330-

^' Sperl, La navigation adrienne au point de vuc juridique, R.D.I.,
1911, pp. 490-1.

G 2

84 AIRCRAFT IN PEACE chap.

among all the associations, in one central office for the
world. Each individual branch will be, in a way, the
' cashier's office ' and legal representative of the central
office. The question of the aeronaut's culpability
will be absolutely immaterial in relation to the victim's
claim and the civil procedure necessary. It will be
sufficient to prove that the damage has been caused
by some act connected with an aeronaut's flight. The
proof of culpability, so difficult and often laborious
{pe'nible), will no longer be necessary. The culpability
of the aeronaut will eventually be taken into account
only as a domestic matter arising between the aeronaut
and the society of which he is a member and only in so
far as the society, in order to pay the indemnity, may
make a recovery from its member. ... As to the
victim of the damage, besides being relieved of the
difficult task of proving the aeronaut's culpability, he
would no longer have the trouble — often unavailing —
of ascertaining the persons responsible, of following
them beyond the frontier, and of suing them before
a foreign judge, under strange rules of law ; nor would
he have to face the considerable difficulties and the
small chances of success involved in obtaining execu-
tion of a favourable judgment after he has obtained it.
Our regulation disposes of all these difficulties at a
stroke. The individual entitled to an indemnity need
not even know the name [sic] and nationality of the
aircraft which caused the damage. He could simply
present his claim to the local society's office, and the
only proof he would have to furnish would be evidence,
sufficient to convince the judge, that the damage was
solely due to an aircraft. The Aeronautical Associa-
tion of the country, having paid the indemnity for the
damage (the amount of which would have been neces-
sarily established before the tribunals), would itself
ascertain the name [sic] of the culpable aircraft and
the names of the passengers and of the owner, and would
reimburse itself by claiming in turn upon the office
in the aeronaut's country or upon the central inter-

VI DAMAGE 85

national office. The jurisdiction competent to deal with
the demand for indemnity presented to the society's
office would be that of the place of damage. Associa-
tions should be declared responsible as principals for
damages. In view of the undoubted solvency of these
associations, it would be possible to do what has not
been found practicable in the case of automobiles and
to dispense with a right of lien on and seizure of the
aircraft to ensure payment of damages." ^^

A Possible Variant of the Sperl Proposal

Professor Sperl's proposal would involve an inter-
national agreement as well as the changes in internal
laws necessary to legalise the recovery from the various
local societies and to establish clearly the facts in each
case. It may be observed that, even without any
official international understanding or any change in the
various States' laws, it would be possible for the
aeronautical associationsjto institute a system on the lines
of Professor Sperl's proposal, so far as their members
were concerned. Legal liability and the niceties of
judicial procedure could be waived ; the associa-
tions could come to a working agreement to pay at
once, on satisfactory proof, for all damage done by air-
craft and to pool the expenses. They could charge
their members such additional subscription as would

^* Article 40 of the draft French Act of 191 3 provided that if an
aircraft, or persons carried in it, were charged with a breach of
French law or with damages caused in French territory, and if the
proprietor were not domiciled in France, it could be detained until
the court permitted it to leave. The proprietor or pilot could,
however, obtain its release by undertaking to pay any fine or damages
that might be awarded. (R.J.L.A., 1913, p. 185.) Under English
law a foreign ship may be detained for any injury to property
caused by her in any part of the world, upon proof to the Court
ordering the detention that the injury was probably caused by the
misconduct or want of skill of the master or officei's of the ship ;
the vessel will be releascfl upon security being given. There is also
power of detention in cases of personal injury caused on, in, or
about any ship in any port or harbour of the United Kingdom.
(Maclachlan on Shipping, loii, pp. 332-3.)

86 AIRCRAFT IN PEACE chap.

cover the added liability. If — as would be quite
practicable — the several States were to make registra-
tion of a machine dependent upon an owner's being a
member of a recognised aeronautical society, the pur-
pose of Professor Sperl's scheme would be achieved,
with the sole important difference that the payments
would be made de gratia. The aeronautical societies
might well adopt a generous policy of this kind in view
of its propaganda effect and the resulting benefits to
aviation generally.

Another Possible Solution

Another possible solution of the difficulty of adj ust-
ing damage claims may be illustrated by the following
practical example :

Suppose a French machine flying from Paris to
Kenley had a forced landing in Surrey and damaged
a private owner's fence and fruit trees. The owner of
the fence and orchard would, if possible, obtain par-
ticulars of the identity of the aircraft and its pilot on
the spot ; in any case he could always ascertain the
nationality mark and registration number. He would
submit a claim to the Air Ministry or whatever Govern-
ment Department was charged with the duty of
receiving such claims. The Air Ministry would
investigate the facts ; perhaps something in the nature
of the " Court of Inquiry " which is held in all cases
of damage by R.A.F. machines would be held. Having
verified the genuineness of the claim, the Air Ministry
would refer it to the corresponding Department of
the French Government. The latter would presum-
ably accept the British Department's statement of
claim as sufficient warrant for an immediate payment
of the amount ; perhaps a corroboration by the owner
of the French aircraft might be thought necessary.
In any case, the French Department would, either at
once or in a brief delay, accept the British Department's
claim and make the necessary financial adjustment.

VI DAMAGE 87

Acceptance of the Doctri?ie of Absolute Liability
essential to its Success

Such a payment is clearly not one which should
be borne by public funds ; how would the recovery
be made from the aircraft owners concerned ? Usually
the latter would be insured against Third Party damage,
and — to reverse the example above — when the British
Air Ministry received from France a claim for damage
done by a British machine to French property, the
Ministr}^ would call upon the owner or his representa-
tive to repay the amount of the claim. If recovery is
not to be a matter of litigation in almost all cases,
it is clearly necessary that the principle of " absolute
liability " should be admitted in the internal legislation
of each country as a condition precedent to the institu-
tion of such a scheme. There is a strong probability
that in any case steps will be taken to make legislative
provision for the acceptance of that principle in view
of its intrinsic justice. The aircraft owner will then
be disposed to make the refund demanded unless there
is a good case for disputing liability on the ground
of contributory fault on the part of the property-owner.
In practice, however, the insurance company with
whom the aircraft ow^ner is insured will pay the amount,
on his behalf, to the Air Ministry, and it is the insur-
ance company rather than the owner who will decide
whether any claim should be opposed. The experience
of damage claims in connection with automobilism,
and of insurance claims generally, gives reason for
believing that there will be very little tendency to
dispute claims if they are properly authenticated and
reasonably assessed.^^ The Air Ministry would always

^' In the event of the Third Party Risks proving to be too heavy
for Lloyd's Insurance Association to undertake, the excess might
be met, it has been suggested, by a levy of 6d. or is. a flight upon
all aircraft owners or companies, to form an Indemnity Fund under
the control of the Air Ministry. This Fund would be operated
upon to cover all liabilities above a certain amount . (Suggestion
of Lt.-Col. T. W. C. Carthew, D.S.O., R.A.F , in llw Aeroplane,
9 April, 1919.)

88 AIRCRAFT IN PEACE ch. vt

be in a position to bring pressure to bear upon an
aircraft owner by suspending registration or certifi-
cation of the machine.

The Assessment of the Damage

The main difficuhy would be the assessment.
Possibly some special Commission such as the Defence
of the Realm Losses Commission, which dealt with
all claims in respect of the taking of property in the
United Kingdom under the Defence of the Realm
Regulations, 19 14, and later, might be found neces-
sary ; and corresponding tribunals in other countries.
In the United Kingdom cases could be reported upon
in the first instance by the expert valuers of the Lands
Branch of the War Ofiice, Air Ministry, and Ministry
of Munitions, as was the practice in all Defence of the
Realm occupation of property during the war.

CHAPTER VII

COLLISIONS AND WRECKS

Air Collision and International Regulation

Legislation and regulation, international or national,
are doubly concerned with air collision, for they may
look either to (i) the prevention of the collision,
(2) the legal adjustment of the situation of the parties
concerned, vis-d-vis the State and one another, after
a collision has occurred. Provisions of the former
kind, i.e. those which seek to prevent collisions, are
at once more important and present less difficulty than
those which deal with the legal points raised by an
actual collision.

The Rules of the Syndicat General, 19 10

When the Syndicat General de I'Aviation was
drawing up its draft international code in 1910, it
confessed itself unable to lay down any precise rules
as to the manoeuvring of flying machines.^ " One
could not, for instance," said the report, " prescribe
that a flying machine should go behind or pass at so
many metres to the right or left or above or below
another." Only broad and general rules could be
laid down, of which three examples were given, namely,
(i) that machines meeting face to face should each
take the right (" or the left, if it was so agreed inter-
nationally "), (2) that a machine overtaking another
should pass on the latter's right (" or left "), (3) that

^ R.J.L.A./iQio, p. 159.

8o

90 AIRCRAFT IN PEACE chap.

when two machines were flying towards the same
point of contact, each should describe a semicircle
round that imagined point before resuming its original
direction. Sirens, said the report, were inaudible
owing to the noise of engines ; audible signals were
as yet impossible ; aerial routes could not be laid
down.

The Rules drawn up at the Paris Conference, 1910

It is amusing to compare this almost character-
istically official refusal to face the difficulties with the
bold and businesslike proposals of the official Con-
ference of Paris of the same year.^ The draft Con-
vention contained (in Article 30) a provision that the
aircraft of the contracting States should observe the
** Rules relating to Aerial Traffic " given in Annex C
to the Convention. This Annex contained four
sections prescribing respectively (i) Regulations re-
specting Lights, (2) Audible Signals (signaux pho-
niques), (3) Rules of the Road, (4) Landing and Distress
Signals. Technical improvements since 19 10 have
necessitated the revision of some of the rules then
laid down, but on the whole they stand unchanged
in substance to-day.

A white light ahead, a red light on the left or port
side, a green light on the right or starboard ; the head
light visible over a horizontal arc of 220 degrees, the
others over an arc of no degrees from right ahead ;
the green and red lights so screened as not to be visible
from port and starboard respectively : these were the
rules laid down regarding lights for airships and,
in principle, for flying machines. But, " as a temporary
concession," flying machines were permitted to use
a single lamp or beacon, throwing a green light to the
right and a red to the left.

During fog, mist, snow, or heavy rains, airships,
and flying machines " so far as is practicable," were

* Reports of Civil Aerial Transport Committee, 1918, pp. 32-5.

VII COLLISIONS AND WRECKS 91

bound to make use of '' powerful, discontinuous,
audible signals."

The rules of the road specified in Annex C obliged
aircraft to keep at a distance of at least 100 metres
from one another ; motor-driven aircraft to make way
for free balloons (compare Article 20 of the Maritime
International Collision Regulations, which obliges
steamships to make way for sailing ships) ; motor-
driven aircraft meeting " head on " to keep to the
right (as at sea, in the case of ships) ; of two motor-
driven aircraft flying on a line which crosses, the one
which sees the other on its right to give way to the other ;
a motor-driven aircraft overtaking another — and it is
a case of overtaking if the position of the second one
is such that it could not see the first one's side-lights
by night — to keep out of the other's way ; and, where
no rules are laid down or where collision is imminent,
each or both of the aircraft to manceuvre vertically
as well as horizontally and — this is the sense if not
the words — to " do the best they can."

The Rules issued with the Decrets 0/1911-1913

Very much the same rules appear in the Reglement
annexed to the French Decret of 21 November, 191 1.^
Article 10 of this Reglement definitely lays down that
when two motor-driven aircraft meet " head on "
{ont le cap Viin sur Vautre) or nearly '* head on," so
as to make a collision probable, each should turn to
the right of its line of flight so as to leave the other
machine on its left. Yet in the later Reglement which
was issued with the Decret of 17 December, 1913,
it was stated (Article 11), " If the aeroplanes follow
opposite or almost opposite directions each must in-
cline to the left " (obliquer a gauche).^ This was the
only important difference between the earlier and
later Reglements (though it may be mentioned that
while the rules of November, 19 11, instructed motor-

•' J^.J.L.A., 191 1, pp. 309-3H. •• R.J.L.A., Kji], p. 19.

92 AIRCRAFT IN PEACE ch.\p.

driven aircraft to keep out of the way of free balloons,
the rules of December, 191 3, supplemented this in-
struction by making aeroplanes give way to dirigibles) ;
and it is the more surprising because the Regulations
of the F.A.I., drawn up in the interval (May, 191 2),
had provided (Article 14)'^ that *' Every motor-driven
aircraft approaching another in any direction must
always keep to the right, unless it is and remains at
a distance of at least 300 metres."^

The Rules of the Convention 0/ 1919 : (i) Lights

The " Rules as to Lights and Signals " and *' Rules of
the Air " which have been approved, in Annex
D of the International Convention,'^ do not differ
greatly from the rules followed in practice and already
laid down. They provide for a rear light — a white
one, shining backwards — as well as the normal white
head light (visible at five miles' distance) and the red
and green port and starboard lights (visible three
miles). They also prescribe the lights which air-
craft in the water shall display.

(ii) Landing and Distress Signals

The new regulations provide for the firing of a
green Very's light or the flashing of a green lamp as
the signal to be made by an aircraft wishing to land,
or the ground-signal that landing is clear. The
earlier rules had prescribed a red triangular flag by
day, or a white light by night, as the proper signal
for an airship about to land. (No signal for aeroplanes
intending to land was laid down in the earlier rules.)
The distress signals prescribed are wireless calls,

^ R.J.L.A., 1912, p. 307.

* The Massachusetts Law of 15 May, 191 3, provided (Art. 5)
for aeroplanes meeting head on, each changing its direction towards
the right — a rule which is followed both on land and sea in the
United States. (R.J.L.A., 1913, p. 216.)

^ See Appendix I, Annex D.

VII COLLISIONS AND WRECKS 93

flag signals, a continuous sounding, or a succession of
Very's lights.^

(iii) Rules of the Road

The "Rules of the Air " laid down in the British
Air Navigation Regulations and in Annex D of the
International Convention are especially clear and
" common-sense." 9 In substance they depart but
little from the old rules, but they seek to make the
latter " fool-proof.' They provide, for instance, not
only (as the earlier rules do) that an overtaking air-
craft shall always keep out of the way of the overtaken
aircraft, but that '* as by day the overtaking aircraft
cannot always know with certainty whether it is
forward or abaft the direction mentioned above [i.e.,
whether it is coming up with the other aircraft from
any direction more than no degrees from ahead of
the latter], it should, if in doubt, assume that it
is an overtaking aircraft and keep out of the way."
(Article 28.)

The maritime rule which obliges ships in narrow
waterways such as Queenstown Harbour or Falmouth
Harbour to keep to the starboard side of the channel

^ The rules for R.A.F. aircraft are at present as follows : —

Signals for Aircraft in Distress.

When an}' aircraft is in distress and requires assistance, the
following shall be the signals displayed by her, either together or
separately : —

I. The international signal " S.O.S." by means of visual or
wireless telegraphy.

II. The international code signal of distress indicated by N.C.

III. The distant signal consisting of a square flag having above
or below it a ball or anything resembling a ball.

IV. A continuous sounding with any sound apparatus.

V. A signal consisting of a succession of white Very's lights,
fired at short intervals.

The above signals are subject to such modification as shall be
published from time to time.

* The Rules of the Air given in Schedule VII of the British Air
Navigation Regulations, 1919, are not reproduced here, being
identical in substance with those given in Annex D of the Inter-
national Convention, as to which see Appendix I of this book.

94 AIRCRAFT IN PEACE chap.

is echoed in an Article (No. 31) prescribing that : "In
following an officially recognised air route every air-
craft, when it is safe and practicable, shall keep to the
right side of such route."

(iv) Rules for Taking Off and Alighting

Very clear instructions are also given as to the
method of taking off from or alighting at recognised
aerodromes by day or night, the system of marking
and lighting of the ground being carefully described.
It is also provided (as in the rules annexed to the
French Decrets of 191 1 and 19 13 and those of the
F.A.I.) that no ballast except fine sand or water shall
be dropped from aircraft in flight. (Article 35.)

The Enforcement of Flying Regulations

How will flying regulations be enforced } They
will probably come under a double " sanction." If
the contracting States agree ^^ to punish all infractions
of them committed by (i) their own aircraft anywhere,
(2) foreign aircraft within the jurisdiction, and this
international undertaking is implemented by the neces-
sary internal legislation in each country, an effective
safeguard for the observance of the rules will be
provided. If the machine which has broken the
rules lands, it can be dealt with by the subjacent State.
If, on the other hand, after causing another machine
to crash through some flagrant disregard of the rules
of the road, it flies away without landing (escaping,
be it supposed, the local aerial police), the State whose
machine is injured v/ould be entitled in virtue of the
international agreement to make representations to
the guilty aircraft's State with a view to proceedings
being taken by that State against the pilot. Such
proceedings would be quite independent of any civil

^° Such an agreement has been concluded — see Article 26 of the
International Convention, 19 19.

VII COLLISIONS AND WRECKS 95

action for damages taken by the injured aircraft's
owner against the owner or pilot of the offending
aircraft.

The Jurisdiction and Law to be Applied

In the case just instanced no actual collision would
have occurred, but there may conceivably be cases in
which there is either collision, with resulting damage
to either or both of the machines and their crews and
cargo, or, without actually colliding, the machines
may both be obliged to make forced landings which
damage them. In such cases some interesting legal
questions arise, namely, (i) what State's courts should
deal with the question of legal responsibility as between
the two machines, (2) what State's law should those
courts apply, and — because the whole question of
aerial collisions is in a vague and fluid state and national
legislation on the subject has to be created — (3) what
should the principles of that law be ?

The Proposals of MM. Fauchille and Von Bar

Where the colliding aircraft are flying over the terri-
tory of a State of which they both possess the nationality,
no difficulty arises, nor is any question possible where
two aircraft of the same nationality are in collision
over the high seas or unappropriated territory. But
where the machines are of different nationality, or
where, though of the same nationality, they come in
collision over foreign territory, the answer is less easy.
M. Fauchille proposed in 19 10 that where the aircraft
were of the same nationality, the tribunals and laws
competent to assess and regulate responsibility should
be those of "the State of the flag " ; where the machines
were of different nationality, the same rules as in the
case of collision at sea should be followed in deciding
which State's laws should apply. ^^ Professor Von Bar,
on the other hand, proposed simply to say : *' In case

" Annuaire de I'Instiiut de Droit International, 1910, p. 108.

96 AIRCRAFT IN PEACE chap.

of collision, the rules of law concerning collision at
sea will apply." ^^

The View of Dr. Guibe

Dr. Guibe takes a different view.^^ He holds that
the laws of the subjacent State should apply, and that
the same State's courts should have jurisdiction, in all
cases of collision over its territory. Collision, he
argues, is an occurrence of a nature to affect the
subjacent State, and its civil consequences should be
dealt with by that State's laws and tribunals.^* The
difficulty is that, unless the faulty aircraft lands,
which it may not do, the laws and courts of the State
in question may be powerless in the matter. The
owner and the pilot of the culpable aircraft may be
beyond the reach of its jurisdiction. If any redress is
to be obtained by the victim in such a case, there appears
to be no practical course but to sue in the courts of the
country where the owner or pilot of the other machine
is domiciled ; and those courts will almost certainly
apply the national laws. They v/ill, no doubt, take
account, as the English courts do, of the question
whether the tort complained of was in fact an unlawful
act in the country where it arose, but they will hardly
decide it according to that State's laws.

The Dual Aspect of an Avoidable Collision

A collision which is due to faulty airmanship on
one side is actionable at once as a tort and as a con-

^2 Annuaire, 1910, p. 46.

^^ Essai sur la navigation aerienne, pp. 239—240.

^* M. E. D'Hooghe {Droit aerien, p. 1 11), in discussing the question
of civil or criminal responsibility for collisions between aircraft
of different nationalities, states : " This question carries us back to
the question, already decided by jurisprudence, of a crime or delict
committed across a frontier, the author of the deed being in one
State and the victim in another. In such a case, jurisprudence
considers the country where the author of the deed is as the State
whose law should be applied and whose tribunals should, in general,

competent."

VII COLLISIONS AND WRECKS 97

travention of flying regulations. For the latter, as
has been explained above, the pilot or owner can
be punished either in the country whose nationality
the aircraft possesses or in that in which the breach of
regulations was committed. The tort, again, would
be actionable in the country of the owner's or pilot's
domicile, and also, if the collision resulted in damage
to persons or property in the subjacent State, in the
latter State's courts as well. Where the collision took
place over the high seas, there being no law of the
locus quo. Dr. Guibe admits that the law of the defen-
dant's State should apply .^^ But what is the law of
that State, or of any State, on the subject of air
collisions ? At present there is none. The law is yet
to be made.

The Need for Constructive Legislation

It may, of course, happen that some such arrange-
ment for mutual insurance by States of aircraft
damage of all kinds as is discussed in Chapter VI (see
pp. 86-8, supra) will be adopted as a practical solution
of the difficulty of jurisdiction. Such an arrangement
could cover the case of collision in the air as well as
ground damage. There remains, however, the question
of the law which will in fact be applied to collision
cases, and since the various internal legislatures and
courts have as yet had no occasion to build up a corpus
of laws to govern the settlement of such cases, the
foundations remain to be laid and the principles which
the national legislatures should follow are still to be
fixed. It is obviously desirable that, in dealing with
such an essentially international activity as aviation
and in creating the new rules which are to govern its
legal consequences in civil actions, the various legis-
latures and courts should seek as far as possible to
follow the same broad guiding principles.

"' Guibe, op. cit., p. 240.

9S AIRCRAFT IN PEACE chap.

British Law as to Maritime Collision

It would be well, for instance, if there were agreement
as to the allocation of responsibility in each of the four
main categories of possible collision cases. The
principles which the English Court of Admiralty
follow were thus laid down a hundred years ago by
Lord Stowell in regard to maritime collisions : ^^

" There are four possibilities under which a
loss of this sort may occur :

" I St. It may happen without blame being
imputed to either party ; as where a loss is
occasioned by a storm, or by any other vis major ;
in that case the misfortune must be borne by the
party on whom it happens to light ; the other not
being responsible in any degree.

" 2ndly. A misfortune of this kind may arise
when both parties are to blame, where there has
been a want of skill and due diligence on both
sides ; in such a case, the rule of law is, that the
loss must be apportioned between them, as having
been occasioned by the fault of both.

" 3rdly. It may happen by the misconduct of
the suffering party alone ; and then the rule is,
that the sufferer must bear his own burthen.

" 4thly. It may have been the fault of the ship
which ran the other down ; and in this case, the
injured party would be entitled to an entire
compensation from the other."

The second rule above was confirmed by the Supreme
Court of Judicature Act, 1873, which provides, in
effect, that, where both vessels are to blame for the
collision, the vessel sustaining the heavier loss receives
judgment for one half her own loss less one half the
loss sustained by the other .^"^ This rule now applies

1* Maclachlan on Shipping, 1911, pp. 337-9.
1^ Under the Maritime Conventions Act, 191 1, the old rule given
in T.ord Stowell's second paragraph is now, however, replaced by

VII COLLISIONS AND WRECKS 99

only where the respective degrees of fault cannot be
ascertained. Where they can, each vessel bears a share
of the loss proportionate to its degree of fault. The
maritime collision law differs from common law in
allowing the victim to recover damages even if he is
partly to blame. Under common law, where both
parties are at fault, neither can recover anything,
contributoiy negligence being a bar to the victim's
claim. The maritime rule, it should be added, applies
to claims in respect of loss of cargo as well as of the
vessel itself. It does not, however, apply to cases of
loss of life or personal injury ; in these cases the ship-
owners' liability is "joint and several" and each of
the vessels (where both were at fault) is liable for the
whole loss.^^ The vessel mulcted, however, has a
right to contribution, in proportion to the degree of
fault, from the other .^^

French Law as to Maritime Collision

The French law as to responsibility in maritime
collision differs slightly from the English. It provides

the newer and fairer one that, where two ships are at fault, the
loss caused by a collision will be apportioned in accordance with
the degree of fault attributed to each vessel by the Court, instead
of being equally divided. This change was the result of the Brussels
Convention on'ColHsions of 23 September, 1910. If it is not possible
to establish different degrees of fault, the liability is to be appor-
tioned equally, so that, in practice, the old rule may largely still
hold. Under the Act, the owner of cargo laden on board one of
two delinquent vessels is only entitled to recover so much of his
loss as is proportionate to the degree of fault of the vessel in which
it was laden. Where there is loss of life or personal injury as the
result of the two vessels' fault, the liability of the owners is joint
and several and either can be sued in full, but the owner from whom
damages are recovered has a right to contribution from the other
owner in proportion to the degrees of fault. (Roscoe and Robertson,
The Maritime Conventions Act, 19 11.)

18 Under the Merchant Shipping Acts the liability of the owners
of a ship, British or foreign, is limited to £1^ per ton of the ship's
tonnage in respect of loss of life or personal damage and to ;^8 per
ton in respect of loss or damage to " ship's goods, merchandise or
other things." Such a limitation is obviously inapplicable to damage
by aircraft.

i» Salmond, Law of Torts, 3rd cd., pp. 46-7.

11 2

loo AIRCRAFT IN PEACE chap.

that (i) if one vessel only is at fault, it bears the whole
loss ; (2) if both vessels are at fault, the tribunals divide
the loss according to the gravity of the fault ; (3) if the
collision is due to force majeure, e.g. fog or storm,
each ship bears it own loss ; (4) if there is uncertainty
as to the circumstances of the collision, the whole
damage is equally shared.-^ The last provision is
universally criticised. It would be a peculiarly in-
equitable rule to apply to aerial collisions. The
circumstances of such collisions v/ould often be ob-
scure, and it would be clearly unfair to make the
small, privately-owned aeroplane pay half the loss of
the great transatlantic multi-engined seaplane or
flying-boat or the lumbering tramp airship, stuffed
with Birmingham goods, on the Uganda run, when no
evidence of fault was forthcoming. The only fair
rule, where the cause of a collision is unknown, is to
let the loss lie where it falls. Where both aircraft are
to blame, in uncertain degrees, the loss can fairly be
shared.

V/recks (epaves) : M. Faiichille's Proposals

Akin to the question of collisions is that of wrecks.
When an aircraft crashes on foreign territory and its
owner does not take steps to salve it, what is the posi-
tion legally of the ovrner, the finder or landov/ner on
whose ground it falls, and the State of the locus quo ?
M. Fauchille proposed the following rule in his draft
code : ^^

'' Art. 27. Anyone finding a wrecked aircraft
on land or sea must notify it to the municipal
authorities of the nearest locality or of the first
port at which he calls, within twenty-four hours of
finding it or reaching port. If the wreck can be
identified it will be restored to its owner, who will
repay the salvor his expenses and pay him a

20 Guibe, op. cit., pp. 130-1.

21 Annuaire de I'lnsiitut de Droit International, 191 1, p. m.

VII COLLISIONS AND WRECKS loi

remuneration of 5 per cent, of the value of the
wreck. Otherwise (an cas contraire) it will remain
in the authorities' hands ; the internal legislation
of each country will fix the time within which the
owner will be allowed to reclaim it."

The Discussion of Wrecks at the Comite juridique

A similar provision (Art. 32) is to be found in the
draft Convention agreed to at Paris in 19 10, except
that the abandonment of the wreck by the owner is
provided for as an alternative to his reclaiming it.
The rules approved by the Comite juridique de
V Aviation went into more detail. They provided that
the owner could claim the wreck within a year and a
day, and they allowed a remuneration of 10 per cent.,
instead of 5 per cent., of the value of the epave (wTcck)
to the salvor.2- Tht Comite considered and rejected
a proposal that if the wreck was not claimed within the
prescribed time it should be sold and the proceeds
devoted to paying expenses and the salvor's premium,
any balance going to the State. Such a provision was
thought by the Comite to trench upon internal legis-
lation. It was indeed urged that the whole question
was one for the various legislatures to settle, but
Professor de Lapradelle pointed out that there existed,
in fact, no national legislation upon aerial derelicts or
wrecks, which had not been contemplated in any of
the codes. In France, he observed,-^ there was one
"legislative theory" as to maritime derelicts, another
as to river derelicts, another as to land derelicts. An
aerial derelict was something new, something sui
generis, quite different from the purse v/hich one finds
in the highway, and a special legislative provision,
which an international agreement could guide and in-
spire, was urgently needed in the various countries.

22 R.J.L.A., 1912, p. 170 ; 1913, pp. 329-330.
" R.J.L.A., 1912, p. 161. See also Lcblanc, La navigation
a4rienne au point de vue du droit civil, pp. 9G-104, as to epaves.

102 AIRCRAFT IN PEACE chap.

The Terms Proposed and Agreed at Paris, 191Q

The Convention signed at the Conference of 1919.
contained merely a provision (in Article 24) that
for the purpose of salvage of aircraft wrecked at
sea the regulations of the different contracting States
as to the salvage of ships should apply, " so far as
practicable." The question is therefore abandoned,
by the international code, to the various national
legislatures.

Pre-war Legislative Proposals as to Aerial Wrecks

So far as French legislation is concerned, no attempt
has been made to grapple with the question. The
two Decrets of November, 191 1, and December, 1913,
merely instruct the finder of a wreck to notify it to the
authorities. The draft French law of 1913 reproduces
(in Article 19) the provision of the Decrets. The
draft British law of 1910-11 was more helpful. It
provided (paragraph 13) -'* for notification of a wrecked
aircraft and also for a payment by the owner — unless
he abandoned his right to the aircraft — to the persons
who assisted in the salvage of their expenses and
5 per cent, of the value of the aircraft as salved, the
expenses of the owner for salvage being deducted from
the latter amount. It contained further a novel pro-
vision that if the owner abandoned his right to the
aircraft, it should be sold or otherwise dealt with for
the benefit of the salvors.-^

The Disposal of Maritime Derelict and Wreck

The last rule marks a departure from maritime law.
Under British law, in the absence of an established

2* Reports of Civil Aerial Transport Committee, 1918, p. 38.

25 The Regulations proposed by the Syndicat General de I'Avia-
tion in 1910 provided that, after a year and a day, an unclaimed
aircraft ^vreck should belong to the State and to the finder in equal
proportions. (R.J.L.A., 1910, p. 160.)

VII COLLISIONS AND WRECKS 103

claim to ownership, derelict on the seas is the property
of the Crown ; the salvor is entitled only to a reward,
or salvage, which was at one time usually from one-
third to one-half of the value of the property aban-
doned and recovered, but is now at the discretion of
the court.^^ The " value " is, for the purpose of the
award of salvage, the value at the time and place where
the salvage services had terminated by bringing the
vessel into safety.^' When " derelict " becomes
" wreck of the sea " by being cast by the sea upon the
land, it is also the property of the Crown, except in
cases in which some " admiral, vice-admiral, lord of
the manor, heritable proprietor duly infeft " or other
person is able to establish a title to unclaimed wreck
found upon his property. If no claim to ownership
is established within a year, the wreck is sold by the
receiver of wrecks, and the proceeds, less all expenses
and fees, paid over either to the admiral {et alii),
whose title has been proved, or to the Crown. -^ A
consul-general, it should be added, is entitled to act
on behalf of the owner of a foreign ship in regard to
salvage claims.

The Disposal of Aerial Wreck

The value of wrecked aircraft is unlikely ever to be
comparable to that of wrecked ships, and it is ques-
tionable whether the salvor, who will often be the
tenant or landlord of the ground where it falls, in the
case of land crashes, will find any great profit in his

2' Maclachlan on Shipping, pp. 711-12.

^' Maclachlan, p. 716.

^ In French law the finder of an abandoned wreck is bound to
report it to the authorities within twenty-lour hours of entering
port. The authorities give publicity to the finding, and if the
proprietor of the wreck does not claim it within a year and a day,
it becomes the property of the State. The finder is rewarded by
a percentage of the value ; where the find has consisted of the
garments of shipwrecked sailors or of ancliors, the finder receives
100 per cent, of the value — a quaint survival of legislation. (Le-
blanc. La navigation acriamc an 'point de i'ltc dii droit civil,
pp. 98-99.)

104 AIRCRAFT IN PEACE chap.

right to the wreckage after keeping it for the prescribed
period. Where the aircraft has any appreciable value,
it will probably be claimed by the owner, or rather by
the insurance company ; the fact that an aircraft has
crashed in a certain place will usually be known at
once, for even where it falls in desert territory the owner
or insurance company will naturally infer from its
non-arrival that it has met with disaster. The cargo
will also probably be insured and is unlikely to be
abandoned if it is worth salving. Where the wreck
takes place at sea, neither the aircraft nor the cargo
will usually be worth salving, even if the machine keeps
afloat ; and as the aircraft would not constitute a
danger to navigation in the same way as derelict ships,
such a provision as is to be found in Article 8 of the
Convention on Safety of Life at Sea,^^ for the notifica-
tion by the finder of a dangerous derelict of its exist-
ence to all ships in the vicinity and to the authorities
at the first point of the coast with v/hich he can
communicate, is hardly necessary. It is, however,
desirable for other reasons that aerial derelicts should
be reported, and a provision for this purpose in an
international agreement seems to be necessary.

Notification of^ and First Aid after, Crashes

It is also desirable, for similar reasons, that some
international undertaking should be given as regards
the treatment of persons killed or injured in aircraft
crashes in foreign territory. When an aircraft crashes,
the immediately pressing need is not for its salvage but
for the care and protection of the injured crew and
passengers and the burial of the dead, perhaps un-
recognisable through burns due to the petrol catching
fire. A system for the immediate notification of such
cases by the local authorities to the central Air Autho-
rity of the country where the disaster happens, and for
the transmission of the news at once by that Authority

29 See Cd. 7246, p. 69.

VII COLLISIONS AND WRECKS 105

to the corresponding Authority in the aircraft's country
of departure, could be easily organised. The relatives
of the injured or dead could then communicate their
wishes as to removal, etc., the Air Authority of the
country where the crash occurred being meanwhile
responsible for the care of the victims, subject to
recovery of any expenses from the other Air Authority.

CHAPTER VIII

LAW IN THE AIR

Icarus and the Law

The most difficult category of questions of all those
to which human flight has given rise is the complex
of problems relating to judicial competence and the
law to be applied in the air.

Men have legislated for travellers by land and sea ;
travellers by air are unknown to the law. Justinian,
as M. Piogey has observed, never foresaw that Icarus
would disturb so inconsiderately the Code, the Digest,
the Institutes, and even the " Novels." ^ Flight, of its
nature, has been the creator of new difficulties in both
public and private international law. It is something
so inherently and pre-eminently international itself
that it was bound to have this effect. But it is at the
same time something so romantic and almost unreal
that one finds it hard to conceive its development as
involving the development also of law and litigation.
Yet, in fact, man's increasing mastery of the airways is
creating day b^/ day such stuff as laws as Vv'ell as dreams
are made of. It will assuredly add new chapters to
the legal text-books, to puzzle the heads of our grand-
children whose fate it is to study law. We of this
generation were saved, at least, the trouble of learning
whether an aircraft is a " place " vv^ithin the meaning
of the Betting Acts, whether a pilot can be guilty of
an offence corresponding to " barratry of the master "

^ Dcs regies dc droll inlcrnatlonal applicables d I'aviaLion, p. 13.

io6

CH. VIII LAW IN THE AIR 107

at sea, and so on. It is an advantage in some ways to
be born before some great and beneficent invention
or discovery has had time to develop.

The Nature of the Problem

It is partly because aircraft may pass so quickly from
one State's atmosphere into another's, partly because
the element in which they move is neither land nor sea,
that the new complications arise. A flying machine
may pass over a State's whole territory without setting
wheel therein ; can it be said to have placed itself
within that State's jurisdiction ? Suppose a crime
is committed on that aircraft ; the aircraft itself may be,
say, a Dutch one, it may fly into England and there
take up a Dane and a Spaniard as passengers, and while
it is subsequently returning to Holland circuitously,
the Dane may be murdered, over France, by the
Spaniard. What is the appropriate jurisdiction and
what the appropriate law to apply to such a case ?
This is but one of the many kinds of questions which
may arise.

The Four Classes of IVrotigful Acts

It is necessary to set out clearly the different classes
of acts which may be in question. They are :

(i) An act which all civilised States condemn
as criminal, such as murder or manslaughter ; or
one which is similarly recognised universally as a
personal wrong or " tort," such as the wilful or
negligent injuring of another in person or pro-
perty ; and the crime or the " tort," as the case
may be, is one committed within an aircraft
during flight and has no effect upon the subjacent
country.

(2) An act which is a crime or tort as at (i) but
is now one affecting the subjacent State, as, e.g.,
where a person on the ground is injured by some-

io8 AIRCRAFT IN PEACE chap.

thing carelessly dropped from the aircraft or by
the aircraft itself in an incautious landing.

(3) An act not criminal in se but unlawful and
prohibited under the laws of the subjacent State,
e.g.y the photographing of a fortress by a foreign
aviator, or the dropping of seditious pamphlets,
or the landing of undesirable and prohibited
immigrants.

(4) An act which is a contravention of some
regulation agreed to in an international conven-
tion, such as failing to display the prescribed
lights, or to keep to starboard when meeting
" head on," etc.

Contraventions of Flying Regulations

No difficulty arises in the last case— that at (4). The
contravention is forbidden in both the subjacent State
and in that of the aircraft's owner, so that either State
is entitled to punish it ; and as it is an act for which the
pilot, who must be regarded as the owner's agent, can
be held responsible, it is clear that this alternative
sanction should be effectively deterrent.

Contraventions of Defence, Immigration,
or Similar Enactments

The case of (3) is also soon disposed of, though not
so straightforward as (4). It has been suggested that
just as all difficulty is avoided in the latter case by the
simple course of making the non-observance of the
air regulations punishable in all contracting countries,
so the acts in question at (3) — and espionage in par-
ticular— should be prohibited by each and every
State, even when performed in the State's own
interests, and should be regarded as punishable by
either the subjacent State or that of the aircraft's
nationality.- The difficuhy is that, where it is a ques-

- R.J.L.A., 1912, p. 217.

VIII LAW IN THE AIR 109

tion of national defence, the foreign State's tribunals
may possibly not take the same grave view of an
incident as the complainant State. ^ When the question
was discussed by the Comite juridiqiie de V Aviation in
19 1 2, M. Talamon and M. Henry-Coiiannier thought
it was chimerical to expect the States to renounce
espionage ; it was like expecting war to be given up by
mutual agreement, said the latter/^ Perhaps we are
not so sure to-day that either expectation is so entirely
Utopian as men thought in 19 12. However, even
under a League of Nations, war is not impossible, and
so long as that is so, espionage is likely in some degree
to continue. To prevent it a State must rely on its
own long arm (until such time, if it ever comes, as the
League of Nations intervenes and establishes a tribunal
of its own for dealing with such cases). It must establish
on the ground or in the air an effective machinery for
preventing flight over its prohibited areas, or, as regards
the enforcement of its financial and immigration laws,
for controlling the entry of dutiable articles and pro-
hibited aliens. Direct action will be taken against the
pilot or possibly the passenger who offends, and if he
escapes, the damnified State will not be able to count
upon another State enforcing a judgment pronounced
against him in absentia. '* The courts of no country
execute the penal laws of another," and the test of a
penal law is that the penalty is " recoverable at the
instance of the State, or of an official authorised to
prosecute on its behalf, or of a member of the public
in the character of a common informer." ^ (As a
special and exceptional case, however, provision is
made in Annex H [para. 16] of the International Con-
vention, 1919, for infringements of the regulations as
to Customs being reported by the State damnified to
the State in which the ofi'ending aircraft is registered,

^ R.J.L.A., IQ12, pp. 219, 229.
* R.J.L.A., 1912, p. 228.

'• Westlake, Private International Law, 4th cd., § 318 b, quoting
the judgment in Huntington v. Attiill (1893).

no AIRCRAFT IN PEACE chap.

and penalised by the latter by way of the suspension
of the aircraft's registration certificate.)

" Commoti Lazv " Crimes and Torts

It is in regard to *' common law " crimes or torts
committed by the crew or passengers that questions
of competing jurisdictions and conflict of laws arise.
Contracts and wills made in the air also present diffi-
culties, and " third-party damage " done in landing,
already dealt with in Chapter VI, is a problem of
peculiar complications. A crime may be committed
by the member of an aircraft crew either on the ground
or in the air, and when committed in the air, the
victim may be either a person on the ground (as, e.g.,
when he is maliciously wounded from the machine in
flight), or another person carried in the machine. In
any of these cases the machine may escape. What
redress has the subjacent State when one of its own
nationals is the victim ?

Extradition an Inadequate Solution

The obvious redress in the case of serious crimes
is the right of extradition. M. Fauchille's earlier
draft Convention — that of 1902 — provided that the
authorities of the country in which a machine landed
should have power to arrest anyone carried in it who
had committed iin fait delictueux within another
State's jurisdiction and should hand him over to the
latter State. So Professor Catellani saw in the exten-
sion of extradition the best means of repressing crimes
in the aerial domain.*^ Extradition, however, is a
method of redress which has distinct limitations.
" Suppose a crime is committed in a German aircratt
over French territory," said Professor de Lapradelle, "^
" and committed in circum.stances which involve
disturbance of French ' public order,' and that con-

^ Droit aerien, p. 152. '' R.J.L.A., 1912, p. 90.

VIII LAW IN THE AIR in

sequently it falls under French legislation and jurisdic-
tion. After the machine lands in Germany will the
German Government be requested and expected to
hand over to France the authors of the crime ? But
in that case what becomes of the old principle of the
extradition of nationals ? "

It is the rule in extradition, it should be explained,
not to surrender nationals who have committed crimes
abroad. The practice of Great Britain and the United
States is in this respect exceptional, for these countries
extradite their own subjects ; the European Continental
Powers follow the rule of non-extradition of nationals.^

The Execution of Foreign Judgments

Extradition would not in any case apply to other
than grave criminal acts. Some other solution must
be found for the difficulties connected with the repara-
tion of injury to person or property. When the
damage is done to persons or property in the sub-
jacent State, that State's jurisdiction and laws should
clearly be invoked, where possible, to secure redress.
But what if the aircraft escapes before service can be
effected and the author of the wrong detained ? In
that case, said M. Hennequin, he should still be dealt
with by the courts of the subjacent State, and the State
of the aircraft's nationality should be bound to " render
executory " the judgment pronounced by the tribunal
of the territorial State.'-* Professor Catellani was similarly
of opinion that, in international flight, the " constant,
ready and summarily obtained execution of foreign
judgments in civil matters " was the best means of
protecting individual rights .^^

There are political and technical objections to such
a proposal. As M. Weiss pointed out in 191 2, it would
be difficult to obtain the consent of the various States

8 Bonfils, Droit international, § 459 ; Lawrence, International
Law, § 133.

" R.J.L.A., 1912, pp. 217-18. '" Droit aerien, pp. 152, 155.

112 AIRCRAFT IN PEACE chap.

to renounce their right of granting or refusing the
exequatur of foreign judgments. There would be
special difficuhies in England. English law regards
foreign judgments not — as is the Continental rule — as
choses jiigees which may be admitted to execution or
" declared executory " after a special proceeding, but
as new causes of action, involving almost a re-trial of
the case.^^ The foreign judgment is regarded in fact
as a form of contract upon which the applicant has to
sue and obtain judgment in an English court.^^ It is
true that the defendant is *' estopped " from denying
the validity of the foreign judgment, but as he is at
liberty to oppose it on the ground that the foreign
court exceeded its jurisdiction, that he was not subject
to that jurisdiction, that the judgment was obtained by
fraud, or possibly that the court made a mistake as to
English law, it is clear that the adoption of the foreign
judgment by an English court is far from being an
easy and automatic process.

States not interested in Acts done within
Passing Aircraft

As to acts done on board the aircraft and not affecting
in any way the subjacent State, while in theory the
latter State's courts have jurisdiction over them (the
sovereignty of the air being admitted), in practice it is
unlikely that such a jurisdiction would be claimed.
The circumstances are fairly comparable to those of
merchant vessels passing through foreign territorial
waters. Speaking of a State's jurisdiction over passing
vessels. Hall says :

'' The State is both indifferent to, and un-
favourably placed for learning, what happens
among a knot of foreigners so passing through her
territory as not to come in contact with the popula-
tion. To attempt to exercise jurisdiction in re-

11 Westlake, op. cit., § 313.

12 Foote, Private International Jurisprudence, 3rd ed., pp. 547 fE.

VIII LAW IN THE AIR 113

spect of acts producing no effect beyond the vessel,
and not tending to do so, is of advantage to no
one." 13

The " Lazv of the Flag " ; Some Early Proposals

Both M. Fauchille's draft Code (Article 13) and the
Code proposed by the Co?nite juridique de V Aviation
(Article 23) provide that acts done on board an aircraft
and not affecting the subjacent State are subject to the
jurisdiction and laws of the State of the aircraft's
nationality. They assimilate aircraft, in fact, to mer-
chant ships. Acts done on board a merchant vessel
are cognisable by the courts of the State of the ship's
flag, and that State is bound to give redress for them
when due.i* Some of the members of the Comite
juridique desired, indeed, to nationalise and personify
aircraft to an even higher degree than ships. It was
seriously proposed, for instance, that a child born on an
aircraft should have its nationality. Fortunately, Pro-
fessor de Lapradelle was able to convince his colleagues
that the child should follow its father's nationality .^^
But then came the question, What if the child is a
foundling ? The deplorable case of the infant stow-
away discovered in mid-air caused the Comite much, per-
plexity. They decided that it, at least, should have the
machine's nationality, though this decision was erased
by the Congress subsequently. Professor de Lapra-
delle here again, it should be observed, tried to divert
the debate into the realms of common-sense by suggest-
ing that the child should in such a case simply be treated
as of no nationality, in which event domicile would

" Hall, Internallonal Law, 7th ed., p. 216. Hall excludes from
this dictum the case where the anchorage of a vessel may cause
risk of infection, though nothing has been done in the vessel to
produce an effect outside. A State is clearly entitled to forbid
even a " through " flight across its territory by an aircraft from a
contaminated region ; something might be dropped overboard
from the machine and the disease thus conveyed to persons below.

'* Hall, Internalional Law, 7th ed., pp. 263-5.

"^ K.J.L.A., ifji.i, pp. 246-7.

I

ti4 AIRCRAFT IN PEACE chap.

subsequently determine nationality.^^ The Comite
also discussed marriage in an aircraft.^ ^ One can only
wonder, after that, why they did not determine how
people could be divorced in an aircraft .^^

The Case for Applying the Lazv of the Flag

To treat an aircraft like a ship in regard to the
application of the " law of the flag " to acts done on
board is prima facie the simple and logical course to
follow. Certainly the transatlantic dirigible or flying-
boat is a fairly close analogue of the maritime craft.
In overland journeys, too, it seems to be advantageous

i« R.J.L.A., 1912, p. 263.
1' R.J.L.A., 1912, p. 261.

M. Gaston Bonnefoy {Le code de I'air, p. 216) quotes an instance
of an accouchement in "a balloon. Such an occurrence would clearly
be possible in the case of a long-distance voyage by airship.

There is also, indeed, an instance of a wedding in the air; but it
was a " freak " ceremony carried out under conditions carefully
stage-managed. As reported in the Press of 27 June, 1919, the wed-
ding took place in New York at an Athletic Meeting, the young
couple ascending in one aeroplane and the clergyman in another and
the aeroplanes being installed with wireless telephony apparatus.
The clergyman read the marriage service and heard the bride and
bridegroom exchange vows. The witnesses remained on the ground
and heard what was said through megaphones attached to the wire-
less telephone receivers.

18 The Comite did, however, draw up some useful rules as to the
record and notification of births and deaths occurring on aircraft.
These rules were subsequently condensed by the Congress of the
Comite into the folloAving Article : —

" In case of a birth or a death on board an aircraft during
flight, the pilot will record the occurrence in the log-book.
The pilot will be bound to lodge a copy of the entry at the
first place where the aircraft lands. It will be lodged, (i) if
the place is part of the territory of which the aircraft possesses
the nationality, with the competent public authority, (2) if the
place is in foreign territory, with the consul of the aircraft's
nationality. If there is no consul in that place, the copy
will be sent by the pilot by registered post to the consular
authorit}'^ of the aircraft's nation alit}-."
A proposal that " the deceased should be regarded as having
died in the territory of the country of the aircraft's nationality "
was omitted, apparently because it" trenched upon internal legisla-
tion ; and so was another proposal which provided for the drawing
up by a public authority of a statement of " presumption of loss "
where an aircraft was totally lost. (R.J.L.A., 1912, pp. 275, 272,
258.)

VIII LAW IN THE AIR 115

that a single jurisdiction should be recognised as
governing the aircraft as a whole at any given time.
One might conceivably adopt as that single jurisdiction
the jurisdiction of the subjacent State, but this pro-
posal is open not only to the objection that the State
in question is indifferent to what happens in a non-stop
aircraft flying over its territory, but to the further one
that it is not always possible to say above what State's
territory an act occurred.

The Doctrine of the " Volume Frontier "

To meet the latter difficulty the ingenious proposal
of the " volume frontier " has been made. As stated
in its most convincing form by Dr. Guibe it is as
follows '}^

A line frontier is impracticable in the air. The
frontier should rather be regarded as a -volume, and
within this " volume frontier " the two bordering
States should exercise a condominium. Clearly, how-
ever, exactly the same uncertainty as to the geographi-
cal limits of the frontier zone may exist as in the case
of a line frontier ; it cannot be ascertained exactlv when
an aircraft enters the zone. Therefore, says Dr.
Guibe, the doctrine of the volume frontier must be
modified to read that " an act will be considered as
accomplished in the common zone if it is impossible to
localise it with certainty in one or other atmosphere."
The practical result will be that the first State to be
sei?ed of an act happening in the undefined area will
be competent. The idea is attractive and might be
developed.

The Essential Difference between Air and Sea Travel

For the present at any rate the usual view held is
that aircraft should be assimilated to seacraft and that

'" Exsai stir la navigation aerlenne, pp. 224-7. See also La
notion de la frontidre adrienne, by M. Henry-Coiiannier, R.J.L.A.,
19x0, pp. 261-3.

I 2

ii6 AIRCRAFT IN PEACE chap.

the law of the flag should govern acts done on board.
Simple and logical at first sight, this assimilation will be
found on closer examination, the WTiter suggests, to be
neither the one nor the other. The conditions of sea
and air travel, similar in some respects, are entirely
dissimilar in those which are of importance here. A
ship is a floating home ; an aircraft is essentially a
locomotive vehicle, a mechanical magic carpet in which
one never settles down and in which it is impossible
to forget that the journey is a brief, passing interlude
between ordinary life and business at one place and
ordinary life and business at another. The passenger's
connection with the flying machine is more casual and
transitory than with a ship ; in an overland journey
at any rate he is, to the aircraft, very much in the same
relation as the pedestrian is to the motor-car which
gives him a lift. In a sea voyage there is at least the
break and interruption, even though temporary, of
residence and even allegiance which departure from the
territory involves. The aircraft, on the other hand,
seems hardly to lose touch with the land (except, of
course, in sea journeys, which are always likely to be
fewer and less normal than cross-country journeys).
There is, in fact, more similarity between a flying
machine and an automobile than between it and a ship ;
the analogy is obviously far from perfect, but for the
writer's immediate purpose it is a more helpful com-
parison than the other.

The machina itself turned deus

It has never been suggested that the Frenchman who
takes a lift in an English car, on tour in France, from
Boulogne to Paris, should thereby subject himself in
any way to English law and jurisdiction. Of course
he never leaves French soil, as he would do in an
aircraft, but should the fact that he is whisked along be-
tween the two places in question at a height of some
thousands of feet instead of along the ground make

VIII LAW IN THE AIR 117

such a difference and involve such alarming legal
consequences ? Why should the man be absorbed in
and dominated by the machine's personality just
because it flies ?

The Case for " Analysing the Load "

To the writer's mind it is a profound mistake to
regard an aircraft as *' territory," for that is really what
the application of the law of the flag means ; and a
still worse mistake to regard it as the territory of the
owner's State. If one must personify the aircraft and
allow it to impose, in some degree, an " induced "
nationalitv upon those whom it carries, one should at
least select a nationality which w^U prove the most
practically convenient. That nationality, as stated in the
second chapter of this book, is the nationality of the air-
craft's "home," or ordinary headquarters. It is required
intermittently only and only for certain purposes ;
for the purpose of fixing jurisdiction in civil cases it
is quite unnecessary. In such cases, one can forget
the machine and think of the men.

One is in face of a new problem in which there is no
exact precedent either to guide or to hamper. What is
the most practical course to follow ? One has more
or less a clean slate to write upon.

The Choice of a Jurisdiction and a Law

Even if one grants that, the subjacent State being
indifferent, acts done in the air must be afPJiated, if
one may put it so, to some putative jurisdiction which
has to be fixed more or less arbitrarily, there is no reason
for fixing on the jurisdiction of the country of the
aircraft owner's nationality, unless, acceptinr^" the
maritime precedent blindly, one prejudges the whole
question. There are in fact disadvantages in fixing
on a jurisdiction with which the authors or victims of

ii8 AIRCRAFT IN PEACE chap.

the acts in question have no necessary concern. But
then what jurisdiction should apply ?

The Home Office View in 191 1

The British Air Navigation Bill of 191 1 answered
this question by making the courts within whose juris-
diction the culprit happened to be found competent
to deal with any offence committed in the air (i) by
a British subject on board a British aircraft anywhere,
or (again anywhere) on board a foreign aircraft to
which he did not belong, (2) by a foreigner on board a
British aircraft over the high seas, (3) by either a British
subject or a foreigner in a British or foreign aircraft
over the British Isles or territorial waters .^^ The
provision is a curious mixture of three principles of
jurisdiction^ — that of the subjacent State, that of the
aircraft's nationality, and that of the " personal /orww of
the defendant " (a British subject on board a foreign
aircraft to which he did not belong being placed within
the British courts' jurisdiction). It solves the question
by arrogating to British courts a comprehensive juris-
diction which would certainly lead to a conflict of laws.

-" The Bill contained the following Article : —

20. — (i) For the purpose of giving jurisdiction under this Act every
offence shall be deemed to have been committed in the place in or
over which the same was actually committed or in any place in which
the offender may be.

(2) Where any person, being a British subject, is charged with
having committed any offence on board any British aircraft in the
air, over the high seas, or over any foreign country, or on board
any foreign aircraft to which he does not belong, or not being a
British subject is charged with having committed any offence on
board any British aircraft in the air over the high seas, and that
person is found within the jurisdiction of any court in His Majesty's
dominions which would have had cognisance of the offence if it had
been committed on board a British aircraft within the limits of its
ordinary' jurisdiction, that court shall have jurisdiction to try the
offence as if it had been so committed.

(3) Where any offence is committed in any aircraft in the air
over the British Islands or in the territorial waters adjacent thereto,
the offence shall be deemed to have been committed either in the
place in which the same was actually committed or in any place
in which the offender may be.

VIII LAW IN THE AIR 119

Jurisdiction in Civil Cases

The draft Act of 191 1 refers — as every such Act
must — to crimes only, and the question of jurisdiction
over torts (or, of course, contracts or wills) is not
touched by its provisions. The latter question is one
of private international law. As such it is a question
which would be settled, in the normal course, by the
action of the various national courts in claiming or
repudiating jurisdiction, or in admitting or disallowing
the application of another State's law, and in thus
establishing in course of time a body of rules to govern
practice. There are clear advantages, however, in
having the principles upon which a certain jurisdiction
or a certain State's laws should be applied to an act
done in the air defined and agreed before concrete
cases come before the courts and possibly conflicting
decisions as to competence or the appropriate law are
given. It is unusual to make questions of purely
private international law the subject of an international
convention ; but there is a precedent in the Con-
ventions of 12 June, 1902, on Marriage, Divorce, and
the Guardianship of Minors.

The Analogy of the " Law Maritime "

The question, it may perhaps usefully be added,
is not one of creating or building up a distinct air
law similar to the " law maritime " which the courts
of England and other maritime States apply to their
countries' ships on the high seas. A special *' law
aerial " may emerge in time, but it will be a law con-
cerned with the more or less technical questions of
aerial navigation, such as the legal responsibility in
collision cases, the power of a pilot or commander to
sell a damaged aircraft or salved cargo, and so on. It
will not deal with the contracts, torts, etc., of air
passengers, or the members of crews as individuals.

120 AIRCRAFT IN PEACE chap.

These will still fall to the ordinary jurisdiction and will
be dealt with under the common law of the various
States.

The Two Cases : (a) The Air Journey within a Given

Country

In considering the jurisdiction and law appropriate
to acts done in the air, one must bear constantly in
mind the special circumstances of aerial navigation.
Remembering them, one would begin by drawing a
distinction between two classes of cases. During
the flight of a foreign aircraft over a given territory,
an act having legal consequences may be done either
(i) by a person who has been taken up in the aircraft
at one point in the territory and is to be set down at
another, or (2) by a person who is really engaged in
an international flight, i.e., v\^ho came in the aircraft
into the country or is going out of the country in the
aircraft. The former person cannot properly be
considered ever to have left the jurisdiction. He is
almost in the position of the local resident who is given
a " lift " in a foreign touring motor-car from his own
village to the next. His case is quite diff"erent from
that of the passenger or member of the crew whose
only connection with the local country is that he travels
through it by air — ^the difference is most clearly marked
where the flight is a non-stop one — or who at least
crosses the frontier in coming or in going and, when he
does the act in question, is midway between two
jurisdictions, if one may put it so.^^

21 The International Convention of 1919 provides (Article 23)
that " Legal relations between persons on board an aircraft in
flight are governed by the law of the nationality of the aircraft."
Hence, if an English business man makes an air journey from, say,
Manchester to London on an aircraft which happens to be owned
and registered in Denmark, and makes a contract en route %vdth
another Englishman performing the same journey, neither passenger
having any intention of leaving England, the contract would ap-
parently be governed by Danish law. The inconvenience of such
an arrangement is obvious.

VIII LAW IN THE AIR 121

(b) The Air Journey to or from Abroad

The writer suggests, then, that acts done in the air
by a person who joins the aircraft at one point and
leaves it at another in a given country without having
crossed the frontier should be regarded as done on
the groimdr^ What of the acts done in the other
case ? The usual reply to this question is that such
acts should come under the jurisdiction of the State
of the aircraft's flag, that is, of its owner's nationality.
But even if the jurisdiction of that State were approved,
it does not follow that a case arising out of an act
done in the air would always and necessarily come
before its courts. Those courts might not entertain
it in any particular instance. ^^ The English courts,

^^ The proposal in the text might be criticised in several ways :
first, as regards contracts, other people in the aircraft would not
know that the person who joins them intends to descend within
the same country ; secondly, as regards crimes, to regard the act
as done on the ground means that jurisdiction is confined to the
local State, whereas both that State and the State of the aircraft's
nationality should have jurisdiction over crimes done in the air
(according to the writer's later proposal). As to the first point,
it is reasonable to expect that people making a contract mth a fellow
passenger should know so much about him as where he intends to
leave them ; as to the second, the reason for recognising the double
jurisdiction in the case of crimes committed in a really international
flight is that the criminal may fly out of the jurisdiction, wliich,
ex hypothesi, he does not do in the case here in question.

2^ Indeed, under the circumstances of aerial travel it may happen
that the courts of the country of an aircraft's nationality will take
the same objection to dealing with contracts and torts as was raised
by Vice-Chancellor Malins in the case of in Matthaei v. Galitzin
(1874). " Certainly, according to my view," he said, " i^ is no
part of the business of this Court to settle disputes between foreigners.
There must be some cause for giving jurisdiction to the tribunals
of the country ; either the property or the parties must be here,
or there must be something to bring the matter within the cognisance
of this Court."

" There is an element of absurdity," says Mr. Foote {Private
Inlernaiional fuyisprudencc, 3rd ed., p. 336), " in supposing that a
Frenchman who visited Folkestone for a day trip could be served
there with a writ in an English court to answer for a breach in France
of a contract made in France with another Frenchman ; or that one
of his fellow passengers and fellow countrymen could bring an
English action against him in I'"olkcstone for an assault committed
a week before in Boulogne."

122 AIRCRAFT IN PEACE chap.

for instance, would probably insist, before they would
deal with a case of aerial tort, that the defendant should
be present within the jurisdiction, or, if he was outside
it, that the conditions contemplated in Order XI, r. i ,
of the Supreme Court Rules should be shown to exist.^^
The case might come before the courts of an entirely
different State, that is to say, the courts of the country
in which the defendant could be apprehended. The
latter courts, in dealing with an aerial tort or contract,
would have regard, in their judgment, to the law of
the State in whose jurisdiction the tort was done or
the contract made, and. so on, i.e., ex hypothesi, the law
of the country of the aircraft owner's nationality.
But why should that cross-reference to the latter
State's law be necessar}- ? What particular advantage
is there in such a case in bringing in the second State's
laws at all ? It would be far simpler and would serve
justice equally well to let the law and jurisdiction of
the lex fori apply. In civil cases, at any rate, there
appears to be no strong objection to such a rule, but
the case of crimes is special.

The Difference between Crimes and Torts

Between crimes and torts, alike as .they are in many
cases in regard to the physical acts which constitute
them, there is the very important legal difference that
crimes, being offences against a given State, are
essentially local in character, while torts, being wrongs
against an individual, are rather personal. It is true
that all civilised States regard as punishable at home
grave political offences against themselves committed
by their subjects while resident abroad ; and sometimes
the more heinous crimes — such as murder and man-
slaughter— are treated in the same way.^^ These

2* Westlake, op. cit., § i86.

25 English courts will deal with cases of treason, murder, man-
slaughter, or bigamy committed by British subjects abroad. German,
Belgian, French, and Italian legislations admit the punishment by
their courts of even foreigners for crimes such as falsification of the

VIII LAW IN THE AIR 123

cases are, however, exceptional, and the general rule
is that, in regard to crimes, the territorial view of
competence is adopted, notably by the two great
" common law " countries, England and America.
A crime is in essence a breaking of " the King's peace "
or a disturbance of public law and order, and the fact
that it has been perpetrated within the realm is a
material factor in the decision as to judicial competence.
A tort, on the other hand, is something personal
to the active party or culprit — the tortfeasor. The
guilt, as it were, follows him. *' An English court
has a right to entertain all actions for personal wrongs,
wherever and by whomsoever committed, without
any breach either of the comity of nations or the
technical requirements of English law-. The action
complained of, however, must be actionable by English
law, and wrongful (or not justifiable) by the law of
the place where it was committed."-^ "Provided
that the person of the defendant is within the juris-
diction of the English courts, he can be sued in
England for a libel published in New York, or for an
assault committed in Turkev."-^

The " Normal " Forum for Crimes

Hence, in considering what is the appropriate
jurisdiction for a (so to speak) homeless crime or tort
committed in the air, one should fasten on the place
of the act in the former case and on the person doing
the act in the latter. A crime is thus '* local," and one
must ask oneself, What State's law and order have

currency committed abroad, and the laws of Russia (under the
Empire) and Italy would even punish foreigners for the murder
abroad of Russian and Italian subjects, respectively, as well as for
arson and forgery. (Bonfils, Droit international, p. 244 ; Lawrence,
International Law (Heath, Boston), pp. 219-220.)

2' Foote, op. cii., p. 485.

2^ Salmond, Law of Torts, 3rd ed., p. 148. He goes on to point
out that, to be actionable in England, the foreign tort must
(i) have been unlawful in the place where it was done, (2) be of a
kind which would be actionable as a tort if done in England.

124 AIRCRAFT IN PEACE chap.

been broken ? Two States have a claim to considera-
tion— the State in whose atmosphere (and therefore
in whose jurisdiction, in theory) the crime was com-
mitted and the State whose nationahty the aircraft
possesses. According to the writer's view (see Chap-
ter II) the latter State will be that in which the aircraft
is housed or normally located, and in which therefore
the pilot (at least) is likely to be resident and available
to give evidence. (This would not necessarily be so
under the ordinary view taken of an aircraft's nation-
ality, viz., that it should follow its owner's.) But the
State in whose atmosphere the crime was committed
seems to be the better choice. It will be natural for
an aircraft in which a crime has been committed to
land at once upon its occurrence. A full investigation
of the case will then at once be possible ; some in-
convenience may be caused to the crew and the pas-
sengers, but probably less than if they had to attend at
some other State's courts. The State " of the flag "
should, however, be recognised as having concurrent
jurisdiction, and the crime should be cognisable by
the courts of either State. Where the crime was com-
mitted over the high seas, it is obvious that it is the
jurisdiction of the State of the aircraft's flag w^hich
should apply ; in other cases either that State's courts
or those of the subjacent State would be competent
according as the former or the latter were first " seised "
of the case. A proposal on these lines was made as
long ago as 191 1 by Professor Sperl of Vienna.^^

28 " The State has no interest in punishing a deUct which has
been committed in its aerial domain on a foreign aircraft passing
through it and by a foreigner. The pubUc peace of the subjacent
State has been in no way disturbed in such a case. The place of
the delict has only a geometrical relation with the State's domain,
a relation in itself immaterial. Although the State has here no
interest in repression, it may nevertheless, in virtue of the general
principles of penal law and the law of procedure, take cognisance
of these matters and subject them to its jurisdiction. It is probable,
however, that international treaties will attribute the cognisance
of acts which have only an accidental connection with the aerial
domain of any given State to the penal justice of a State more
directly interested. At this point of view various States have claims

VIII LAW IN THE AIR 125

Crimes and Torts affecting the Subjacent State

A similar concurrent jurisdiction will probably
have to be allowed even where the crime affects some
person on the actual territory of the subjacent State.
Such a crime is strictly a matter solely for the latter
State's courts, but unless there were in being a very
highly developed local system of policing of the air,
it is possible that in many cases the criminal might
make good his escape. If he then came under the
jurisdiction of the State of the flag, his ultimate escape
would be less likely ; and, where the rules of law to
meet a new situation have to be created, it is a pity
to allow a technical consideration to weigh in favour
of the wrong-doer. Indeed, it is questionable whether
there should not similarly be a concurrent jurisdiction
in the case of torts affecting persons or property in the
subjacent State. The courts of that State and those
of the country in w^hich the defendant vv^as present
and could be served would then have competence,
instead of the former State's courts only.

Torts Committed in the Air

Since a tort, as has already been stated, can legally
be pursued wherever the tortfeasor goes, the place of
its occurrence has not the same legal significance as
the place of the commission of a crime. A tortious
act done in the air can, in fact, be dealt with under the
ordinary rules of private international law. The
physical conditions surrounding it are new, but there

to be considered — the State of which the deUiiquent is a national, the
State to which the person endangered or wounded belongs, the State
in which the aircraft has been registered, perhaps the State in which
the delict was first committed. If penal competence is some day
delimited, it is possible that the right of punishing an act committed
in the aerial zone may be attributed concurrently to two States.
The State exercising its right of repression first would thus extinguish
the right of the other State." (Sperl, La navigation adricnne, in
R.D.I., 191 1, p. 482.)

126 AIRCRAFT IN PEACE chap.

is nothing new in the legal problem which the case
presents. It is a case, from the point of view of any
given State's courts, of a tort committed outside the
jurisdiction. If the act is done in the air and does
not affect persons or property in the subjacent State,
and if, consequently, the latter State is indifferent
and waives any theoretical jurisdiction it may possess,
the act m.ay be regarded as done in a place where no
municipal law runs. In that case, the court before
which the case comes, i.e., the court of the coimtr^^
in which the defendant can be apprehended and which
will normally be his country of domicile, will deal
with the case under its own law, the lex fori. '^^ If, on
the other hand, the act was one which though done
in flight affected persons or property on the ground of
the State over which the aircraft was flying, the latter
State will not be prepared to waive its jurisdiction and
will deal with the tort if the culprit lands or otherwise
comes within the jurisdiction. It is possible, however,
that he may fly across the frontier after comxmitting
the wrongful act, and in that case the tort would have
to be pursued before the courts of some other State,
that is to say, whatever State the culprit is to be found
in (as in the case of an act not affecting persons or
property on the ground). The court dealing with
the case will then take account of the subjacent State's
laws to this extent (at least under English and French
practice), that it will inquire whether the tort in ques-
tion is wrongful under those laws. (If the tort Vv-as
one affecting foreign immovables, an English court
would not deal with it and the action would have to
be brought in the country' in which the property was
situated, i.e., in the subjacent State.) Thus in either
case the court which deals with a tort committed in
an aircraft " abroad " will deal with it under the ordi-
nary rules of private international law, both in defining
its own jurisdiction and in deciding whether a foreign
law has a bearing upon the case.

29 Foote, op. cit., p. 485.

viii LAW IN THE AIR 127

Contracts made in the Air

It will do the same in the case of a contract made in
the air, but here a qualification is necessary. The
place where a contract is actually made is of importance,
for under the rules of private international law the
law of that place governs the formalities of the contract
and also — unless there is evidence that the contracting
parties intend otherwise — ^the intrinsic validity and
effects, and, in general, the interpretation.^^ It is
consequently necessary to localise the making of a
contract, and the court before which the case of a
contract made in the air came would have to regard
it as made " somewhere." Where will it consider the
contract as being made ? One cannot say the country
in which an action arising out of the contract will be
heard — that is, one cannot make the lex fori applicable.
It would not be known, when the contract is made,
what that country will be, nor indeed whether any
legal action will arise at all. The contract must,
however, be concluded in accordance with the formali-
ties of some country's laws, and the right choice in the
circumstances appears to be the country of intended
performance. Performance in some specific country
will almost inevitably be contemplated by the parties,
either by implicit or express provision, and the law of
that country should be taken as governing the form,
interpretation, and validity of the contract. The
lex fori will apply to the procedure for remedy. In
other words the ordinary principles of private inter-

^" " It is an undoubted rule that the law of the country where

it Ls made is to be considered in expounding a contract

But this rule admits of certain exceptions, e.g., where the parties at
the time of making the contract agreed to submit all questions to
the arbitrament of a foreign court, or else had in contemplation its
execution in a different kingdom ; for contracts arc also to be
considered accorrling to the place where they are to be executed,
and the court will look at all the circumstances to ascertain by the
law of which country the parties intended the contract to be governed,
and will enforce the contract accordingly . . . ." (Chitty on
Contracts, i6th ed., pp. 107-8.)

128 AIRCRAFT IN PEACE chap.

national law will apply with the sole necessary modifi-
cation that the lex loci solutionis will take the place of
the lex loci celebrationis, wherever, in a contract made
on land, reference would be made to the latter law.

As regards contracts made on the ground, it may here
be explained, no considerations special to aerial
navigation appear to arise. Some difficulties of inter-
pretation and jurisdiction may be met, but they do not
differ essentially from those encountered in contracts
for sea and overland transport. The principles of
such cases as Cohen v. S.E. & C.R. and P. & O. Co.
V. Shand will no doubt be adopted as applicable to
aerial as to other international transport. ^^

Last Wills and Testaments

For testaments or wills made in the air the primitive
and natural jurisdiction is that of the testator's country
of domicile, and the law of that country should apply,
except — under the ordinary rule of private international
law — ^in regard to the passing of immovable property,
which is governed by the lex situs.

Questions of an Aircraft Crew^s Discipline, Wages, etc.

There is one class of questions in which it will
probably be the rule to leave jurisdiction to the law
of the flag, viz., questions of the interior economy or
discipline of the aircraft's personnel or crew. Questions
of this kind are exempted from the local jurisdiction,
under the general practice of International Law,
when arising on a merchant vessel in a foreign port.^^
Here, again, the case of maritime and the case of
aerial navigation are not quite parallel, but reasons of
general utility will probably weigh in favour of apply-
ing the maritime rule to the other domain. M. Fau-

^^ Foote, op. cit., pp. 429-431.

22 " In 1 866 the United States refused to compel the seamen on board
a British merchant ship in American territorial waters to perform
their duties as mariners." (Lawrence, International Law, § 119.)

VIII LAW IN THE AIR 129

chille's draft code contained a provision that simple
infractions of discipline and professional duty on the
part of an aircraft's crew, even while on the soil of a
foreign State, should be excepted from the local
jurisdiction. The Comite jiiridique de V Aviation
omitted the provision from the code which they ap-
proved, on the ground that it was an interference with
internal legislation.^^ There is, however, a personal
connection between the crew and the State of the
flag where the latter State is that in which the air-
craft is normally housed and in which the crew are
most likely to have been engaged ; and the jurisdiction
and laws of that State would seem to be the most
appropriate to apply to questions affecting their
services.

Summary of the Proposals as to Jurisdiction

One may summarise briefly as follows what has been
said in this chapter as to the jurisdiction most appro-
priate to the various kinds of acts that may be done in
an aircraft over foreign territory :

(i) Contraventions of air regulations agreed to in
an international convention would be punishable
either by the local State or by the State of the air-
craft's nationahty.

(2) Contraventions of the subjacent State's defence,
fiscal, or similar laws and regulations would be dealt
with only by that State (unless at some future date the
courts of the I^eague of Nations deal with them, as
being cases tending to disturb good inter-State
relations).

(3) Acts (crimes, torts, contracts, etc.) done in the
air by a person taken up at one point in a country
and set down at another, without having crossed the
frontier, would be treated as done on the ground.

(4) Murder and other " common law " crimes
committed in the air, whether affecting persons on the

3' R.J.L.A., IQ12, p. 91.

K

I30 AIRCRAFT IN PEACE chap.

ground or only those within the aircraft itself, would
come under the jurisdiction of either the subjacent
State or the State of the aircraft's nationality.

(5) Save as at (3), torts committed in the air and not
affecting in any way persons or property in the sub-
jacent State would come under the jurisdiction of the
courts of the country in which the defendant is present
and can be served, which would ordinarily be his
country of domicile.

(6) Torts committed in the air but affecting persons
or property below would be treated as within the
subjacent State's jurisdiction, but the concurrent
jurisdiction of another State as at (5) might perhaps
be recognised.

(7) Save as at (3), contracts made in the air would
be regarded as made in the " country of intended
performance."

(8) Save as at (3), wills made in the air would be
treated as made in the country of the testator's domicile.

(9) Infractions of discipline and questions of the
interior economy of the aircraft would be treated
(even perhaps if the act in question were done on the
ground) as being within the jurisdiction of the courts
of the aircraft's nationality.

The aircraft, it is assumed, would possess the
nationality of the country in which it was registered,
and that country would be the country in which its
headquarters were situated. To meet possible diffi-
culties arising under paragraphs (4) and (6) above, the
principle of the " volume frontier " might be usefully
applied to cases in which the act in question was done
in the undefined border atmosphere.

The Necessity for Detailed Rules

The rules set out above appear, the writer admits,
to be unnecessarily detailed and complicated. They
compare badly with the terse and businesslike pro-
position that the law of the flag governs acts done in

VIII LAW IN THE AIR 131

an aircraft in flight. But the simpHcity and directness
of that proposition will be found, in practice, to be
wholly on the surface and utterly deceptive. On
closer examination the brief and popular formula
loses every shred of its character. As a practical,
working solution of the entirely new and extraordinarily
difficult question of jurisdiction in the air, the writer
is convinced that no simpler or less detailed body of
rules than those given above will be of any use what-
ever. Probably fuller and still more detailed rules
will be found necessary in practice.

Military Aircraft a?id Exterritoriality

It remains to consider the position as to public
aircraft. Between military and other kinds of public
aircraft a distinction has to be made. The entry of
military aircraft into another State's atmosphere is
held to be necessarily subjected to special rules, for
(i) the military interests of the State entered require
that entry should in no case be made without its
permission ; (2) the military interests of the other State
require ihat, if entry is approved in a particular case,
its aircraft should be exempt from, inspection or other
interference by the local authorities. The first of
these rules, if it is to be maintained at all, should not
be overridden even on the plea of force majeure — a
plea which there will often be occasion to raise unless
the old practice of placing military aerodromes fairly
close to the frontiers is abandoned. As regards the
second rule, the aircraft's exterritoriality should not
absolve its crew from observing the local laws and
regulations, and it should be permissible in extreme
cases for a military aircraft even to be ordered to leave
the territory or perhaps to be forcibly removed :
such direct action would be justified under international
law against a warship whose crew had so far abused
their privileges in a foreign port as to violate the
sovereignty of the territorial State. The British

K 2

132 AIRCRAFT IN PEACE chap.

military authorities would be justified, for instance, in
expelling an American flying-boat, piloted by a U.S.A.
officer of Clan-na-Gael sympathies, which, after being
permitted to enter Cork Harbour, proceeded there to
extend help and encouragement to the local Sinn
Fein rebels. (The example, needless to say, is wholly
imaginary and improbable.) In other cases, any
action against the aircraft or its crew would be indirect
or diplomatic, both in civil and criminal cases. The
local Government would make representations to the
Government of the aircraft's flag and redress would
only be obtainable via the respective Foreign Offices.

The Definition of Military Aircraft

The difficulty in connection with military aircraft
is not, however, the question of jurisdiction, but the
prior one of the definition of such an aircraft. What
is a military aircraft ? Peace types are adaptable to
war. The fast sporting one-seater and the great
multiple-engine commercial aircraft could be used for
scouting and bomb-dropping respectively ; and civil
pilots are likely to be reserve officers or N.C.O.'s of
the flying service of their State. Definitions of
military aircraft have varied. M. Fauchille's draft
Convention of 1910 (Article i) defined as a " military
aircraft " one which is assigned by the State to a mili-
tary service and which is commanded by an officer, in
uniform, of the land or sea service.^* The French
Decrets of 21 November, 191 1, and 17 December,
1913,^^ and the draft Convention of the Paris Con-
ference of 1910 class as military aircraft such public
aircraft as are in military service, under the orders of
a commander in uniform and having on board a
certificate proving their military character ; and public
aircraft were already defined in each case as the air-
craft employed in the service of the State. The draft

2* Annuaire de I'lnstitut de Droit International, 191 1, p. 105.
35 R.J.L.A., igii, p. 308 ; 1913, pp. 16-17.

VIII LAW IN THE AIR 133

French law of 19 13 differed only in omitting the con-
dition as to the possession of a certificate and making
the wearing of uniform by the commander or his
having " a distinctive sign fixed by a ministerial
regulation " alternative conditions. ^^ The Franco-
German Agreement of 26 July, 1913, classed as air-
craft which were allowed to enter the opposite State's
territory only with its special permission, and there-
fore, by implication, as military aircraft, those which
belonged to the military administration or were
manned, in whole or part, by a crew of military
persons in uniform.^^

The Difficulty of both Definition and Prohibition

The new International Convention of 1919 breaks
away from precedent by simply defining a military
machine as one commanded by a person in military
service, detailed for the purpose. There is no refer-
ence to the commander's being in uniform, to the air-
craft's being employed in the State's service, or to its
bearing documentary evidence of its military character.
No doubt it was assumed that uniform would naturally
be worn by a person detailed for duty and that a State
would not detail him for duty in other than a service
machine. The facts that (i) officers on the active
list of the flying services may fly for pleasure or sport
outside of their military duties, (2) officers of the
reserve may conceivably be ordered to use private
machines to pick up information abroad which would
be invaluable to them if mobilised, (3) a machine in
the reserve, i.e., one upon which the Government has
a call in the event of mobilisation, may freely be taken
into foreign territory by an officer in plain clothes,
and possibly an officer who will use that very machine
— say a fast scouting type — in war, show what a
number of loopholes there are for escaping from the
conditions restricting the international circulation of

" R.J.L.A., 1913, p. 181. 37 K.D.I. , ICJ13. p. O98.

134 AIRCRAFT IN PEACE chap.

fighting aircraft. The Franco- German Agreement of
19 1 3 was certainl}^ intended to prevent the military
aviators of the one coiintr}?- from flying over the other ;
yet, as Professor Rolland has pointed out,^^ it allowed
a German officer even in uniform to fly into France
like any private aviator ; all he had to do was to go
as 2i passenger in a private machine piloted by a friend,
a civilian. It is very questionable whether the rules
restricting or forbidding military aerial circulation
abroad are, in practical results, worth the paper they
are written on.^^

Public {Non-military) Aircraft and Exterritoriality

M. Fauchille's draft Convention followed the mari-
time analogy in claiming the privilege of exterritoriality
for public aircraft generally, ^^ and Professor Rolland
took a similar view in 191 3. ^^ The Paris draft Con-
vention of 19 10, however, allowed exterritoriality
only to military aircraft, and although one school
of thought is in favour of assimilating police,
customs, sanitary and similar State aircraft to militar}',
only excluding " State commercial aircraft " (i.e.,
those employed on a public transportation service of
persons or goods), the modern view inclines towards
treating all public aircraft other than military as
private aircraft for the purpose of jurisdiction. ^^

38 R.D.I. , 1913, p. 713.

39 In a Circular dated 6 October, 1913, the French Minister of Marine
forbade French officers to travel to foreign countries by any form
of locomotion, without leave of the Minister. The Circular men-
tioned that an officer on leave had recently travelled to England by
aeroplane and thus infringed the English laws regulating the zones
over which flight was prohibited. " Incidents of this kind," it was
added, " besides exposing those responsible to severe penalties,
give rise to diplomatic representations which should be avoided."
(R.D.I., 1913, Documents, p. 72.) Ser\dce Orders of this kind to
officers would probably be more useful than any international pro-
Mbition of entry of military aircraft into another State's territory.

*° Annnaire de I'lnstitut de Droit International, 1911, p. iii.

«i R.D.I. , 1913, p. 723.

*2 The Serbian Regulations of 19 13 class all public aircraft except
military \vith private aircraft so far as entry of Serbian atmosphere
is concerned. (R.J.L.A., 1914, p. 159.) The French Decrets of

VIII LAW IN THE AIR 135

This view is embodied in the Convention of 1919.
Clearly freedom of circulation must be allowed to
postal aircraft if they are to be employed at all, and if
aircraft are to be allowed to come and go without
abnormal restrictions, they should be subjected to the
ordinary administrative laws and regulations. Police
aircraft again, as Dr. Guibe has pointed out,*^ would
lose a good deal of their utility if they were forced to
halt at the frontiers of their State and to watch an
aerial criminal escape into the forbidden zone. A
similar consideration is applicable to customs air-
craft. But, though exterritoriality is not recognised,
the aircraft in question and their pilots are in the service
of the State to which they belong, and it is probable
that the local courts would hesitate to entertain
actions in which, in effect, a foreign sovereign Power
would be the defendant. Diplomatic procedure is
likely to be adopted where redress is desired in respect
of any act or omission of public aircraft in foreign
jurisdiction.

191 1 and 1913, while defining public and, as a subdivision of public,
military aircraft, specifically prohibit the entry of foreign military
aircraft, but say notliing on this point as to other public aircraft.
(R.J.L.A., 1911, p. 308 ; 1914, p. 16.)

*^ Essai sur la navigation aerienne, p. 197.

M. Piogey {Des regies de droit international applicables d I' aviation,
p. 41) suggests that police aircraft (in which he includes sanitarj''
and customs aircraft) should not be obliged to have a commandant
in uniform, because it will sometimes be necessary for them to
disguise their character.

APPENDIX I

CONVENTION RELATING TO INTERNATIONAL AIR
NAVIGATION, 1919.

Annexes.

Annex A. — The Marking of Aircraft.

Annex B. — Certificates of Airworthiness.

Annex C. — Log Books.

Annex D. — Rules as to Lights and Signals. — Rules of the Air.

Annex E. — Minimum Qualifications necessary for obtaining

Certificates as Pilots and Navigators.
Annex F. — -International Aeronautical ]\Iaps and Ground

Markings. {Not given here.)
Annex G. — Collection and Dissemination of Meteorological

Information. {Not given here.)
Annex H. — Customs.

CONVENTION RELATING TO INTERNATIONAL AIR
NAVIGATION.

CHAPTER I.

GENERAL PRINCIPLES.

Article i.

The contracting States recognise that every State has
complete and exclusive sovereignty in the air space above its
territory and territorial waters.

Article 2.

Each contracting State undertakes in time of peace to

accord freedom of innocent passage above its territory

and territorial waters as well as above the territories

and territorial waters of its Colonies to the aircraft of the

138 APPENDIX I

other contracting States, provided that the conditions
estabHshed in this Convention are observed.

All regulations made by a contracting State as to the
admission over its territory of the aircraft of the other
contracting States shall be appHed without distinction of
nationality.

Article 3.

Each contracting State has the right, for military reasons
or in the interest of public safety, to prohibit the aircraft of
the other contracting States, under the penalties provided
by its legislation and subject to no distinction being made in
this respect between its private aircraft and those of the
other contracting States, from flying over certain areas of its
territory.

If it makes use of this right, it shall publish and notify
beforehand to the other contracting States the location and
extent of the prohibited areas.

Article 4.
Every aircraft which finds itself above a prohibited area
shall, as soon as aware of the fact, give the signal of distress
provided in Paragraph 17 of Annex D and land outside the
prohibited area as near to it as possible and as soon as
possible at one of the aerodromes of the State unlawfully
flown over.

CHAPTER II.

nationality of aircraft.

Article 5.
No contracting State shall, except by a special and tem-
porary authorisation, permit the flight above its territory
of an aircraft which does not possess the nationaUty of a
contracting State.

Article 6.
An aircraft possesses the nationality of the State on the
register of which it is entered, in accordance \vith the pro-
visions of Section I (c) of Annex A.

Article 7.
An aircraft shall not be entered on the register of one of
the contracting States unless it belongs wholly to nationals
of such State.

INTERNATIONAL CONVENTION 139

An incorporated company cannot be the registered owner
of an aircraft unless it possesses the nationahty of the State
in which the aircraft is registered, and unless the president or
chairman of the company and at least two-thirds of the
directors possess the same nationality, and unless the
company fulfils all other conditions which may be pre-
scribed by the laws of each State.

Article 8.
An aircraft cannot be vahdly registered in more than one
State.

Article 9.

The contracting States shall every month exchange among
themselves and transmit to the International Commission
for Air Navigation copies of registrations and of cancellations
of registration which shall have been entered on their official
registers during the preceding month.

Article 10.
All aircraft engaged in international navigation shall bear
their nationality and registration marks as well as the name
and residence of the owner in accordance with Annex A.

CHAPTER III.

certificates of airworthiness and competency.

Article ii.

Every aircraft engaged in international navigation shaU,
in accordance with Annex B, be provided with a certificate
of airworthiness issued or rendered valid by the State whose
nationality it possesses.

Article 12.

The commanding officer, pilots, engineers and other mem-
bers of the operating crew of every aircraft shall, in accord-
ance with Annex E, be provided with certificates of com-
petency and hcences issued or rendered valid by the State
whose nationality the aircraft possesses.

Article 13.

Certificates of airworthiness and of competency and
licences issued or rendered valid by the State whose nation-

140

APPENDIX I

ality the aircraft possesses, in accordance with the regulations
estabUshed by Annex B and Annex E and hereafter by the
International Commission for Air Navigation, shall be
recognised as valid by the other States.

Each State has the right to refuse to recognise for the
purpose of flights within the hmits of and above its own
territory certificates of competency and licences granted to
one of its nationals by another contracting State.

Article 14.

No wireless apparatus shall be carried without a special
licence issued by the State whose nationality the aircraft
possesses. Such apparatus shall not be used except by
members of the crew provided with a special hcence for the
purpose.

Every aircraft used in pubHc transport and capable of
carrying ten or more persons shall be equipped with sending
and receiving wireless apparatus when the methods of em-
ploying such apparatus shall have been determined by the
International Commission for Air Navigation.

This Commission may later extend the obUgation of carry-
ing wireless apparatus to all other classes of aircraft in the
conditions and according to the methods which it may
determine.

CHAPTER IV.

ADMISSION TO AIR NAVIGATION ABOVE FOREIGN TERRITORY.

Article 15.

Every aircraft of a contracting State has the right to cross
another State without landing. In this case it shall foUow
the route fixed by the State over which the flight takes place.
However, for reasons of general security it will be obhged
to land if ordered to do so by means of signals provided in
Annex D.

Every aircraft which passes from one State into another
shall, if the regulations of the latter State require it, land
in one of the ae'rodromes fixed by the latter. Notification of
these aerodromes shall be given by the contracting States to
the International Commission for Air Navigation and by it
notified to all the contracting States.

The estabhshment of international airways shall be subject
to the consent of the States flown over.

INTERNATIONAL CONVENTION 141

Article 16.

Each contracting State shall have the right to reserve
to its national aircraft the carriage of persons and goods for
hire between two points on its own territory.

Article 17.

If a contracting State estabhshes restrictions of the kind
permitted by Article 16, its aircraft may be subjected to the
same restrictions in any other contracting State, even though
the latter State does not itself impose these restrictions on
other foreign aircraft.

Restrictions and reservations provided in Article 16 shall
be immediately pubhshed, and shall be communicated to
the International Commission for Air Navigation which
shall notify them to the States interested.

Article 18.

The passage or transit of any aircraft with or without
landing over or through the territory of any contracting
State, including stoppages reasonably necessary for the
purpose of such transit, shall not entail any seizure or deten-
tion of the aircraft by or on behalf of such State or any person
therein, on the ground that the constitution or mechanism of
the aircraft is an infringement of any patent, design or model
duly granted or registered in such State. Every claim for
an infringement of this kind shall be duly made in the country
of origin of the aircraft.

CHAPTER V.

rules to be observed on departure, on landing, and

WHEN under way.

Article 19.

Every aircraft engaged in international navigation shall
be provided :

{a) With a certificate of registration in accordance mth

Annex A.
{b) With a certificate of airworthiness in accordance with

Annex B.
(c) With certificates and licences of the commanding

officer, pilots and crew in accordance with Annex E.

142 APPENDIX I

(d) If it carries passengers, with a list of their names.

(e) If it carries freight, with bills of lading and manifest.
(/) With log books in accordance with Annex C.

(g) If equipped with wireless, with the special licence
prescribed by Article 14.

Article 20.

The log books shall be kept for two years after the last
entry.

Article 21.

Upon the departure of an aircraft, the authorities of the
country shall have, in all cases, the right to visit the aircraft
and to verify all the documents with which it must be
provided.

Article 22.

Upon the landing of an aircraft, the authorities of the
country shall have, in all cases, the right to visit the aircraft
and to verify all the documents with which it must be
provided.

Article 23.

All persons on board an aircraft shall conform to the laws
and regulations of the State visited.

In case of flight made without landing from frontier to
frontier, all persons on board shall conform to the laws and
regulations of the country flown over, the purpose of which
is to ensure that the passage is innocent.

Legal relations between persons on board an aircraft in
flight are governed by the law of the nationality of the
aircraft.

In case of crime or misdemeanour committed by one
person against another on board an aircraft in flight the
jurisdiction of the State flown over applies only in case the
crime or misdemeanour is committed against a national of
such State and is followed by a landing during the same
journey upon its territory.

The State flown over has jurisdiction : —

(i) With regard to every breach of its laws for the
pubUc safety and its miUtary and fiscal laws ;

(2) In case of a breach of its regulations concerning air
navigation.

INTERNATIONAL CONVENTION 143

Article 24.

Aircraft of the contracting States shall be entitled to the
same measures of assistance for landing, particularly in case
of distress, as national aircraft.

With regard to the salvage of aircraft wrecked at sea the
regulations of the S2veral contracting States as to the salvage
of ships will apply so far as practicable.

Article 25.

Every aerodrome in a contracting State, which upon pay-
ment of charges is open to public use by its national aircraft,
shall likewise be open to the aircraft of all the other contract-
ing States.

In every such aerodrome there shall be a single tariff of
charges for landing and length of stay applicable alike to
national and foreign aircraft.

Article 26.

Each contracting State undertakes to adopt measures to
ensure that every aircraft flying above the limits of its
territory, and that every aircraft under its flag, wherever
it may be, shall comply with the regulations contained in
Annex D of the present Convention. It will punish all
persons who do not obey these regulations.

CHAPTER VI.

PROHIBITED TRANSPORT.

Article 27.

The carriage by aircraft of explosives and of arms and
munitions of war is forbidden in international navigation.
No foreign aircraft shall be permitted to carry such articles
between any two points in the same contracting State.

Article 28.

Each State may prohibit or regulate the carriage or use of
photographic apparatus. Any such regulations shall be at
once notified to the International Commission for Air
Navigation, which shall communicate this information to all
other contracting States.

Article 29.

As a measure of public safety, the carriage of objects other
than those mentioned in Articles 27 and 28 may be subjected

144 APPENDIX I

to restrictions by each contracting State. Any such regula-
tions shall be at once notified to the International Commission
for Air Navigation, which shall communicate this informa-
tion to all the other contracting States.

Article 30.

All restrictions mentioned in Article 29 shall be applied
equally to national and foreign aircraft.

CHAPTER VII.
state aircraft.

Article 31.

The following are deemed to be State aircraft : —

(a) Military aircraft.

{b) Aircraft exclusively employed in State service, such
as posts, customs, police.
Every other aircraft is a private aircraft. All State
aircraft other than military, customs and police
aircraft shall be treated as private aircraft and
as such shall be subject to all the provisions of
the present Convention.

Article 32.

Every aircraft commanded by a person in military service
detailed for the purpose is deemed to be a military aircraft.

Article 33.

Neither the flight of a military aircraft of a contracting
State over the territory of another nor its landing upon such
territory shall be permitted without special authorisation.

In case of such authorisation the military aircraft shall
enjoy in the absence of special stipulation the privileges of
exterritoriaUty which are customarily accorded to foreign
ships of war.

A military aircraft which is forced to land or which is
required or compelled to land shall by reason thereof acquire
no right to exterritoriality.

Article 34.

Agreements between State and State will determine in
what cases police and customs aircraft can be authorised to
cross the frontier. They shall in no case be entitled to the
privileges of exterritoriaUty,

INTERNATIONAL CONVENTION 145
CHAPTER VIII.

INTERNATIONAL COMMISSION FOR AIR NAVIGATION.

Article 35.

There shall be instituted, under the name of the Inter-
national Commission for Air Navigation and as part of the
organisation of the League of Nations, a permanent Com-
mission composed of :

Two Representatives of each of the following States :
The United States of America, France, Italy and Japan :

One Representative of Great Britain and one of each of the
British Dominions and of India ;

One Representative of each of the other contracting
States.

Each of the five States first-named (Great Britain, the
British Dominions and India counting for this purpose as
one State) shall have the least whole number of votes which,
when multipHed by five, will give a product exceeding by at
least one vote the total number of the votes of all the other
contracting States.

AU the States other than the five first-named shall each
have one vote.

The International Commission for Air Navigation shall
determine the rules of its own procedure and the place of
its permanent seat, but it shall be free to meet in such places
as it may deem convenient. Its first meeting shall take
place at Paris. This meeting shall be convened by the French
Government, as soon as a majority of the signatory States
shall have notified to it their ratification of the present
Convention.,

The duties of this Commission are :

(a) To receive proposals from or to make proposals to

any of the contracting States for the modification
or amendment of the provisions of the present
Convention and to notify changes adopted.

(b) To carry out the duties imposed upon it by the

present Article and by Articles 9, 13, 14, 15, 17,
28, 29, and 38 of the present Convention.

(c) To amend the provisions of the technical Annexes.

{d) To collect and communicate to the contracting States
information of every kind concerning international
air navigation.

L

146 APPENDIX I

(6') To collect and communicate to the contracting States
all information relating to wireless, meteorology
and medical science which may be of interest to air
navigation.

(/) To ensure the publication of maps for air navigation
in accordance with the provisions of Annex F.

{g) To give its opinion on questions which the States may
submit for examination.

Any modification of the provisions of any one of the
Annexes may be made by the International Commission for
Air Navigation when such modification shall have been
approved by three fourths of the total possible vote and
shall become effective from the time when it shaU have been
notified by the International Commission for Air Navigation
to all the contracting States.

Any proposed modification of the articles of the present
Convention shall be examined by the International Com-
mission for Air Navigation, whether it originates with one
of the contracting States or with the International Commis-
sion for Air Navigation itself. No such modification shall
be proposed for adoption by the contracting States, unless it
shall have been approved by at least two-thirds of all the
possible votes which could be cast if all the States were
present.

All such modifications of the articles of the Convention
(not of the provisions of the Annexes) must be formally
adopted by the contracting States before they become
effective.

The expenses of organisation and operation of the Inter-
national Commission for Air Navigation shall be borne by
the contracting States in proportion to the number of votes
at their disposal.

The expenses occasioned by the sending of technical
delegations will be borne by their respective States.

CHAPTER IX.

FINAL PROVISIONS.

Article 36.

Each contracting State undertakes to co-operate as far
as possible in international measures concerning :

INTERNATIONAL CONVENTION 147

(a) The collection and dissemination of statistical,
current, and special meteorological information,
in accordance with the provisions of Annex G.

(6) The pubUcation of standard aeronautical maps, and
the establishment of a uniform sj'stem of ground
marks for flying, in accordance with the provisions
of Annex F.

(c) The use of \\dreless in air navigation, the estabHshment
of the necessary wireless stations, and the observa-
tion of international wireless regulations.

Article :^y.

General provisions relative to customs in connection with
international air na\igation are the subject of a special
agreement contained in Annex H to the present Convention.

Nothing in the present Convention shall be construed as
preventing the contracting States from concluding, in con-
formity with its principles, special protocols as between
State and State in respect of customs, police, posts and other
matters of common interest in connection with air navigation.

Article 38.

In the case of a disagreement of two or more States re-
lating to the interpretation of the present Convention, the
question in dispute shall be determined by the Permanent
Court of International Justice to be established by the
League of Nations and until its establishment by arbitration.

If the parties do not agree on the choice of the arbitrators,
they shall proceed as follows : —

Each of the parties shall name an arbitrator, and the two
arbitrators shall meet to name a third. If the arbitrators
cannot agree, the parties shall each name a third State, and
the third States so named shall proceed to designate the
third arbitrator, by agreement or by each proposing a name
and then determining by lot the choice between the two.

In case of the disagreement of two or more contracting
States relating to one of the technical regulations annexed
to the present Convention, the point in dispute shall be
determined by the decision of the International Commission
for Air Navigation by a majority of voles.

In case the difference involves the question whether the
interpretation of the Convention or that of a regulation is
concerned, fmal decision shall be made by arbitration as
provided in the first paragraph of this Article.

L 2

148 APPENDIX I

Article 39.

In case of war, the provisions of the present Convention
do not affect the freedom of action of the contracting States
either as belligerents or as neutrals.

Article 40.

The provisions of the present Convention are completed
by the Annexes A-H, which have the same effect and come
into force at the same time as the Convention itself.

Article 41.

The British Dominions and India are deemed to be States
for the purposes of the present Convention.

Protectorates, or territories administered by the League
of Nations or placed under its control, are. for the purposes
of the present Convention, deemed to form part of the
Protecting or Mandatory States, both as regards their
territory and as regards their nationals.

Article 42.

The present Convention shall come into force as between
any of the contracting States as soon as such States shall
have exchanged ratifications, which shall take place within
one year.

The ratifications shall be deposited in the archives of the
Ministry of Foreign Affairs of the French RepubUc.

Article 43.

The States which have not taken part in the present war
shall be admitted to adhere to the present Convention upon
their simple declaration notified to the Ministry of Foreign
Affairs of the French Repubhc, which shall inform the con-
tracting States of such adherence.

Article 44.

Any State which took part in the present war but which
did not take part in the negotiation of this Convention may
express its desire to adhere to this Convention and may be
admitted to adhere to it, if such State is a member of the
League of Nations or, until January ist, 1923, b}^ a unani-
mous vote of the signatory and adhering States or, after
January ist, 1923, b}^ an affirmative vote comprising at least
three-fourths of the total possible votes of the signatory and
adhering States, the votes of the different States having the

INTERNATIONAL CONVENTION 149

same weight as that provided by Article 35 of this Convention
for the International Commission for Air Navigation.

The ^linistr^'' of Foreign Affairs of the French Republic
shall receive requests for adherence to this Convention under
the conditions provided by this article, shall communicate
them to the contracting States, shall receive the votes of the
contracting States, and shall announce the result of the vote.

Article 45.

The denunciation of the present Convention shaU take
effect \\ith regard only to the State which shall have given
notice of it. Such notice shall not be given before January
ist, 1922 (nineteen hundred and twenty-two), and the
denunciation shaU not take effect until at le?-st one 3^ear
after the giving of notice.

Notices under this article shall be given to the ]\Iinistry
Of Foreign Affairs of the French Republic, which shall com-
municate them to the contracting States.

In faith whereof the delegates have appended their sig-
natures to the present Convention.

Done at Paris, the day of , 1919, in the

EngUsh and French languages which shall be of equal
validity and authority, in a single copy which shaU remain
deposited in the archives of the French Government, and
duly certified copies of which shall be sent, through the diplo-
matic channel, to the contracting States.

ANNEX A.
THE MARKING OF AIRCRAFT.

GENERAL.

(a) The nationahty mark will be represented by capital
letters in Roman characters, e.g.,

France F.

The registration mark shall be represented by a group of
four capital letters ; each group shall contain at least one
vowel, and for this purpose the letter Y shall be considered
as a vowel. The complete group of five letters shall be used
as a call sign of the particular aircraft in making or receiving

I50 APPENDIX I

signals by wireless telegraphy or other methods of communi-
cation, except when opening up communication by means
of visual signals, when the usual methods will be employed.
The nationality and registration marks are assigned in accord-
ance with the table contained in section VIII of this Annex.

(b) On aircraft other than State and commercial, the
registration mark shall be underlined with a black hne.

(c) The entry in the register and the certificate of registra-
tion shall contain a description of the aircraft and shall
indicate the number or other identification mark given to it
by the maker ; the nationality and registration marks
mentioned above ; the usual station of the aircraft ; the
full name, nationality and residence of the owner, and the
date of registration.

{d) All aircraft shall carry affixed to the car or to the
fuselage in a prominent position a metal plate, inscribed with
the names and residence of the owner and the marks of
nationahty and registration.

Certificate of Registration.

{Provisional form.)

Nationality

Nationality mark

Registration marks

Date of registration

I Tourist

Type of aircraft , , -, Commercial

I State

Maker

Maker's Number

Description

Owner's full name

Owner's residence

Owner's nationality

Station of the aircraft

Signature and seal of
authority issuing this
certificate

II

LOCATION OF MARKS.

The nationality and registration marks shall be painted
in black on a white ground in the following manner : —

INTERNATIONAL CONVENTION 151

(a) Flying Machines. — The marks shall be painted once

on the lower surface of the lower main planes and
once on the upper surface of the top main planes,
the top of the letters to be towards the leading edge.
They shall also be painted along each side of the
fuselage between the main-planes and the tail
planes. In cases where the machine is not provided
with a fuselage the marks shall be painted on the
nacelle.

(b) Airships and Balloons. — In the case of airships the

marks shall be painted near the maximum cross

section on both sides and on the upper surface

equidistant from the letters on the sides.

In the case of balloons the marks shall be painted twice

near the maximum horizontal circumference, as far as

possible from one another.

In the case both of airships and balloons the side marks
shall be visible both from the sides and ground.

Ill

ADDITIONAL LOCATION OF NATIONALITY MARKS.

(a) Flying Machines and Airships. — ^The nationality
mark shall also be painted on the left and right sides of the
lower surface of the lowest tail planes or elevators and also
on the upper surface of the top tail planes or elevators,
whichever is the larger. It shall also be painted on both
sides of the rudder, or on the outer sides of the outer rudders
if more than one rudder is fitted.

(b) Balloons. — The nationality mark shall be painted on
the basket.

IV

MEASUREMENTS OF NATIONALITY AND REGISTRATION MARKS.

(a) Flying Machines. — The height of the marks on the
main planes and tail planes respectively shall be equal to
four-fifths of the chord, and in the case of the rudder shall
be as large as possible. The height of the marks on the fusel-
age or nacelle shall be four-fifths of the depth of narrowest
part of that portion of the fuselage or nacelle on which the
marks are painted.

(b) Airships and Balloons. — In the case of airships, the
nationality marks painted on the tail plane shall be equal
in heiglit to four-fifths of the chord of the tail ])lane and in
the case of the rudder the marks shall be as large as possible.

152 APPENDIX I

The height of the other marks shall be equal to at least one-
twelfth of the circumference at the maximum transverse
cross section of the airship.

In the case of balloons the height of the nationaUty mark
shall be four-fifths of the height of the basket, and the
height of the other marks shall be equal to at least one-
twelfth of the circumference of the balloon.

(c) General — In the case of all aircraft the letters of the
nationaUty and registration marks need not exceed 2*5
metres [8 feet] * in height.

V

MEASUREMENT, TYPE OF LETTERS, ETC.

[a) The width of the letters shall be two-thirds of their
height and the thickness shall be one-sixth of their height.
The letters shall be painted in plain block type and shall be
uniform in shape and size. A space equal to half the width
of the letters shall be left between the letters.

{h) In the case of underhned letters the thickness of the
Hne shall be equal to the thickness of the letter and the space
between the bottom of the letters and the hne shall be equal
to the thickness of the Hne.

VI

SPACING BETWEEN NATIONALITY AND REGISTRATION MARKS.

Where the nationaUty and registration marks appear
together, a hyphen of a length equal to the width of one of
the letters shaU be painted between the nationality mark and
registration mark.

VII

MAINTENANCE.

The nationaUty and registration marks shaU be displayed
to the best possible advantage, taking into consideration
the constructional features of the aircraft. The marks
must be kept clean and \dsible.

VIII

TABLE OF MARKS.

The nationaUty mark of the State named below appUes
to the aircraft of its Dominions, Colonies, Protectorates,

* Air Navigation Regulations, 1919, Schedule IV, paragraph 4.

INTERNATIONAL CONVENTION 153

Dependencies, or of countries of which it is the Mandatory

State.

Country.

United States of America

British Empire

France

Italy

Japan

Nationality
Mark.

Bolivia

Cuba

Portugal

Roumania

Uruguay

Czecho-SIovakia

Guatemala

Liberia

Brazil

Poland ,

Belgium

Peru

China

Honduras

Serbia-Croatia-Slavonia

Haiti

Siam

Ecuador

Greece

Panama

Hedjaz

N
G
F
I
J

C
C
C

c
c

L
L
L
P
P
O
O
X
X
X
H
H
E
S

s

A

Registration
Marks.

/'AH combinations made in

accordance with the pro-
visions of Section I (a)

of this Annex, using a

group of 4 letters out of

the 26 of the alphabet,

each group containing

at least one vowel, e.g. :
I ADC J, PURN.
All combinations made

with B as first letter.
All combinations made

with C as first letter. •
All combinations made

with P as first letter.
All combinations made

with R as first letter.
All combinations made

with U as first letter.
All combinations made

with B as first letter.
All combinations made

with G as first letter.
All combinations made

with L as first letter.
All combinations made

with B as first letter.
All combinations made

with P as first letter.
All combinations made

with B as first letter.
All combinations made

with P as first letter.
All combinations made

with C as first letter.
AH combinations made

with H as first letter.
All combinations made

with S as first letter.
All combinations made

with H as first letter.
All combinations made

with S as first letter.
All combinations made

with E as first letter.
All combinations made

with G as first letter.
All combinations made

with P as first letter.
All combinations made

with H as first letter.

154 APPENDIX I

ANNEX B.

CERTIFICATES OF AIRWORTHINESS.

The following main conditions govern the issue of certi-
ficates of airworthiness : —

1. The design of the aircraft in regard to safety shall

conform to certain standard minimum require-
ments.

2. A satisfactory demonstration must be made in flying

trials of the actual flying qualities of the type of
aircraft examined, provided that machines subse-
quently manufactured which conform to the
approved type need not be subject to such trials.
The trials shall conform to certain standard mini-
mum requirements.

3. The construction of every aircraft with regard to work-

manship and materials must be approved. The
control of the construction and of the tests shall be
in accordance with certain standard minimum
requirements.

4. The aircraft must be equipped with suitable instruments

for safe navigation.

5. The standard minimum requirements of paragraphs

I to 3 inclusive shaU be fixed bj^ the International
Commission for Air Navigation. Until they have
been so fixed each contracting State shall determine
the regulations under which certificates of air-
worthiness shall be granted or remain valid.

ANNEX C.

LOG BOOKS.
I

JOURNEY LOG.

This shaU be kept for all aircraft and shall contain the
following particulars :■ —

(a) Category to which the aircraft belongs ; its nationality
and registration marks ; the fuU name, nationality
and residence of the owner ; name of maker and
the carr5ang capacity of the aircraft.

INTERNATIONAL CONVENTION 155

(b) 111 addition for each journey —

(i) The names, nationaUty and residence of each of the

members of the crew,
(ii) The place, date, and hour of departure, the route

followed, and all incidents en route including

landings.

II

AIRCRAFT LOG.

This is obligatory only in the case of aircraft carrying
passengers or goods for hire, and shall contain the following
particulars : —

(a) Category to which the aircraft belongs ; its nationality
and registration marks ; the full name, nationality
and residence of the owner ; name of maker and
the carrying capacity of the aircraft.

(6) Type and series number of engine ; type of propeller
showing number, pitch, diameter and maker's
name.

(c) Type of wireless apparatus fitted.

(d) Table showing the necessary rigging data for the

information of persons in charge of the aircraft
and of its maintenance.
{e) A fully detailed engineering record of the life of the
aircraft, including all acceptance tests, overhauls,
replacements, repairs and all works of a like nature.

Ill

ENGINE LOG.

This is obligatory only in the case of engines installed in
aircraft carrjdng passengers or goods for hire, and in such
cases a separate log book shall be kept for each engine and
shall always accompany the engine. It shall contain the
following particulars : — ■

(a) Type of engine, scries number, maker's name, power,
normal maxinuim revolutions of engine, date of
production and first date put into service.

(h) Registration mark and type of aircraft in which the
engine has been instailcd.

156 APPENDIX I

(c) A fully detailed engineering record of the life of the
engine, including all acceptance tests, hours run,
overhauls, replacements, repairs, and all work
of a Hke nature.

IV

SIGNAL LOG.

This is obligatory only in the case of aircraft carrying
passengers or goods for hire, and shall contain the following
particulars : —

(a) Category to which the aircraft belongs ; its nationality

and registration marks ; the full name, nationality
and residence of the owner.

(b) Place, date, and time of the transmission or reception

of any signal.

(c) Name or other indication of the person or station to

whom a signal is sent or from whom a signal is
received.

V

INSTRUCTIONS FOR USE OF LOG BOOKS.

(a) The constructor should fill in and sign the original

entries in the log books, as far as he is in a position
to do so. Subsequent entries should be made
and signed by the pilot or other competent person.

(b) A copy of the certificate of airworthiness should be

kept in the pocket at the end of the aircraft log
book.

(c) All entries to be in ink, except in the case of journey

and signal log books ; the entries for these may

be made in pencil in a rough note book, but should

be entered in ink in the log book every 24 hours.

In the event of any oiificial investigation the rough

note book may be called for.
{d) No erasures should be made in, nor pages torn from,

any log book.
(e) A copy of these instructions should be inserted in

each log book.

INTERNATIONAL COm^ENTION 157

ANNEX D.

RULES AS TO LIGHTS AND SIGNALS.
RULES OF THE AIR.

DEFINITIONS.

The word " aircraft " comprises all balloons, whether
fixed or free, kites, airships, and flying machines.

The word " balloon," either fixed or free, shall mean an
aircraft using gas lighter than air as a means of support,
and having no means of propulsion.

The word " airship " shall mean an aircraft using gas
lighter than air as a means of support, and having means
of propulsion.

The words " flying machine " shall mean all aeroplanes,
seaplanes, flying boats, or other aircraft heavier than air,
and having means of propulsion.

An airship is deemed to be " under way " within the mean-
ing of these rules when it is not made fast to the ground
or any object on land or water.

RULES AS TO LIGHTS.

The word " visible " in these rules when applied to lights
shall mean visible on a dark night with a clear atmosphere.
The angular limits laid down in these rules as shown in the
sketch (attached) * shall be determined when the aircraft is
in its normal attitude for flying on a rectilinear horizontal
course.

1. The rules concerning lights shall be complied with in
all weathers from sunset to sunrise, and during such time
no other Hghts which may be mistaken for the prescribed
lights shall be exhibited. The prescribed navigation lights
must not be dazzling.

2. A flying machine, when in the air or manoeuvring on

* The sketch, not reproduced here, illustrates the arc of visibility of each
of the lights referred to in paragraph 2 below.

158 APPENDIX I

land or water under its own power, shall carry the following
lights : —

(a) Forward, a white Hght visible in a dihedral angle

of 220 degrees bisected by a vertical plane through
the Hne of flight, and of such a character as to be
visible at a distance of at least 8 kilometres [5
miles].*

(b) On the right side, a green light so constructed and

fixed as to show an unbroken light between two
vertical planes whose dihedral angle is no degrees
when measured to the right from dead ahead, and
of such a character as to be visible at a distance of
at least 5 kilometres [3 miles].

(c) On the left side, a red light so constructed and fixed

as to show an unbroken Hght between two vertical
planes whose dihedral angle is no degrees when
measured to the left from dead ahead, and of such
a character as to be visible at a distance of at least
5 kilometres [3 miles].

{d) The said green and red side lights shall be fitted so
that the green light shall not be seen from the
left side, nor the red Hght from the right side.

(e) At the rear, and as far aft as possible, a white Hght
shining rearwards and visible in a dihedral angle of
140 degrees bisected by a vertical plane through
the line of flight and of such a character as to be
visible at a distance of at least 5 kilometres.

(/) In the case where, in order to fulfil the above conditions,
the single light has to be replaced by several Hghts,
the field of visibility of each of these lights should
be so limited that only one can be seen at a time.

3. The Rules determined for the Hghting of flying machines
shall apply to airships subject to the foUowing modifica-
tions : —

(a) All Hghts shaU be doubled ; the forward and aft
Hghts vertically, and the side lights horizontally
in a fore and aft direction.

{b) Both Hghts of each pair forward and aft shaU be
visible at the same time. The distance between
the Hghts comprising a pair shall not be less than
2 metres [6 feet].

* The distances in square brackets are those prescribed in Schedule VII
of the British Air Navigation Regulations, 1919.

INTERNATIONAL CON\^ENTION 159

4. An airship, when being towed, shall carry the hghts
specified in paragraph 3, and, in addition, those specified
in paragraph 6 for airships not under control.

5. [a) A flying machine, or airship, when on the surface
of the water, and when not under control, that is to say,
not able to manceuvre as required by the Regulations for
the Prevention of Colhsions at Sea, shall carry two red
hghts not less than two metres [6 feet] apart, one over the
other, and of such a character as to be visible all around the
horizon at a distance of at least three kilometres [2 miles].

{b) The aircraft referred to in this paragraph, when not
making way through the water, shall not carry the side
lights, but when making way shall carr3^ them.

6. An airship which from any cause is not under control,
or which has voluntarily stopped her engines, shall, in
addition to the other specified hghts, display conspicuously
two red hghts, one over the other, not less than 2 metres
[6 feet] apart, and constructed to show a hght in all direc-
tions, and of such a character as to be visible at a distance
of at least 3 kilometres [2 miles].

By day an airship, when being towed, which from any
cause is not under control, shall display conspicuously two
black balls or shapes, each 60 cms. [2 feet] in diameter,
placed one over the other not less than 2 metres apart.

An airship moored, or under way but having voluntarily
stopped its engines, shall display conspicuously by day a
black ball or shape, 60 cms. [2 feet] in diameter, and shall
be treated by other aircraft as being not under control.

7. A free balloon shall carry one bright white light below
the car at a distance of not less than 5 metres [20 feet], and
so constructed as to show an unbroken light in all directions,
and of such a character as to be visible at a distance of at
least 3 kilometres [2 miles].

8. A fixed balloon shall carry in the same position as the
white light mentioned in paragraph 7, and in lieu of that
light, three lights in a vertical line one over the other, not
less than 2 metres [6 feet] apart. The highest and lowest
of these hghts shall be red, and the middle hght shall
be white, and they shall be of such a character as to be
visible in all directions at a distance of at least 3 kilometres
[2 miles].

In addition, the mooring cable shall have attached to it
at intervals of 300 metres [1,000 feet], measured from the
basket, groups of three lights similar to those mentioned
in the preceding paragraph. In addition, the object to

i6o APPENDIX 1

which the balloon is moored on the ground shall have a
similar group of Hghts to mark its position.

By day the mooring cable shall carry in the same position
as the group of lights mentioned in the preceding paragraph,
and in Ueu thereof, tubular streamers not less than 20 cms.
[8 inches] in diameter and 2 metres [6 feet] long, and marked
with alternate bands of white and red, 50 cms. [18 inches]
in width.

9. An airship when moored near the ground shaU carry
the lights specified in paragraphs 2 (a) and {e) and 3.

In addition, if moored but not near the ground, the air-
ship, the mooring cable, and the object to which moored,
shall be marked in accordance with the provisions of para-
graph 8, whether by day or by night.

Sea anchors or drogues used by airships for mooring
purposes at sea are exempt from this regulation.

10. A flying machine stationary upon the land or water
but not anchored or moored shall carry the lights specified
in paragraph 2.

11. In order to prevent collisions with surface craft : —

{a) A flying machine when at anchor or moored on the
water shall carry forward, where it can best be seen,
a white light, so constructed as to show an unbroken
light visible all round the horizon at a distance of
at least 2 kilometres [i mile].

{b) A flying machine of 50 metres [150 feet] or upwards
in length, when at anchor or moored on the water,
shall in the forward part of the flying machine
carry one such light, and at or near the stern of the
flying machine, and at a height that it shall not be
less than 5 metres [15 feet] lower than the forward
light, another such fight.

The length of a flying machine shall be deemed
to be the overall length.

(c) Fhdng machines of 50 metres [150 feet] or upwards
in span, when at anchor or moored in the water,
shall in addition carry at each lower wing tip one
Hght as specified in {a) of this paragraph.

The span of a flying machine shall be deemed
to be the maximum lateral dimension.

12. In the event of the failure of any of the lights specified
under these rules to be carried by aircraft flying at night, such
aircraft shall land at the first reasonably safe opportunity.

13. Nothing in these rules shall interfere with the opera-

INTERNATIONAL CONVENTION i6i

tion of any special rules made by the Government of any
State \vith respect to the additional station or signal lights
for two or more military aircraft, or for aircraft in formation,
or with the exhibition of recognition signals adopted by
owners of aircraft which have been authorised by their
respective Governments and duly registered and published.

II

RULES AS TO SIGNALS.

14. {a) Aircraft wishing to land at night on aerodromes
having a ground control shall before landing : —

Fire a green Very's light or flash a green lamp, and in
addition shall make by international Morse code the letter-
group forming its call-sign.

{b) Permission to land will be given by the repetition
of the same call-sign from the ground, followed by : —

A green Very's light or flashing a green lamp.

15. The firing of a red Very's light or the display of a
red flare from the ground shall be taken as an instruction
that aircraft are not to land.

16. An aircraft compelled t(5 land at night shall before
landing fire a red Very's fight or make a series of short flashes
with the navigation lights.

17. WTien an aircraft is in distress and requires assistance,
the following shall be the signals to be used or displayed,
either together or separately : —

(a) The international signal, SOS, by means of visual

or wireless signals.
{b) The international code flag signal of distress, indicated

by NC.
(c) The distant signal, consisting of a square flag having

either above or below it a ball, or anything resem-

bUng a bafl.
{d) A continuous sounding with any sound apparatus,
(e) A signal, consisting of a succession of white Very's

lights fired at short intervals.

18.* To warn an aircraft that it is in the vicinity of a
prohibited zone and should change its course, the following
signals shall be used : —

{a) By day : three discharges, at intervals of ten seconds,
of a projectile showing on bursting white smoke,

• Paragraphs 18 and 10 flo not appear in the British Air Navigation
Regulations issued on ist May, 1919.

M

t62 APPENDIX I

the location of the bursts indicating the direction
the aircraft should follow.
(&) By night : three discharges, at intervals of ten seconds,
of a projectile showing on bursting white stars,
the location of the bursts indicating the direction
the aircraft should follow.

19.* To require an aircraft to land, the following signals
shall be used : —

(a) By day : three discharges, at intervals of ten seconds,

of a projectile showing on bursting black or yellow
smoke.

(b) By night : three discharges, at intervals of ten seconds,

of a projectile showing on bursting red stars or
lights.

In addition, when necessary to prevent the landing of
aircraft other than the one ordered, a searchlight which shall
be flashed intermittently shall be directed towards the air-
craft whose landing is required.

20. t {a) In the event of fog or mist rendering aerodromes
invisible, their presence may be indicated by a balloon
acting as an aerial buoy and/or other approved means.

(b) In fog, mist, falling snow or heavy rainstorm, whether
by day or night, an aircraft on the water shall make the
following sound signals with a sound apparatus : —

1. If not anchored or moored, a sound at intervals of not

more than two minutes, consisting of two blasts
of about five seconds duration with an interval
of about one second between them ;

2. If at anchor or moored, the rapid ringing of an efficient

beU or gong for about five seconds, at intervals of
not more than one minute.

Ill

RULES OF THE AIR.

21. Fl5dng machines shall always give way to balloons,
fixed or free, and to airships. Airships shall always give
way to balloons, whether fixed or free.

t Sub-paragraph (a) does not appear in the British Air Navigation
Regulations issued on ist May, 1919 ; and the provision corresponding to
sub-paragraph {b). 2, speaks of a " blast " instead of a gong or bell.

INTERNATIONAL CONVENTION i6

J

22. An airship when not under its own control shall be
classed as a free balloon.

23.1 Risk of collision can, when circumstances permit,
be ascertained by carefully watching the compass bearing
and angle of elevation of an approaching aircraft. If
neither the bearing nor the angle of elevation appreciably
changes, such risk shall be deemed to exist.

24. J The term " risk of colHsion " shall include risk of
injury due to undue proximity of other aircraft. Every
aircraft that is required by these rules to give way to another
to avoid coUision shall keep a safe distance, having regard
to the circumstances of the case.

25. WTiile observing the rules regarding risk of coUision
contained in paragraph 24, a motor-driven aircraft must
always manceuvre according to the rules contained in the
following paragraphs, as soon as it is apparent that, if it
pursued its course, it would pass at a distance of less than
200 metres [200 j^ards] from any part of another aircraft.

26. WTien two motor-driven aircraft are meeting end on
or nearly end on each shaU alter its course to the right.

27. \Vlien two motor-driven aircraft are on courses which
cross, the aircraft which has the other on its own right side
shall keep out of the way of the other.

28. An aircraft overtaking any other shall keep out of the
way of the overtaken aircraft by altering its own course
to the right, and must not pass by diving.

Every aircraft coming up with another aircraft from any
direction more than no degrees from ahead of the latter,
i.e., in such a position with reference to the aircraft which
it is overtaking that at night it would be unable to see
either of that aircraft's side lights, shall be deemed to be
an overtaking aircraft, and no subsequent alteration of the
bearing between the two aircraft shall make the overtaking
aircraft a crossing aircraft within the meaning of these
rules, or relieve it of the duty of keeping clear of the over-
taken aircraft until it is finally past and clear.

As by day the overtaking aircraft cannot always know with
certainty whether it is forward or abaft the direction men-
tioned above from the other aircraft, it should, if in doubt,
assume that it is an overtaking aircraft and keep out of
the way.

29. Where by any of these rules one of the two aircraft
is to keep out of the way, the other shall keep its course

J Paragraphs 23 and 24 do not appear in the British Air Navigation
Regulations issued ist May, 1919.

M 2

1 64 APPENDIX I

and speed. When, in consequence of thick weather or other
causes, the aircraft having the right of way finds itself so
close that colUsion cannot be avoided by the action of the
giving-way aircraft alone, it shall take such action as will
best aid to avert collision.

30. Every aircraft which is directed by these rules to keep
out of the way of another aircraft shall, if the circumstances
of the case admit, avoid crossing ahead of the other.

31. In following an officially recognised air route every
aircraft, when it is safe and practicable, shall keep to the
right side of such route.

32. All aircraft on land or sea about to ascend shall not
attempt to " take off " until there is no risk of collision
with aUghting aircraft.

33. Every aircraft in a cloud, fog, mist or other conditions
of bad visibility shall proceed with caution, having careful
regard to the existing circumstances and conditions.

34. In obeying and construing these rules due regard
shall be had to all dangers of navigation and colUsion and
to any special circumstances which may render a departure
from the above rules necessary in order to avoid immediate
danger.

IV

BALLAST.

35. The dropping of ballast other than fine sand or
water from aircraft in the air is prohibited.

RULES FOR AIR TRAFFIC ON AND IN THE
VICINITY OF AERODROMES.

36. At every aerodrome there shall be a flag hoisted in
a prominent position which shall indicate that if an air-
craft about to land or leave finds it necessary to make a
circuit, or partial circuit, such circuit shall be left-handed
(anti-clockwise) or right-handed (clockwise), according to
the colour of the flag. A white flag shall indicate a right-
handed circuit, i.e., that the flag is to be kept to the right side
or side which carries the green light of the aircraft, and a
red flag shall indicate a left-handed circuit, i.e., that the red
flag is to be kept to the left side or side which carries the
red Ught of the aircraft.

INTERNATIONAL CONVENTION 165

37. When an aeroplane starts from an aerodrome it shall
not turn until 500 metres [500 yards] distance from the
nearest point of the aerodrome, and the tm^ning then must
conform with the regulations provided in the preceding
paragraph.

38. All aeroplanes flying between 500 and 1,000 metres
[500 and 1,000 yards] distance from the nearest point of an
aerodrome shall conform to the above mentioned circuit law,
unless such aeroplanes are flying at a greater height than
2,000 metres [6,500 feet].

39. Acrobatic landings are prohibited at aerodromes of
contracting States used for international aerial traffic.
Aircraft are prohibited from engaging in aerial acrobatics
within a distance of at least 2,000 metres [2,000 yards] from
the nearest point of such aerodromes.

40. At every recognised aerodrome the direction of the
wind shall be clearly indicated by one or more of the recog-
nised methods, e.g., landing tee, conical streamer, smudge
fire, etc.

41. Ever^^ aeroplane when taking off or alighting on a
recognised aerodrome used for international air traffic shall
do so up-wind, except when the natural conditions of the
aerodrome do not permit.

42. In the case of aeroplanes approaching aerodromes for
the purpose of landing, the aeroplane flying at the greater
height shall be responsible for avoiding the aeroplane at the
lower height, and shall as regards landing observe the rules
of paragraph 28 for passing.

43. Aeroplanes showing signals of distress shall be given
free way in attempting to make a landing on an aerodrome.

44. Every aerodrome shall be considered to consist of
three zones when looking up-wind. The right-hand zone
shall be the taking-off zone, and the left-hand shall be the
landing zone. Between these there shall be a neutral zone.
An aeroplane when landing should attempt to land as near
as possible to the neutral zone, but in any case on the left
of any aeroplanes which have already landed. After slow-
ing up or coming to a stop at the end of its landing run, an
aeroplane will immediately taxi into the neutral zone.
Similarly an aeroplane when taking off shall keep as far as
possible towards the right of the taking-off zone, but shall
keep clear to the left of any aeroplanes which are taking off
or about to take off.

45. No aeroplane shall commence to take off until the
preceding aeroplane is clear of the aerodrome.

i66 APPENDIX I

46. The above rules shall apply equally to night landings
on aerodromes, when the signals shall be as follows : —

(a) A red light shall indicate a left-hand circuit, and a
green light shall indicate a right-hand circuit.
(See paragraph 36.) The right-hand zone will be
marked by white lights placed in the position of
an " L," and the left-hand zone will be similarly
marked. The " L's " shall be back to back, that
is to say, the long sides of the " L's " will indicate
the borders of the neutral zone. The direction of
landing shall invariably be along the long arm of
the " L," and towards the short arm. The hghts of
the " L's " should be so placed that the lights
indicating the top extremity of the long arm shall
be the nearest point on the aerodrome upon which
an aeroplane can safely touch ground. The lights
indicating the short arm of the " L " should
indicate the Umit of safe landing ground for the
aeroplanes, that is, that the aeroplane should not
over-run the short arm. (See diagram A.)*

(6) Where it is desired to save lights and personnel the
following system may be used : —

Two hghts shall be placed on the windward side
of the aerodrome to mark the limits of the neutral
zone mentioned in paragraph 44, the line joining
the Ughts being at right angles to the direction of
the wind. Two more Hghts shall be placed as
follows : one on the leeward side of the aerodrome
on the line drawn parallel to the direction of the
wind and passing midway between the two lights
on the windward side, to show the extent of the
aerodrome and the direction of the wind, and the
other shall be placed midway between the two lights
marking the Umits of the neutral zone. (See
diagram B.)*

Additional lights may be symmetrically put along the
boundary lines of the neutral zone, and on the ends of the
taking-off and landing zones on the line through the three
lights on the windward side.

47. No fixed balloon, kite, or moored airship shall be
elevated in the vicinity of any aerodrome without a special

* The diagrams referred to in paragraph 46 are not reproduced ; they
illustrate the lay-out of an aerodrome according to the alternative systems
described in the paragraph.

INTERNATIONAL CONVENTION 167

authorisation, except in the cases provided for in para-
graph 20.

48. Suitable markings shall be placed on all fixed obstacles
dangerous to flying within a zone of 500 metres [500 yards]
of all aerodromes,

VI

GENERAL.

49. Every aircraft manoeuvring under its own power on
the water shall conform to the Regulations for Preventing
Collisions at Sea, and for the purposes of these regulations
shall be deemed to be a steam- vessel, but shall carry the hghts
specified in the preceding rules, and not those specified for
steam-vessels in the Regulations for Preventing ColHsions
at Sea, and shall not use, except as specified in paragraphs
17 and 20 above, or be deemed to hear the sound signals
specified in the above-mentioned Regulations.

50. Nothing in these rules shall exonerate any aircraft,
or the owner, pilot or crew thereof, from the consequences
of any neglect to carry lights or signals, or of any neglect to
keep a proper look-out, or of the neglect of any precaution
which may be required b}'' the ordinary practice of the air,
or by the special circumstances of the case.

51. Nothing in these rules shall interfere with the opera-
tion of any special rule or rales duly made and published
relative to navigation of aircraft in the immediate vicinity
of any aerodrome or other place, and it shall be obligatory
on all owners, pilots, or crews of aircraft to obey such rules.

ANNEX E.

MINIMUM QUALIFICATIONS NECESSARY FOR OB-
TAINING CERTIFICATES AS PILOTS AND
NAVIGATORS.

I

CERTIFICATES FOR PILOTS OF FLYING MACHINES.

(A.) Private Pilot's Flying Certificate
(not valid for purposes of public transport).

I. Practical Tests :

In eacli practical test the candidate must be alone in the
flying machine.

1 68 APPENDIX I

[a) Test for Altitude and Gliding Flight. A flight without
landing during which the pilot shall remain for at least an
hour at a minimum altitude of 2,000 metres above the point
of departure. The descent shall finish with a glide, the
engines cut off at 1,500 metres above the landing ground.
The landing shall be made without restarting the engine and
within 150 metres or less of a point fixed beforehand by the
official examiners of the test.

(b) Tests of Skill. A flight without landing around two
posts (or buoys) situated 500 metres apart making a series
of five figure-of-eight turns, each turn reaching one of the
two posts (or buoys). This flight shall be made at an altitude
of not more than 200 metres above the ground (or water)
without touching the ground (or water). The landing shall
be effected by :

(i) Finally shutting off the engine or engines at latest
when the aircraft touches the ground (or water).

(ii) Finally stopping the flying machine within a distance
of 50 metres from a point fixed by the candidate
before starting.

2. Special Requirements :

Knowledge of Rules as to Lights and Signals, and Rules of
the Air. Rules for Air Traffic on and in the Vicinity of
Aerodromes. A practical knowledge of international air
legislation.

(B.) Pilot's Flying Certificate for Flying Machines
USED FOR Purposes of Public Transport.

I. Practical Tests :

In each practical test the candidate must be alone in the
flying machine.

(a) The tests for altitude and gliding flight and for skill
are the same as those required for a private pilot's flying
certificate. Candidates already in possession of the latter
certificate are not required to pass these tests again.

(b) Test of endurance consisting of a cross-country or
oversea flight of at least 300 kilometres, after which the
final landing shall be made at the point of departure. This
flight shall be made in the same flying machine within eight
hours. It shall include two obligatory landings (during

INTERNATIONAL CONVENTION 169

which the machine must come to rest) , which shall not be
at the point of departure, but which shall be fixed by the
judges.

At the time of departure the candidate shall be informed
of his course and furnished \\'ith the appropriate map. The
judges will decide whether the course has been correctly
followed.

(c) Night Flight. A thirty minutes' flight made between
two hours after sunset and two hours before sunrise, at a
height of at least 500 metres.

2. Technical Examination :

After satisfactory practical tests have been passed,
candidates will, when summoned, submit themselves to
examination on

{a) Flying Machines :

Theoretical knowledge of the resistance of the air as con-
cerns its effects on wings and tail planes, rudders, elevators,
and propellers ; functions of the different parts of the
machine and of their controls.

Assembling of flying machines and their different parts.

Practical tests on rigging.

{h) Engines :

General knowledge of internal combustion engines, in-
cluding functions of the various parts ; a general knowledge
of the construction, assembUng, adjustment, and charac-
teristics of aero-engines.

Causes of the faulty running of engines and of breakdown.

Practical te ts in running repairs.

(c) Special Requirements :

Knowledge of Rules as to Lights and Signals and Rules
of the Air, and Rules for Air Traffic on and in the Vicinity
of Aerodromes.

Practical knowledge of the special conditions of air traffic
and of international air legislation.

Map reading, orientation, location of position, elementary
meteorology.

REMARKS.

The practical tests shall be carried out within a maximum
period of one month.

170 APPENDIX I

They may be carried out in any order, and each may be
attempted twice. They shall be witnessed by properly
accredited examiners, who \\dll forward the official reports
to the proper authorities.

The official reports will give the different incidents,
especially those of landings. The candidates shall furnish
before each test proper identity forms.

A barograph shall be carried on all practical tests, and the
graph, signed by the examiners, shall be attached to their
report.

Pilots who hold the military pilot's certificate shall be
entitled to the private pilot's flying certificate, but in order
to obtain the pilot's flying certificate for purposes of Public
Transport it will be necessary to pass the technical conditions
for navigation as required by B (2) (c).

II

CERTIFICATES FOR PILOTS OF BALLOONS.

1. Practical Tests :

The candidate must have completed the following certified
ascents : —

1. By day : 3 ascents under instruction.

I ascent in control under supervision.
I ascent alone in the balloon.

2. By night : i ascent alone in the balloon.

Each ascent shall be of at least two hours' duration.

2. Theoretical Tests :

Elementary aerostatics and meteorology.

3. Special Requirements :

General knowledge of a balloon and its accessories ;
inflation ; rigging ; management of an ascent ; instru-
ments ; precautions against cold and high altitudes.

Knowledge of Rules as to Lights and Signals and Rules
of the Air ; Rules for Air Traffic on and in the Vicinity of
Aerodromes.

Practical knowledge of international air legislation.
Map reading and orientation.

INTERNATIONAL CONVENTION 171

III

CERTIFICATES FOR AIRSHIP OFFICER PILOTS.

Every airship officer pilot shall have qualified as pilot of
a free balloon.

There shall be three classes of airship officer pilots.

The holder of a first-class certificate is qualified to com-
mand any airship.

The holder of a second-class certificate is qualified to
command airships under 20,000 cubic metres capacity.

The holder of a third-class certificate is quaUfied to
command airships under 6,000 cubic metres capacity.

All mihtary and naval airship officer pilots are entitled
to a third-class certificate.

All mihtary and naval airship officer pilots who have
commanded airships over 6,000 cubic metres capacity are
entitled to a first-class certificate.

QUALIFICATIONS FOR THIRD-CLASS CERTIFICATE.

Practical Tests :

{a) Twenty certified ffights (three of which shall be by
night) in an airship, each flight being of at least one hour's
duration. In at least four of these ffights the candidate
must have handled the airship himself, under the super-
vision of the commanding officer of the airship, including
ascent and landing.

(6) One cross-country ffight on a predetermined course
of at least 100 kilometres, terminating with a night landing,
and made with a duly authorised inspector on board.

Theoretical Examination :

Aerostatics and meteorology (density of gases, laws of
Mariotte and of Gay-Lussac) ; barometric pressure, Archi-
medes' principle ; confinement of gases ; interpretation
and use of meteorological information and of weather
charts.

Physical and chemical properties of light gases, and of
materials used in the construction of airships.

General theory of airships.

Dynamic properties of moving bodies in air.

172 APPENDIX I

General Knowledge :

Elementary knowledge of internal combustion engines.

Elementary navigation ; use of the compass ; location
of position.

Inflation ; stowage ; rigging ; handling ; controls and
instruments.

QUALIFICATIONS FOR SECOND-CLASS CERTIFICATE.

Practical Tests :

To be eligible for a second-class certificate a candidate
must be holder of a third-class certificate and have at least
four months' service as a third-class officer on an airship ;
and also have completed at least ten flights as third-class
officer on an airship of capacity above 6,000 cubic metres,
in which he has handled the airship himself, including ascent
and landing, under the supervision of the commanding
officer of the airship.

Theoretical Examination :

Advanced knowledge of the subjects required for the third
class certificate.

QUALIFICATIONS FOR FIRST-CLASS CERTIFICATE.

Practical Tests :

To be eligible for a first-class certificate a candidate must
be holder of a second-class certificate, have at least two
months' active service as a second-class officer on an airship,
and also have completed at least five flights as second-class
officer of an airship of capacity above 20,000 cubic metres,
in which he has handled the airship himself, including ascent
and landing, under the supervision of the commanding
officer of the airship. Each flight must be at least of one
hour's duration with a minimum of fifteen hours for the
five flights.

Theoretical Examination :
As required for a second-class certificate.

IV

CERTIFICATE FOR NAVIGATORS.

Aircraft used for public transport carrying more than ten
passengers and having to make a continuous flight between

INTERNATIONAL CONVENTION 173

two points more than 500 kilometres apart overland, or a
night flight, or a flight between two points more than 200
kilometres apart over sea, must have on board a navigator
who has been granted a certificate as such after passing a
theoretical and practical examination in the following : —

1. Practical Astronomy :

True and apparent movements of the celestial bodies.
Different aspects of the celestial sphere.

Hour angles, mean, true, and astronomical time.

Shape and dimensions of the earth.

Star globes and maps.

Method of determining latitude, longitude, time, and
azimuth.

2. Navigation :

Maps and charts — how to read them.

Compass ; magnetic meridian ; variation, deviation.

Courses, bearings, and their corrections.

Compensation of compasses (technical and practical).

Calculations of azimuth.

Fhght by dead reckoning, measure of the relative speed,
drift, traverse table.

Chronometer, chronometer rate, comparisons.

Sextants, adjustments.

Nautical almanac.

Determination of positions by means of bearing and
altitude of stars.

Knowledge of great circle navigation.

Aeronautical navigational instruments.

3. General Knowledge :

International rules for air and maritime navigation.

International air legislation.

Practical knowledge of meteorology and of weather charts.

V

MEDICAL CERTIFICATES.

International Medical Requirements for Air Navigation.

I. Every candidate before obtaining a licence as a pilot,
navigator or engineer of aircraft engaged in public transport

174 APPENDIX I

will present himself for examination by specially qualified
medical men (flight surgeons), appointed by or acting under
the authority of the contracting State.

2. Medical supervision, both for the selection and the
maintenance of efficiency, shall be based upon the following
requirements of mental and physical fitness : —

{a) Good family and personal history, with particular
reference to nervous stability. Absence of any
mental, moral or physical defect which will inter-
fere with flying efficiency.

(b) The minimum age for pilots and navigators engaged

in public transport shall be nineteen (19) years.

(c) General Surgical Examination. The aviator or aero-

naut must neither suffer from any wound, injury or
operation nor possess any abnormality, congenital
or otherwise, which will interfere with the efficient
and safe handling of aircraft.

(d) General Medical Examination. The aviator or aero-

naut must not suffer from any disease or disability
which renders him liable suddenly to become
unfit for the management of aircraft. He
must possess heart, lungs, kidneys and nervous
system capable of withstanding the effects of
altitude and also the effects of prolonged flight.

{e) Eye Examination. The aviator or aeronaut must
possess a degree of visual acuity compatible with
the efficient performance of his duties. No pilot
or navigator shall have more than two (2) dioptres
of latent hypermetropia ; muscle balance must be
good and commensurate with the refraction. He
must have a good field of vision in each eye and
must possess normal colour perception.

(/) Ear Examination. The middle ear must be healthy.
The aviator or aeronaut must possess a degree of
auditory acuity compatible with the efficient
performance of his duties.

[g) The vestibular mechanism must be intact and neither
unduly hypersensitive nor hyposensitive.

{h) Nose and Throat Examination. The aviator or aero-
naut must possess free nasal air entry on either side
and not suffer from serious acute or chronic affec-
tions of the upper respiratory tract.

3. Each contracting State shall for the present fix its own
methods of examination until the detail of tests and the

INTERNATIONAL CONVENTION 175

minimum standard of requirements have been finally settled
by the authorised medical representatives of the Inter-
national Commission for Air Navigation.

4. The successful candidate will receive a medical certifi-
cate of acceptance, which must be produced before the licence
can be issued.

5. In order to ensure the maintenance of efficiency,
every aviator or aeronaut shall be re-examined periodically,
at least every six months, and the findings shall be attached
to his original record. In case of illness or accident also, an
aviator or aeronaut shall be re-examined and pronounced
fit before resuming air duties. The date and result of each
re-examination shall be recorded on the aeronaut's flying
certificate.

6. No aviator or aeronaut who, before the date of the
present Convention, has given proof of his flying ability,
shall, so long as he retains such ability, be necessarily
disqualified because he fails to fulfil all of the above require-
ments.

7. Each contracting State may raise the conditions set
forth above, as it deems fit, but these minimum requirements
shall be maintained internationallv.

ANNEX F.

INTERNATIONAL AERONAUTICAL MAPS
AND GROUND MARKINGS.

[This Annex, being of a technical nature, is not given here.]

ANNEX G.

COLLECTION AND DISSEMINATION OF
METEOROLOGICAL INFORMATION.

[This Annex, being of a technical nature, is not given here.]

176 APPENDIX I

ANNEX H.
CUSTOMS.

GENERAL PROVISIONS.
I.

Any aircraft going abroad shall depart only from aero-
dromes specially designated by the customs administration
of each contracting State, and named " customs aerodromes."

Aircraft coming from abroad shall land only in such
aerodromes.

2.

Every aircraft which passes from one State into another
is obliged to cross the frontier between certain points fixed
by the contracting States. These points are shown on the
aeronautical maps.

3.
All necessary information concerning customs aerodromes
within a State, including any alterations made to the list and
any corresponding alterations necessary on the aeronautical
maps and the dates when such alterations become valid,
and all other information concerning any international
aerodromes which may be estabhshed, shall be communi-
cated by the States concerned to each other and to the
International Commission for Air Navigation, which shall
notify such information to all of the contracting States.
The contracting States may agree to estabhsh international
aerodromes at which there may be joint customs services
for two or more States.

4-

When, by reason of a case of force majeure, which must be
duly justified, an aircraft crosses the frontier at any other
point than those designated, it shall land at the nearest
customs aerodrome on its route. If it is forced to land
before reaching this aerodrome it shall inform the nearest
poUce or customs authorities.

It will only be permitted to leave again with the authorisa-
tion of these authorities, who shall, after verification, stamp
the log book and the manifest provided for in paragraph 5 ;

INTERNATIONAL CONVENTION 177

they shall inform the pilot of the customs aerodrome where
he must necessarily carry out the formalities of customs
clearance.

5-
Before departure, or immediately after arrival, according
to whether they are going to or coming back from a foreign
country, pilots shaU show their log books to the authorities
of the aerodrome and, if necessary, the manifest of the goods
and supplies for the journey which they carry.

6.

The manifest is to be kept in conformity with the attached
form No. i.

The goods must be the subject of detailed declarations in
conformity with the attached form No. 2, made out by the
senders.

Every contracting State has the right to prescribe for the
insertion either on the manifest or on the customs declara-
tion of such supplementary entries as it may deem necessary.

7-

In the case of an aircraft transporting goods the customs
officer, before departure, shaU examine the manifest and
declarations, make the prescribed verifications and sign the
log book as well as the manifest. He shall verify his signa-
ture with a stamp. He shall seal the goods, or sets of goods,
for which such a formality is required.

On arrival the customs officer shall ensure that the seal is
unbroken, shall pass the goods, shall sign the log book and
keep the manifest.

In the case of an aircraft with no goods on board, the log-
book only shall be signed by the police and customs officials.

The fuel on board shall not be liable to customs duties
provided the quantity thereof does not exceed that needed
for the journey as defined in the log book.

8.

As an exception to the general regulations, certain classes
of aircraft, particularly postal aircraft, aircraft belonging
to aerial transport companies regularly constituted and
authorised, and those belonging to members of recognised
touring societies not engaged in the public conveyance of
persons or goods, may be freed from the obligation of landing

N

178 APPENDIX I

at a customs aerodrome and authorised to begin or end
their journey at certain inland aerodromes appointed by
the customs and poHce administration of each State at
which customs formalities shall be complied with.

However, such aircraft shall follow the normal air route,
and make their identity known by signals agreed upon as
they fly across the frontier.

REGULATIONS APPLICABLE TO AIRCRAFT AND GOODS.

9-

Aircraft landing in foreign countries are in principle
liable to customs duties if such exist.

If they are to be re-exported, they shall have the benefit
of the regulations as to permit by bond or deposit of the
taxes.

In the case of the formation between two or more countries
of the Union of touring societies, the aircraft of the said
countries will have the benefit of the regulations of the
" Tryptique."

10.

Goods arriving by aircraft shall be considered as coming
from the country where the log book and manifest have been
signed by the customs officer.

As regards their origin and the different customs n'gimes,
they are hable to the regulations of the same kind as are
applicable to goods imported by land or sea.

II.

With regard to goods exported in discharge of a temporary
receiving or bonded account or liable to inland taxes, the
senders shall prove their right to send the goods abroad
by producing a certificate from the customs of the place of
destination.

AIR TRANSIT.
12.

When an aircraft to reach its destination must fly over
one or more contracting States, without prejudice to the
right of sovereignty of each of the contracting States, two
cases must be distinguished : —

I. If the aircraft neither sets down nor takes up pas-
sengers or goods, it is bound only to keep to the normal air

INTERNATIONAL CONVENTION 179

route and make itself known by signals when passing over
the points designated for such purpose.

2. In other cases, it shall be bound to land at a customs
aerodrome and the name of such aerodrome shall be entered
in the log book before departure. On landing, the customs
authorities shall examine the papers and the cargo, and take,
if need be, the necessary steps to ensure the re-exportation
of the craft and goods or the pajrment of the dues.

The provisions of paragraph 9 (2) are applicable to goods
to be re-exported.

If the aircraft sets down or takes up goods, the customs
officer shall verify the fact on the manifest, duly completed,
and shall affix, if necessary, a new seal.

VARIOUS PROVISIONS.

13-

Every aircraft during flight, wherever it may be, must
conform to the orders from police or customs stations and
police or customs aircraft of the State over which it is flj^ng.

14.

Customs officers and excise officials, and generally speaking
the representatives of the pubUc authorities shall have free
access to all starting and landing places for aircraft ; they
may also search any aircraft and its cargo to exercise their
rights of supervision.

15.
Except in the case of postal aircraft, all unloading or
throwing out in the course of flight, except of ballast, may
be prohibited.

16.

In addition to any penalties which may be imposed by
local law for infringement of the preceding regulations, such
infringement shall be reported to the State in which the air-
craft is registered and that State shall suspend for a limited
time, or permanently, the certificate of registration of the
offending aircraft.

17-
The provisions of this Annex do not apply to military
aircraft visiting a State by special authorisation (Articles 31,
32, and 33 of the Convention), nor to police and customs
aircraft (Articles 31 and 34 of the Convention).

N 2

i8o

APPENDIX I

Form No. i— MANIFEST.

Note.— The manifest should not bear on it erasures or eoppeo-
tions except those approved by the proper customs officials, nor
contain interlineations or several articles entered on the same
line. As many extra sheets may be added as are necessary.

AIR NAVIGATION.

MANIFEST OR GENERAL DECLARATION OF CARGO.
MACHINE ..jR-gi^trationMark.

Space

reserved

for

COMMAND-
ING
OFFICER.

entries

by
Customs

Officers.

GOODS -

fName :
Residence :
Nationality :
Number of Licence :

■ Place of departure : Country :

Place of destination : Country

Number of annexed declarations :

The Commanding Officer guarantees the accuracy of the
contents of this manifest under penalties provided by law.
Consequently he has dated and signed this document
immecfiately below the last entry.

File

NUMBER

of
Docu-
ment.

Marks

and

numbers

on

the

Parcels.

Number
(in figures
and letters)

and

Descriptions

of Parcels.

Nature
of

THE GOODS.

Weight.

Observations.

INTERNATIONAL CONVENTION i8i

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Observ.\-

TIONS.

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Country
of origin

Detailed Description
OF contents.

Nature
of goods.

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AND

numbers.

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4)

APPENDIX II

AIR NAVIGATION REGULATIONS, 1919.

Arrangement of Regulations.

Regulation.

1. General conditions of flying.

2. Additional conditions in certain cases.

3. Reference to schedules.

4. Aerodromes.

5. General safety provisions.

6. Production of licences, certificates, and log-books for

inspection.

7. Right of inspection of and access to aerodromes and

factories.

8. Exceptions,

9. Foreign aircraft.

10. Penalties.

11. Power to cancel or suspend licences and certificates.

12. Interpretation.

13. Saving.

14. Short title.

Schedules.

I. Registration of aircraft.
II. Licensing of personnel.

III. Certificates of airworthiness for passenger aircraft

and periodical overhaul and examination of such
aircraft.

IV. Registration and nationality marks.*
V. Log-books.

VI. Prohibited areas.
VII. Rules as to Hghts and signals and rules of the air.*
VIII. Rules as to aircraft arriving in or departing from the
United Kingdom.

* Not given here.

AIR NAVIGATION REGULATIONS, 1919 183

ORDER OF THE SECRETARY OF STATE UNDER
THE AIR NAVIGATION ACTS, 1911 TO 1919.

In pursuance of the powers conferred upon me by the Air
Navigation Acts, 191 1 to 1919, and all other powers enabling
me in that behalf, I, the Right Honourable Winston Spencer
Churchill, one of His Majesty's Principal Secretaries of
State, by order make the followdng regulations : —

I. General Conditions of Flying. — No aircraft shaU fly
\vithin the limits of the British Islands and the territorial
waters adjacent thereto unless the following conditions are
complied with : —

(i) The aircraft shall be registered in the prescribed
manner :

(2) The aircraft shall bear the prescribed registration and

nationality marks, affixed or painted on the aircraft
in the prescribed manner :

(3) The personnel of the aircraft shall be licensed in the

prescribed manner :

(4) There shall be carried in the aircraft —

(a) the certificate of registration ; and

(b) the licence of any member of the personnel who

is required to be licensed :

(5) The provisions of these regulations as to general

safety, and the rules as to lights and signals and
rules of the air, as set out in these regulations, shall
be duly complied with :

(6) No mails shall be carried without the consent in

writing of the Postmaster-General, and no wireless
apparatus shall be installed or worked except under
and in accordance with a licence granted by the
Postmaster-General, containing such conditions as
may be approved by the Secretary of State :

(7) The aircraft shall not fly over any prohibited area as

defined by these regulations :
Provided that —

(a) the requirements of this regulation as to registra-
tion and as to the bearing of registration and nation-
ality marks shall not apply to aircraft built for
the purpose of experiment, and flown for the pur-
pose of experiment or test only within three miles
of an aerodrome or aircraft factory or in accordance
with such directions (if any) as may be given by
the Secretary of State ; and

i84 APPENDIX II

(6) the requirements of this regulation as to licensing
of personnel shall not apply within the precincts
of an aerodrome in the case of personnel under
instruction or of aircraft flying for experimental
purposes.

2. Additional Conditions in Certain Cases. — Without
prejudice to the last foregoing regulation —

(i) A passenger aircraft carrying passengers shall not —

(a) fly within the limits aforesaid unless it has
been certified in the prescribed manner as airworthy,
and the prescribed conditions as to airworthiness,
periodical overhaul, and examination before each
flight are compUed with, and aU the prescribed
certificates in relation to airworthiness are carried
in the aircraft ; or

(b) use as a regular place of departure or place of
landing any place other than a licensed aerodrome,
or a Royal Air Force aerodrome or aerodrome
under the control of the Secretary of State approved
for the purpose by the Secretary of State :

(2) A passenger or goods aircraft shall not fly within the

limits aforesaid unless there are carried in the
aircraft the prescribed log-books, accurately kept
up to date in the prescribed form and manner :

(3) An aircraft arriving in or departing from the United

Kingdom shall comply with the provisions of these
regulations applicable to such a case.

3. Reference to Schedules. — (i) The provisions in the
schedules to these regulations shall have effect as part of
these regulations, and shall be duly observed by aU persons
concerned in the cases to which they relate, that is to say : —

Schedule.

Subject matter.

I.

Registration of aircraft.

II.

Licensing of personnel.

III.

Certificates of airworthiness for passenger aircraft, and

periodical overhaul and examination of such aircraft.

IV.

Registration and nationality marks.

V.

Log-books.

VI.

Prohibited areas.

VII.

Rules as to lights and signals and rules of the air.

VIII.

Rules as to aircraft arriving in or departing from the

United Kingdom.

AIR NAVIGATION REGULATIONS, 1919 185

(2) The Secretary of State may, if he thinks fit, issue
directions for the purpose of supplementing or giving full
effect to the provisions of the above schedules, or for any
purpose for which provision is under these regulations to be
made by direction of the Secretary of State.

4. Aerodromes. — (i) No place in the British Islands shall
be used as an aerodrome or as a regular place of landing or
departure by passenger aircraft carrying passengers, unless
it has been licensed for the purpose by the Secretary of State,
and any conditions of the licence are compHed with.

(2) There shall be kept exhibited in a conspicuous place at
all aerodromes used for the landing or departure of passenger
or goods aircraft, a tariff of charges in such form and on
such scale as may be directed or approved by the Secretary
of State.

(3) In the case of any contravention of or failure to comply
\vith this regulation, the proprietor of the aerodrome shall
be deemed to have acted in contravention of or, as the case
may be, failed to comply with these regulations.

(4) This regulation shall not apply to Royal Air Force
aerodromes or aerodromes under the control of the Secretary
of State, the use of which has been sanctioned by the Secre-
tary of State ; provided that any directions of the Secretary
of State as to the use of such aerodromes are complied
with.

5. General Safety Provisions. — (i) An aircraft shall not
fly over any city or town except at such altitude as will
enable the aircraft to land outside the city or town should
the means of propulsion fail through mechanical breakdown
or other cause :

Proxdded that this prohibition shall not apply to any
area comprised \\dthin a circle with a radius of one mile from
the centre of a licensed aerodrome or of a Royal Air Force
aerodrome, or of an aerodrome under the control of the
Secretary of State.

(2) No person in any aircraft shall —

(a) carry out any trick flying or exhibition flying over

any city or town area or populous district ; or

(b) carry out any trick fljdng or exhibition flying over

any regatta, race meeting, or meeting for public
games or sports, except where specially arranged
for in writing by the promoters of such regatta or
meeting ; or

1 86 APPENDIX II

(c) carry out any flying which by reason of low altitude

or proximity to persons or dwellings is dangerous
to public safety ; or

(d) drop, or cause or permit to be dropped, from the

aircraft any article except ballast as authorised by
the rules of the air as set out in these regulations.

6. Production of Licences, Certificates and Log-hooks for
Inspection. — (i) Any member of the personnel of an air-
craft shall on demand produce his Ucence for the inspection
of any person authorised for the purpose by the Secretary
of State.

(2) The owner and person in charge of any aircraft shall,
on demand, produce for the inspection of any person autho-
rised for the purpose by the Secretary of State, any certifi-
cates or licences relating to the aircraft, and also, in the case
of passenger or goods aircraft, any of the prescribed log-
books.

7. Right of Inspection of and Access to Aerodromes and
Factories. — (i) Any person authorised by the Secretary of
State for the purpose shall have the right of access at all
reasonable times to any aerodrome for the purpose of in-
specting the same, or to any place to which access is neces-
sary for the purpose of carrying out his powers and duties
under these regulations.

(2) All aircraft belonging to or employed in the service of
His Majesty?' shall have at all reasonable times the right of
access to any licensed aerodrome.

(3) During the construction of a passenger aircraft any
person authorised by the Secretary of State shall at all times
during working hours have the right of access, for purposes
of inspection, to that portion of the shops in which parts are
being manufactured or assembled, and to dra\vings of the
parts under inspection, whether at the works of the main
contractor or of sub-contractors.

8. Exceptions. — These regulations do not (except where
otherwise expressly stated) apply —

[a) to military aircraft belonging to or employed in the
service of His Majesty ; or

(6) to any aircraft or to any persons if and to such extent
as such aircraft or persons may be excepted from
these regulations, or any of them, by direction of
the Secretary of State on the recommendation of
a Government Department.

AIR NAVIGATION REGULATIONS, 1919 187

9. Foreign Aircraft. — The provisions of these regulations
as to —

(a) registration of aircraft ;

(b) licensing of personnel ;

(c) airworthiness ;

(d) log-books ; and

(e) wireless apparatus ;

shall not apply to foreign aircraft :

Provided that —

(i) no foreign military aircraft shall fly over or land in the
British Islands or the territorial waters adjacent
thereto except on the express invitation or with
the express permission of His Majesty or of a
Government Department, but any such aircraft
landing on such invitation or with such permission
shall be exempt from these regulations to such
extent and on such conditions as may be specified
in the invitation or permission ; and

(ii) where any foreign aircraft, after first landing in the
British Islands, flies over any part thereof except
in such manner as may be necessary in order to
proceed to a foreign destination, aU the provisions
of these regulations shall apply to that aircraft
unless there are carried in the aircraft, and pro-
duced for inspection as and when required by the
Secretary of State, certificates, Ucences, and log-
books issued by the responsible authority in the
country to which the aircraft belongs, compl5dng
substantially with the provisions of these regula-
tions, and unless (in the case of a passenger aircraft)
the conditions of the aircraft from the point of view
of the safety of the passengers and personnel
correspond substantially with the particulars con-
tained in the certificates produced.

10. Penalties. — (i) Where any aircraft flies in contra-
vention of, or fails to comply with, these regulations or any
provision thereof, the owner of the aircraft, and also the pilot
or commander, shall be deemed to have contravened or,
as the case may be, failed to comply with these regulations :

Provided that it shall be a good defence to any proceed-
ings for contravention or failure to comply with these regu-
lations if the contravention or failure is proved to have been
due to stress of weather or other unavoidable cause.

1 88 APPENDIX II

(2) If any person obstructs or impedes any person acting
under the authority of the Secretary of State in the exercise
of his powers and duties under these regulations, such first-
mentioned person shall be deemed to have acted in contra-
vention of these regulations.

(3) Any person contravening or failing to comply with
these regulations or any provision thereof is Uable to im-
prisonment for a term not exceeding six months or to a fine
not exceeding two hundred pounds, or to both such im-
prisonment and fine.

{4) Any aircraft which flies or attempts to fly over a pro-
hibited area is liable to be fired on in accordance with section
two of the Aerial Navigation Act, 1913, and the provisions
of these regulations relating thereto.

(5) If any person in any aircraft is guilty of any act of
espionage to which the provisions of section one of the
Official Secrets Act, 1911, apply, he is Hable to penal servi-
tude for a term not exceeding seven years.

11. Power to Cancel or Suspend Licences and Certifi-
cates.— (i) The licence of any member of the personnel of an
aircraft, or the licence of any aerodrome, may be cancelled
or suspended by the Secretary of State on sufficient ground
being shown to his satisfaction, after due inquirj^ and his
decision shall be final :

Provided that in special cases the Secretary of State may
suspend any such licence temporarily and provisionally
pending the holding of an inquiry.

(2) Any certificate relating to the airworthiness of an air-
craft may be cancelled or suspended by the Secretary of
State if he is satisfied that reasonable doubt exists as to the
safety of the aircraft in question, or of the type to which the
aircraft in question belongs.

(3) Where any person is convicted of any contravention
or failure to comply with these regulations in respect of any
aircraft, the Secretary of State may cancel or suspend the
certificate of registration of that aircraft.

12. Interpretation. — In these regulations, unless the con-
text otherwise requires, —

" Aircraft " includes airships and flying machines, all
balloons, whether fixed or free, and kites ;

" Airship " means an aircraft lighter than air and having
means of propulsion ;

" Balloon " means an aircraft lighter than air and having
no means of propulsion ;

AIR NAVIGATION REGULATIONS, 1919 189

" Flying machine " includes aeroplanes, seaplanes, flying
boats, and other flying machines heavier than air
and having means of propulsion ;

" ^Military aircraft " includes naval, military, and air-
force aircraft ;

" Passenger aircraft " and " goods aircraft " mean respec-
tively aircraft intended for carrying passengers, or
goods (including mails), for hire or reward, and
include respectively aircraft on which passengers or
goods are actually so carried ;

" Personnel " (in relation to any aircraft) includes any
pilot, commander, navigator, and engineer, and any
operative member of the crew ;

" Aerodrome " means any definite and limited ground or
water area intended to be used and capable of being
used, either wholly or in part, for the landing or
departure of aircraft ;

" Proprietor of an aerodrome " includes any person
responsible for the management thereof ;

" Licensed aerodrome " means an aerodrome licensed
under these regulations ;

" Prescribed " means prescribed by these regulations or
by directions of the Secretary of State thereunder ;

" Prohibited area " means any of the areas referred to in
Schedule VI. of these regulations ;

" Secretary of State " includes, in relation to any purpose
of these regulations, any person authorised by the
Secretary of State for that purpose.

The Interpretation Act, 1889, applies for the purpose of
the interpretation of these regulations as it applies for the
purpose of the interpretation of an Act of Parliament, and as
if these regulations were an Act of Parliament.

13. Saving. — Nothing in these regulations shall be con-
strued as conferring any right to land in any place as against
the owner of the land or other persons interested therein,
or as prejudicing the rights or remedies of any person in
respect of any injury to persons or property caused by any
aircraft.

14. Short Title. — These regulations may be cited as the
Air Navigation Regulations, 1919.

Winston S. Churchill,
Air Ministry, London, {one of His Majesty's

2,0th April, 1919. principal Secretaries of State).

190 APPENDIX II

SCHEDULES.

SCHEDULE I.

Registration of Aircraft.

1. Certificates of registration shall be granted by the
Secretary of State, and upon registration there shall be
assigned to the registered aircraft a registration mark.

2. The applicant, unless the Secretary of State in special
cases otherwise allows, must be a British subject, or in the
case of a body corporate must be registered and have its
principal place of business in the United Kingdom.

3. AppUcation for registration shall be made to the Secre-
tary, Air Ministry.

4. The fee to be charged for registration will be one
guinea.

5. Upon any change of ownership of registered aircraft,
the certificate of registration shall lapse, but a fresh certifi-
cate may be applied for by the new owner.

SCHEDULE n.

Licensing of Personnel.

Licensing Authority.

1. Licences shall be granted by the Secretary of State.
Applications therefor shall be made to the Secretary, Air
Ministry.

Pilots.

2. A person applying for a pilot's licence to fly passenger
or goods aircraft will be required to —

(a) pass a medical examination carried out under the con-
trol of the Secretary of State ;

(6) produce a certificate of competency issued by the
Secretary of State, or be quahfied as a Royal Air
Force pilot ;

(c) submit proof of recent reasonable fl^^ng experience on
the class of machine for which the licence is re-
quired, or failing such proof undergo practical tests.

3. A person applying for a pilot's licence to fly machines
other than passenger or goods aircraft must either be qualified

AIR NAVIGATION REGULATIONS, 1919 191

as a Royal Air Force pilot, or produce a certificate of com-
petency issued by the Secretary of State.

Navigators.

4. A person applying for a licence to navigate passenger
or goods aircraft will be required to —

{a) pass a medical examination carried out under the con-
trol of the Secretary of State ;

[h) produce a certificate of competency issued by the
Secretary of State.

Engineers.

5. A person applying for a licence to be engaged as engineer
on passenger or goods aircraft will be required to —

{a) pass a medical examination carried out under the con-
trol of the Secretary of State ;

[h) submit proof of sufficient knowledge and experience
in the management of aircraft engines ;

(c) undergo, if necessary, practical and theoretical tests.

Other Persons.

6. Persons applying for a licence in any other capacity
than those above specified must comply with such conditions
as may be directed by the Secretary of State.

General.

7. Holders of licences may be required from time to time
to undergo further medical examinations carried out under
the control of the Secretary of State.

8. Licences shall remain valid for the following periods : —

Pilots' licences - - - - 6 months,
Other licences - - - - 12 months,

and shall not be valid unless endorsed by the Secretary of
State at those intervals.

9. The fee to be charged in respect of each licence issued
and in respect of each such endorsement as aforesaid shall
be five shillings.

In the event of any applicant being required to undergo
such practical tests as are specified in paragray^hs 2 (c) and
5 (c) above, a further fee of one guinea will be charged.

192 APPENDIX 11

SCHEDULE III.

Certificates of Airworthiness for Passenger Aircraft
AND Periodical Overhaul and Examination of
SUCH Aircraft.

General.

1. A certificate of airworthiness in respect of one aircraft
of any type (hereinafter referred to as "a type aircraft ")
will be issued by the Secretary of State in accordance with
the conditions set out in this schedule at a charge of five
guineas,

2. After the issue of a certificate of airworthiness to a
type aircraft, any further aircraft of that t3T)e will be in-
spected for airworthiness by employees of the constructor,
under arrangements approved by the Secretary of State,
and if the aircraft in respect of which a certificate of air-
worthiness is desired conforms in all essential respects with
the type aircraft, and is of satisfactory workmanship and
materials, a certificate of airworthiness will be issued in
respect of such aircraft by the Secretary of State at a charge
of one guinea :

Provided that the Secretary of State may take steps to
test the inspection made by the employees of a constructor,
and if such test inspection, in his opinion, warrants such a
course, may order a further inspection to be carried out by
any person or persons duly authorised by him, and to issue
or refuse a certificate, as he may decide, after such inspec-
tion, or to refuse to issue certificates of airworthiness in
respect of further aircraft of the same type as that subjected
to such test inspection that have been or may be constructed
by the particular constructor.

3. Licences to competent persons for the purposes of this
schedule shall be granted by the Secretary of State on com-
pliance with such conditions as he may direct.

Type Aircraft.

4. A certificate of airworthiness will not be granted for any
type of passenger aircraft until the following conditions
stipulated below have been fulfilled : —

(a) The design has been approved by the Secretary of
State in regard to safety ;

AIR NAVIGATION REGULATIONS, 1919 193

[b) The construction has been so approved in regard to

workmanship and material used ; and

(c) A satisfactory demonstration in accordance with the

directions of the Secretary of State has been made in
fl;^dng trials that the aircraft is safe for the purpose
for which it is intended.

Periodical Overhaul.

5. All passenger aircraft must be inspected, overhauled
and certified as airworthy by competent persons appointed
by the owners or users of them, and hcensed for the purpose
under this schedule, at such times as the Secretary of State
may direct, and such certificate or certificates must be
produced to the Secretary of State on demand.

6. Aircraft inspected, overhauled, or certified as provided
in the foregoing paragraph may be inspected by authorised
representatives of the Secretary of State, and the Secretary
of State is entitled under these regulations to cancel or
suspend the certificate of airworthiness of any aircraft
deemed to be unsafe as a result of such inspection.

Examination before each Flight.

7. No passenger aircraft carrying passengers shall on any
day proceed on any journey unless it has previously been
inspected at least once on that day by a competent person
Hcensed for the purpose under this schedule, who shall not
be the pilot of the particular machine.

8. If such competent person is satisfied that the aircraft
is fit in every way for the flight or fhghts proposed, he shall
sign in duplicate a certificate to that effect, which certificate
shall be countersigned by another person in the employment
of the owner, giving the time and date of such certification.
For this purpose the counter-signature of the pilot may be
accepted.

9. One copy of each certificate will be retained by the
owner of the aircraft, and the duplicate copy must be carried
in the aircraft.

10. The pilot will be responsible for seeing that the
aircraft, before commencing any flight, is, in his opinion, in
a satisfactory condition and does not carry more than the
load specified in the certificate of airworthiness, and must
sign a certificate to that effect.

O

t94 APPENDIX II

SCHEDULE IV.

Registration and Nationality Marks.

[The British regulations on this subject are identical in
substance with those contained in paragraphs II to VII, in-
clusive, of Annex A, " The Marking of Aircraft," of the
International Convention — see Appendix I — and are
therefore omitted here.]

SCHEDULE V.

Log-books.

1. Log-books shall take the form of an aircraft log-book,
an engine log-book, a journey log-book, and a signal log-
book. If more than one engine is fitted a separate log-book
shall be provided for each engine.

2. Each log-book shall be self-contained, but aU log-books
shall be kept together in the aircraft in a waterproof bag of a
pattern authorised by the Secretary of State.

3. The log-books shall conform in all essentials to the
patterns authorised by the Secretary of State, and shall
contain such information and particulars as the Secretary
of State may direct.

SCHEDULE VI.

Prohibited Areas.

I. Each of the places named or described in the following
Ust, with the land and territorial waters surrounding such
place to a distance of three statute miles in all directions
from its boundary, shall be a prohibited area : —

Whole of Scapa Flow. Dalmore village, near Inver-

Kirkwall Town. gordon.

The area enclosed by straight Aberdeen Wireless Station.

lines joining the following Montrose Town.

points : — ^Tor Ness, Rora Broughty Ferry Castle.

Head, Inga Ness, Mull Inchkeith Island.

Head, Old Head (Orkney Rosyth Dockyard.

Islands). Pitfirrane Park.

Thurso Town. Forth Bridge.

Cromarty Ness. Tynemouth, North Pier
Invergordon Pier. Lighthouse.

AIR NAVIGATION REGULATIONS, 1919 195

Elswick Railway Station.

Killingholme Air Station.

Cleethorpes Wireless Station.

Louth Railwa}^ Station.

Landguard Point, Break-
water (Felixstowe).

Parkeston Quay.

Ipswich Wireless Station.

Osea Island.

Shoeburyness Church.

Fobbing Church.

Tilbury Fort.

Purfleet Railway Station.

Barking Creek Mouth.

Waltham Abbey Railway
Station.

Enfield Lock Railway
Station.

Chatham Dockyard.

Teapot Hard.

Chattenden Farm,

Allhallows Church.

Grain Martello Tower.

Sheerness Dockyard.

Dover Castle.

Archcliffe Fort.

Lydd Railway Station.

Newhaven Station Harbour
Jetty.

Fort Cumberland.

Spithead : namely, the space
between a line from Lee-
on-Solent Pier to Wootton
Point and a line from
Southsea Castle to Sea-
view Pier.

Portsmouth Dockyard

Cosham Railway Station.

Fareham Railway Station.

Culver cuff. Naval Signal
Station.

Needles Lighthouse.

Southampton Docks.

Marchwood Park.

Hurst Castle.

Osmington Church.

Weymouth Pier.

Portland Convict Prison.

Turnchapel Railway Station.

Plymstock Railway Station.

Keyham Dockyard.

Devonport Dockyard.

Saltash Railway Bridge.

Penlee Point.

Thorn Island (Milford Ha-
ven).

Pembroke Wireless Station.

Old Milford Railway Station.

St. Ann's Head.

Barrow-in-Furness Town
Hall.

Stevenston Railway Station.

Greenock Pier.

So much of Loch Long as
lies north of a line drawn
due east from Knap
Point.

Carrickfcrgus Railway Sta-
tion.

Grey Point.

Spike Island.

Haulbowline Dockyard.

2. The prohibited areas are more particularly shown
in a map issued for the purpose by the Secretary of
State.

3. The officer to give the signals and take the action
mentioned in section 2 of the Aerial Navigation Act, 1913,
shall be a commissioned officer in His Majesty's Naval,
MiHtary, or Air Forces.

4. The signals which may be given when an aircraft flies

O 2

196 APPENDIX II

or attempts to fly over any of the prohibited areas shaU be
as follows : —

By day : three discharges, at intervals of not less than ten
seconds, of a projectile showing smoke on bursting.

By night : three discharges, at intervals of not less than
ten seconds, of a projectile showing red stars or red
lights.

5. On such a signal being given, the aircraft shall imme-
diately land at the nearest practicable spot ; provided that,
if it be approaching or fl3dng over any prohibited area, it
shall not, in descending, advance further towards or into
the area.

6. If an aircraft is unable to land immediately in response
to the signal, owing to stress of weather or other unavoidable
cause, it shall make the following signal : —

By day : show, from the place where they can be most
clearly seen from below, a red triangular flag, together
with two black balls superimposed vertically one above
the other ;
By night : wave a white hght, at the same time extin-
guishing the side lights ;
and shall, as soon as possible, land at the nearest practicable
spot in the United Kingdom.

SCHEDULE VII.

Rules as to Lights and Signals and Rules of the Air.

[The British rules are identical in substance with those
contained in Annex D of the International Convention —
see Appendix I — and are therefore not reproduced here.]

SCHEDULE VIII.

Rules as to Aircraft arriving in or departing from
THE United Kingdom.

Preliminary.
I. — (i) For the purposes of the rules in this schedule the
following aerodromes are appointed aerodromes, that is to
say : —

New Holland, Lincolnshire ;
Hadleigh, Suffolk ;
Lympne, Kent ;
HouNSLOW, Middlesex.

AIR NAVIGATION REGULATIONS, 1919 197

Provided that the Secretary of State may by directions
add any aerodrome to the Ust of appointed aerodromes or
remove any aerodrome from that list.

(2) For the purposes of the rules in this schedule —

" Importer " has the same meaning as in the Customs

Consolidation Act, 1876 ;
" Commissioners " means Commissioners of Customs

and Excise ;
"Examination station" means a space at an appointed

aerodrome approved by the Commissioners as an

examination station ;
" Pilot " includes person in charge.

Other expressions have the same meaning as in the
general provisions of these regulations.

Arrival at and departure from Appointed Aerodromes.

2. No aircraft entering the United Kingdom from abroad
shall land for the first time in the United Kingdom except at
an appointed aerodrome : Provided that this rule shall not
apply where an aircraft is compelled to land before arriving
at an appointed aerodrome, owing to accident, stress of
weather, or unavoidable cause, in which event the procedure
laid down in rule 21 (hereafter) will be followed.

3. No aircraft shall fly to a place outside the United
Kingdom unless it has departed from an appointed aerodrome.

4. — (i) No person in any aircraft entering the United
Kingdom shall carry or allow to be carried in the aircraft —

{a) any goods the importation of which is prohibited by

the laws relating to Customs ;
(b) any mails, except with the permission in writing of the

Postmaster-General.

(2) No person in any aircraft entering the United Kingdom
shall break or alter any seal placed upon any part of the
aircraft or upon any goods therein by a Customs officer at
the aerodrome from which he departed for the United
Kingdom.

5. No aircraft shall enter or leave the United Kingdom,
having any secret or disguised place adapted for concealing
goods.

6. The pilot of any aircraft arriving at an appointed aero-
drome from a place outside the United Kingdom shall, on
landing, forthwith take his aircraft to the examination
station at that aerodrome ; provided that a pilot shall not

iqS appendix II

be deemed to have contravened or failed to comply with this
rule if he proves that circumstances over which he had no
control prevented him from taking his aircraft to the examina-
tion station, and that, after the report required by rule 7
(hereunder) had been duly made by him, all goods carried in
the said aircraft were removed to the examination station
in the presence of an officer of Customs and Excise or some
person duly authorised by the Secretary of State.

7. Within twenty-four hours after the landing at any
appointed aerodrome of an aircraft from a place outside the
United Kingdom the pilot shall —

(a) make a report to the proper officer of Customs and
Excise in the form prescribed by the Commissioners ;
and

{b) truly furnish the several particulars required by such
form ; and

(c) deUver to such officer with such report his log-book,

manifest, and declaration of the goods on board
his aircraft signed by the proper Customs officer
at the aerodrome from which he departed for the
United Kingdom ; and

(d) land at such aerodrome for examination of baggage

all passengers carried in such aircraft, and, after
making such report, shall produce, and, if required
to do so, shall land, all goods in such aircraft for
examination.

8. If at any aerodrome or other place within the United
Kingdom goods or passengers are loaded for conveyance by
air to an appointed aerodrome, the pilot shall obtain from the
proprietor of the aerodrome of departure a certificate of
departure in the form prescribed by the Secretary of State
and the Commissioners, and on arriving at the appointed
aerodrome the aircraft, and all goods and passengers carried
therein, shall, on production of such certificate, be exempt
from inspection by an officer of Customs and Excise, unless
such officer has reason to suspect that the aircraft has, since
the issue of such certificate, called at a place outside the
United Kingdom.

9. The pilot of every aircraft in which goods are to be
exported shall, before any goods be taken on board, deliver
to the proper officer of Customs and Excise a notice of de-
parture for a foreign destination in the form prescribed by
the Commissioners, in which shall be truly stated the parti-
culars recjuired by svich form,

AIR NAVIGATION REGULATIONS, 1919 199

10. — (i) Every pilot of an aircraft carrying goods to any
place outside the United Kingdom shall deliver to the proper
officer of Customs and Excise at an appointed aerodrome,
together with any log-books belonging to the aircraft, an
appUcation for clearance from that aerodrome in the form
prescribed by the Commissioners, in duplicate, and also if
the aircraft carries any goods a manifest and declaration in
the form prescribed by the Commissioners declaring the
goods and stores on such aircraft, and shall truly state
therein the particulars required by such forms respectively ;
and such forms, when signed by such officer, shall be the
clearance and authority for the aircraft to proceed to its
foreign destination.

(2) No pilot shall depart in any such aircraft from the
United Kingdom until he has obtained such authority, or
shall, after obtaining such authority, call at any other place
in the United Kingdom before proceeding to his foreign
destination. Any pilot intending to land at one or more
appointed aerodromes before proceeding to his foreign
destination shall apply for the said clearance and authority
at the last appointed aerodrome at which he lands.

Importation, Entry, and Unloading of Goods.

11. No person importing goods in an aircraft shall bring
the goods into any place in the United Kingdom other than
an appointed aerodrome, or shall unload the goods from
any aircraft except at an examination station (unless such
goods are unloaded in the presence of an officer of the
Customs and Excise under the provisions of rule 6 above)
and shall not unload the goods except between such hours
as the Commissioners prescribe, or remove the goods from
an examination station unless the goods have first been
duly entered in maimer provided by these rules and produced
to the proper officer of Customs and Excise and duly cleared
by him.

12. No person shall remove from any aircraft any goods
imported therein until the report required by rule 7 (above)
has been made, and the authority of the proper officer of
Customs and Excise has been obtained.

13. The importer of any goods imported in aircraft shall
deliver to the collector of Customs and Excise in whose dis-
trict the aerodrome of importation is situated an entry of
such goods in accordance with the provisions of the Customs
Acts, and shall truly furnish thereon the several particulars

200 APPENDIX II

required by the form of entry, and shall pay to such collector
all duties chargeable thereon at the times and in the manner
prescribed by the said Acts ; provided that no entry shall
be required in respect of diamonds or bullion or the baggage
of passengers.

14. All goods imported into an appointed aerodrome in
any aircraft shall be duly entered and unladen \^dthin seven
days from the time of the arrival of such aircraft at that
aerodrome or within such further period as the Commis-
sioners may allow.

15. All goods imported in aircraft which have not been
examined and cleared by the proper officer of Customs and
Excise shall be stored in a transit shed at the appointed
aerodrome, and no person shall remove such goods from the
transit shed before examination and clearance by such
officer.

Exportation of Goods.

16. — (i) The exporter of any goods intended for exporta-
tion in aircraft shall deliver to the proper officer of Customs
and Excise at the appointed aerodrome from which such air-
craft is cleared to its foreign destination, an entry in the form
prescribed by the Commissioners, and shall truly state in
such form the particulars hereby required ; and such form
when signed by the proper officer of Customs and Excise
shall be the clearance and authority for the exportation of
such goods.

(2) No person shaU export goods on such aircraft until
such authority has been given by the proper officer of Cus-
toms and Excise.

17. No person shall without the consent of the proper
officer of Customs and Excise unload from any aircraft any
goods loaded thereon for exportation which have been
cleared under rule 16 above, or open, alter, or break any
lock or mark or seal placed by any officer of Customs and
Excise on any goods in any aircraft about to depart from the
United Kingdom.

General Provisions.

18. No pel son shall make any signal to or from an aircraft
entering or leaving the United Kingdom except such
signals as are authorised by these regulations ; provided
that no offence shall be deemed to be committed under this
rule if the person making such signal proves that the signal

AIR NAVIGATION REGULATIONS, 1919 201

was not given for the purpose of evading or of assisting any
person in evading these rules.

19. If any officer of Customs and Excise in the execution
of his duty boards any aircraft in any place, the pilot thereof
shall not convey him in the aircraft awa}^ from such place
^^dthout his consent.

20. No dutiable goods shall be removed in aircraft from
the Isle of Man to Great Britain or Ireland except from an
appointed aerodrome and with the consent of the proper
officer of Customs and Excise.

21. If any aircraft arriving from a place outside the
United Kingdom, shall land in any place other than an
appointed aerodrome, the pilot shall forthwith report to an
officer of Customs and Excise or police constable, and shall
on demand produce to such officer or police constable the
log-books belonging to the aircraft, and shall not allow any
goods to be unloaded therefrom without the consent of an
officer of Customs and Excise, and no passenger thereof shall
leave the immediate vicinity without the consent of an
officer of Customs and Excise or police constable. If such
place of landing shall be an aerodrome the pilot shall forth-
with report the arrival of the aircraft and the place whence
it came to the proprietor of the aerodrome, and the pro-
prietor of the aerodrome shall forthwith report the arrival
of the aircraft to an officer of Customs and Excise, and shall
not allow any goods to be unloaded therefrom or any pas-
senger thereof to leave the aerodrome without the consent
of such officer.

22. — (i) The proprietor of any aerodrome shall at all
times permit any officer of Customs and Excise to enter and
inspect his aerodrome and all buildings and goods thereon.

(2) The pilot of any aircraft shall permit any officer of
Customs and Excise at any time to board and inspect his
aircraft and any goods laden thereon.

(3) The importer or exporter of any goods imported or
exported in aircraft shall produce such goods to the proper
officer of Customs and Excise at the aerodrome of importa-
tion or exportation, as the case may be, and permit him to
inspect such goods.

23. Any provisions for the time being in force of the Aliens
Restriction Order or of the Defence of the Realm Regulations
with respect to persons arriving in or departing from the
United Kingdom by sea, shall apply to persons arriving or
departing by air as if the same were herein set out, with ruch
modifications as are necessary for adapting them to such

202 APPENDIX II

purpose, and in particular with the substitution of
" appointed " aerodrome for the approved ports specified in
the Aliens Restriction Order.

24. All persons importing or exporting or concerned in
importing or exporting goods, mails, or passengers into or
from the United Kingdom in aircraft and all pilots of air-
craft arriving in or departing from the United Kingdom
shall observe and comply with the provisions of sections
53, 76, 102, 104, and 118 of the Customs Consolidation Act,
1876, as if any references in such provisions to ships or vessels
and the masters or captains thereof, and to the loading or
unloading of goods thereon or therefrom, included references
to aircraft and the pilots thereof, and to the loading or un-
loading of goods thereon or therefrom, and as if references
in such provisions to a quay included a reference to an
examination station.

APPENDIX III

PRECEDENTS, DRAWN FROM THE GREAT WAR,
BEARING ON THE OUESTION OF THE
SOVEREIGNTY OF THE^AIR.

In this Appendix the writer gives, first, the substance of
the more important protests, explanations, etc., which
passed between each, in turn, of the various neutral
Governments concerned and the Government of the
aircraft which was alleged to violate the former's neutrality ;
secondly and thirdly, the instances of direct action by
neutral Governments against the offending aircraft them-
selves by way of [a) internment and (6) preventive forceful
measures respectively.

protests, replies, etc., illustrating the views of the
powers concerned on the question of air frontiers.

(i) Holland and the Belligerent Powers.

On 29 August, 1914, the German Government protested,
through its Minister at The Hague, against the seizure by
Holland of a German naval aeroplane at Schiermonnikoog
and claimed that it should be treated like a belligerent
warship. The Dutch Government, in Notes dated 11 Sept-
ember and 22 October, 1914, replied that aeroplanes and
liydroplanes could not be considered as warships ; their
very nature, their great liberty of action, the facility with
which they can carry out reconnaissances and escape from
all control, make them things sui generis and render special
treatment necessary — " such as bombardment [from the
ground] where a belligerent aircraft takes the risk of flying
over neutral territory."

In January, 1915, the Dutch Government addressed a

204 APPENDIX III

protest to Germany against the flight of a German airship
over Holland.

In a Note dated lo July, 1915, in answer to a German
protest of 20 May, 1915, against the internment of a German
airman who landed in Holland owing to an error of direction
and was interned, the Dutch Government stated : "If
an aeroplane is found over Dutch territory, it is immediately
a target for fire, this being the sole method of enforcing
respect for the territory's neutrality. If the aviator lands
on the territory of the kingdom, whether voluntarily or as
the result of the firing or for any other reason, he is interned
with his aeroplane. The fact that the aeroplane has flown
over Dutch territory, or even that it has merely landed there,
suffices to justify this measure."

In reply to a protest by the Dutch Government against
the flight of a German airship over Dutch territory on 18
August, 1 91 5, the German Government explained that
this " regrettable incident " was the result of special atmo-
spheric conditions which led the pilot astray. The German
Government added that since the beginning of hostilities
aircraft pilots had received the strictest orders never to fly
over the territory of neutral countries.

On 23 September, 1915, the Dutch Government addressed
a protest to Germany against the flight of two Zeppelins
over Dutch territory on 8 September, 1915. The Note
stated : "In the interests of the defence of the kingdom
as well as with a view to the maintenance of a strict neu-
trality, the Government of the Queen has forbidden foreign
aircraft to fly over Dutch territory. . . . The fact of
fl3dng over the territory of a State without its consent is
incompatible with respect for sovereignty. . . . The two
aircraft in question, after having perceived that they were
over the neutral territory of the Netherlands, at a distance of
only a few kilometres from the maritime frontier which
they had crossed unawares, have nevertheless pursued their
course above the country, towards the territory in German
occupation. By so doing, they have committed an act
incompatible with Dutch sovereignty and Dutch neu-
trality. . . . The German Government has more than once
declared that the strictest orders had been given to German
commanders never to fly over the territory of neutral
States. Recently, when a Zeppelin passed over Dutch
territorial waters, the Imperial Minister at The Hague
renewed this declaration in his Government's name. The
Queen's Government cannot, therefore, conceal its astonish-

THE SOVEREIGNTY OF THE AIR 205

ment that, in spite of these assurances, the number of cases
in which German aircraft have flown over Dutch territory
has increased."

On 14 October, 1915, some German airships, returning
from the great raid of 13 October on London, flew over
Holland, and the Dutch Government protested at Berhn.
The German Government " expressed its sincere regret and
attributed the incident to the thick fog, which rendered
navigation difficult."

On I February, 1916, the German airship L. ig, which
was subsequently wrecked in the North Sea and sank, after
an unsuccessful request to the British trawler " King
Stephen " for assistance, flew (as did also two other airships)
over Dutch territory and was fired at by the Dutch troops
in Ameland. On 6 February the Dutch Minister at Berlin
drew the attention of the German Government to " this
violation of Dutch territory." On 17 February the German
Government, on its side, protested against the action of the
Dutch forces in firing on L. 19, without any warning or
without taking account of the fact that the airship was
acting under force majeure in approaching Dutch territory.
The German Government stated that " the Dutch authori-
ties should have realised that the airship could not have been
over Dutch territory except as the result of force majeure,
it being known that the Imperial Government had given
its aviators the strictest orders to avoid flying over the
territory of neutral Powers, and to leave by the shortest
route when, through error, they found themselves over such
territory." The Dutch Government replied on 18 March,
1916, that it did not doubt the sincere desire of Germany to
" avoid all violation of neutral territory," but that the fact
remained that many such violations had occurred, and that
the Dutch Government had drawn the attention of Berlin
to them. It pointed out that the sole safe method of
avoiding these recurrent violations was for the aircraft
commanders " to keep at such a distance from the land and
sea frontiers of Holland as to escape all possibility of being
brought over Dutch territory, even by error or owing to
atmospheric conditions." ... "In the interest of national
defence, as well as for the purpose of maintaining a strict
neutrality, a neutral State is justified in opposing by force
every passage of its frontiers by belligerent aircraft, unless
they indicate by a white flag or other signal their intention
to land. Considerations of humanity may lead the authori-
ties to defer the resort to force until the aviator has been

2o6 APPENDIX III

warned that he is above neutral territory, but no such warn-
ing is obHgatory. Hence the Queen's Government, in
communicating to the Powers concerned the Royal Decree
of 4 August, 1914, forbidding foreign aviators to cross the
frontiers of the kingdom, signified that it could accept no
responsibihty for the consequences of an infraction of this
prohibition."

On 9 August, 1917, a German cadet airman having flown
over Dutch territory, the German Government apologised
and explained that he had lost his way in the clouds.

On 18 August, 1917, a German aeroplane squadron flew
over Dutch Territory, and the German Government ex-
pressed its regret for the violation of Dutch territory, but
excused the action of the airmen by the prevalence of thick
clouds and a strong south-westerly \\dnd. The Netherlands
Government was not satisfied with the explanation and
instructed its Minister to renew the protest. It also asked
for explanations from the British, French, and Belgian
Governments as to the supposed violation of Dutch territory
by their airmen at Schouwen.

On 28 December, 1917, the Dutch Minister for Foreign
Affairs issued an official statement that the British Govern-
ment had apologised for the violation of Dutch territory
in the neighbourhood of Breskens (Zealand) by seven
British aeroplanes and had added that the British Govern-
ment had given " special and emphatic orders to aU British
naval air forces to avoid Dutch territory in future,"

Between 1916 and 1918 the British and Dutch Govern-
ments exchanged a number of Notes relative to the intern-
ment of British seaplanes which were rescued at sea and taken
into Dutch ports. The correspondence is given in White
Paper " Cd. 8985." The British Government argued that
the seaplanes should not be interned because they " would
never have come into the possession of the Netherlands
Government at all if they had been left alone by the Dutch
subjects who brought them into the Netherlands ports."
The case of the Dutch Government was that a neutral State
is bound by international law to abstain from all action
which amounts to strengthening the armed forces of the
beUigerents. No question relating directly to the air
frontier arose, but the correspondence is noteworthy as
evidence of the different attitude taken by the British
authorities towards internment of machines towed into-
Dutch territory and those which entered it via the air, no-
protest having been raised in the latter case.

THE SOVEREIGNTY OF THE AIR 207

(2) Switzerland and the Belligerent Powers.

On 4 and 10 August, 1914, the Swiss Government issued
instructions to its troops that, subject to an officer's order,
they were to open fire upon all foreign aircraft flying over
Swiss territory. At the same time the belligerent Govern-
ments were notified that foreign aviators were forbidden to
fly over the territory of the Confederation and that all
necessary means would be employed to prevent their
passage. (See the Federal Ordinance of 4 August, 1914,
and the Note to France of 10 August, 1914, in R.D.I., 1915,
Documents, pp. 185, 187.) Subsequently, in April, 1916,
the instructions to the troops were made more stringent
and the rule requiring an officer's order to be given before
fire could be opened on a foreign aircraft was cancelled as
far as concerned all the frontier regions of Switzerland.

On 21 November, 1914, British and French aeroplanes
were stated to have flown across Swiss territory in their raid
upon the airship sheds at Friederikshafen, and the Swiss
Ministers in London and Bordeaux were instructed to lodge
energetic protests with the British and French Governments
and to demand satisfaction. The matter was the subject of
a question in the British House of Commons on 26 November,
1914, and Mr. Chm-chill, while stating that the naval airmen
who raided Friederikshafen were given instructions and a
marked map-route which should have kept them clear of
neutral territory, added that no agreement was reached at
the Paris Conference of 1910 in regard to the passage of
belligerent aircraft over neutral territory. In December,
1914, the French and British Governments' replies to the
Swiss protest were published. The French Government
expressed regret and stated that it wished Swiss neutrality
to be scrupulously respected by French troops, whether it
was a question of the actual territory or of the air above it.
The British reply stated that the aviators had formal in-
structions not to fly over Swiss territory, and if they had done
so, it must be attributed to accident and to the difficulty
of recognising at a great height the position of an aeroplane.
It stated that, in view of the proofs of passage advanced by
the Federal Council, the aviators acted contrary to the
Government's intentions and expressed its deep regret. It
added, however, that the orders given to the aviators and
the expression of regret were not to be interpreted as a recog-
nition by the British Government of the existence of a

2o8 APPENDIX III

sovereignty of the air. The Federal Council informed the
British Government that as International Law does not
recognise any limit to the sovereignty of the air, the Federal
Council must claim this sovereignty to its full extent. It
added that, since the mobilisation of the Swiss Army, it
had issued instructions accordingly.

On 21 September, 1915, a German aviator dropped bombs
at Porrentruy, and a German Note of 29 September, 1915,
in reply to the Swiss protest, stated that stringent precau-
tions had been taken to prevent a recurrence of the incident.
These, however, were unavailing, for on 17 October, 1915,
another German aeroplane threv/ eight bombs on Chaux-
de-Fonds, while yet another flew at the same time over
Porrentruy, but without dropping bombs. The Swiss
Government, on 20 October, 1915, lodged a vigorous protest
against " this new violation of Swiss neutrality," demanded
full and complete satisfaction, and asked for the punishment
of the aviators concerned and compensation for the victims.
A few months later the Swiss authorities had again occasion
to complain, for on 31 March, 1916, two German aeroplanes
flew over Porrentruy and dropped bombs there. The
Berne Government at once protested, reminding Berlin that
after the Chaux-de-Fonds incident the German Government
had warned its airmen against flying over Swiss territory.
The German Government expressed its regret and stated
that the responsible airmen would be punished and
removed.

A German aeroplane again flew over Porrentruy on 26
April, 1916, and dropped bombs at Delle. The Swiss
Government at once recalled its Minister at BerUn in order
to discuss with him the serious situation created by the
repeated violations of Swiss territory by German aviators.
On 28 April the Political Department at Berne published a
communique stating that the German authorities, on their
own initiative, had removed the guilty aviators from the
corps of aviators and had forbidden all flights on the Swiss
frontier.

In June, 1916, and April, 1917, further instances occurred
of flights by German aeroplanes over Swiss territory ; in
each case the German Government expressed its regret and
stated that the airman would be punished.

On 25 April, 1917, a French aeroplane dropped bombs on
Porrentruy and, in reply to the Swiss protest, the French
Government expressed its regret and agreed to pay for all
damage.

THE SOVEREIGNTY OF THE AIR 209

(3) Denmark and the Belligerent Powers.

On 31 January, 1916, a German airship passed over
Danish territory for a short distance near Vedsted and the
Copenhagen Government protested at BerHn. The German
Government expressed its regret and attributed its aviators'
error to the foggy weather.

On 14 February, 1916, a German seaplane flew over
Copenhagen, and the Danish Government, besides taking
direct preventive action at the time, lodged a formal protest
at Berlin.

In June, 1916, the Danish Minister of the Interior, ques-
tioned as to the flight of the German airship L. 24 over the
island of Fano, replied that warning shots were fired to inform
the airship that it was over Denmark.

(4) Sweden and the Belligerent Powers.

In July, 1916, a Provisional Order was issued prohibiting
foreign aircraft from flying over Swedish territory.

II

internments.

Note. — ^The place mentioned in each case is the place
at which the aircraft landed, unless otherwise stated.

(i) Holland :

14 Aug.

1914

German machine

Schiermonnikoog.

20 Aug.

1914

German machine

Oostburg.

17 Oct.

1914

Belgian or

French machine

Near Biervliet.

14 Dec.

1914

British machine

Breskens.

18 Dec.

1914

British machine rescued in open sea and
taken into Dutch port ; airmen re-
leased but machine interned.

24 Jan.

1915

French machine

Near Flushing.

3 Feb.

1915

French machine

North Beveland.

16 Feb.

1915

British machine

Not stated.

10 Mar.

1915

British machine

Not stated.

21 Mar.

1915

British machine

Saint Kauis, Zealand.

24 Mar.

1915

British machine

Not stated.

12 April

1915

German machine

Walcheren.

2 June

1915

British machine

Cadzand.

5 June

19^5

British machine

Axel, Zealand.

P

210

APPENDIX HI

(i) Holland : (cont.)

3 July igi5

21 July 1915

28 Aug. 1915

3 Oct. 1915

21 Nov. 1915

I Dec. 1915

ly Feb. 1916

28 Feb. 1916

19 Mar. 1916

24 April 1916

Sas Van Gent.
Wierickershaws.
Near Venlo, Dutch

Limburg.
Nieuwliet.
Schiermonnikoog.
Near Aardenburg.

Blerik,

25 May
9 Aug.

1916
1916

10 Nov. 1916

26 Feb. 1917

I Mar. 1917

22 April 1917

12 May 1917

22 July 1917

29 July 1917

5 Aug. 1917

6 Aug. 1917

7 Aug. 1917

12 Aug. 1917
18 Aug. 1917
18 Aug. 1917

23 Aug. 1917
28 Aug. 1917
18 Sept. 1917

British machine
British machine
German machine

British machine
German machine
German machine

Zeppelin, blown adrift, wrecked at
near Venlo ; seized and interned.
German machine Berghaven (Nimegen).
German machine Gelderland.
British machine, found drifting in sea out-
side Dutch territorial waters, brought
into Scheveningen ; airman released,
machine interned.
German machine Nieuwnahen.
German Machine Vlodrop, near

Roermond.
German machine Roosteren.

(Had been fired on by Dutch troops and
hit.)

Westkapelle.

Walcheren.
Near Heide.
Not stated.
Not stated.
Not stated.
Cadzand.
Ternauzen.
Oostburg.
Nes, Ameland.
Cocksdorp (Texel).
A German N.C.O. who had been put into a
Belgian boat as a " prize crew " by a
German seaplane, which descended in
Dutch territorial waters to capture the
boat, was seized by Dutch troops in a

8 Sept. 1916

17 Sept. 1916 British machine

Belgian machine
British machine
British machine
British machine
British machine
British machine
German machine
German machine
German machine

patrol boat.
German machine
German machine
German machine

(Had been shot
Sergeant Lok).
German machine
German machine
German machine

Schoondijk (Zealand).
Blyham (Winschoten) .
Beerta (Winschoten).
down by the Dutch

Elburg.

Valthermonde.

Breskens.

THE SOVEREIGNTY OF THE AIR 211

(i) Holland : (cont.)

25 Sept. 1917 Two German

machines Wielingen.
(One was attempting to tow away the
other, which had had a forced landing
in Dutch waters, when the former
was fired on by a Dutch torpedo boat
and damaged.)
25 Sept. 1917 British machine rescued in open sea and
towed into Dutch port ; airmen released,
machine interned.

29 Sept.

1917

German machine

Near Sas Van Gent.

29 Sept.

1917

British machine

Oostburg.

24 Oct.

1917

British machine

Westkapelle.

31 Oct.

1917

German machine

Near Holten.

I Dec.

1917

German machine

Near Brabant.

13 Dec.

1917

British airship C.26 Near Utrecht.

(Had drifted over Dutch territory and

when it was

found was empty ; the

aviator had dropped from it and was

found near Sliedricht.)

18 Dec.

1917

German machine

Limburg.

6 Jan.

1918

British machine

Brielle, South Holland.

19 Jan.

1918

British machine

Hengstdyk.

29 Jan.

1918

German machine

Oldenzaal.

II April

1918

British miachine

Sgravenhage.

4 May

1918

Two German

machines

Mouth of Scheldt.

4 June

1918

Two British

machines

Terschelling.

17 June

1918

British machine

Not stated.

27 June

1918

British machine

Not stated.

29 June

1918

British machine

Flushing.

I July

1918

British machine

Koudekerke.

31 July

1918

British machine

Not stated.

2 Aug.

1918

British machine

Not stated.

9 Aug.

1918

German machine

Schiermonnikoog.

16 Aug.

1918

British machine

Koudekerke.

16 Aug.

1918

British machine

Breskens.

5 Sept.

1918

British machine

Noorddijk.

15 Sept.

1918

British machine

Zierikzee.

15 Sept.

1918

Two other British

machines

Not stated.

17 Sept.

1918

British machine

Oosterhout.

25 Sept.

1918

British machine

Flushing.

26 Sept.

1918

British machine

Breskens.

28 Sept.

1018

British machine

Waterlandskerkje.
P 2

212

APPENDIX III

(i) Holland: (cont.)

2 Oct. 1 91 8 British machine

British machine
British machine

Not stated.

Sreede.

Ymuiden.

7 Oct. 1918
9 Nov. 1918

(Note. — The list of German and French machines given
above as interned in Holland is probably far from complete.)

(2) Switzerland :

8 April 1915
27 June 1915

3 Feb. 1916

June 1916

13 Oct. 1916

29 Jan. 1917

4 Dec. 1917

15 Feb. -— "

1918

12 Sept. 1918

(3) Denmark :

Dec. 1914

Dec. 1914

19 Dec. 1914

18 Feb. 1915

19 Feb. 1915

22 Aug. 1915

Dec. 1915

13-14 Dec. 1917

20 June 1918

19 July 1918

French machine
French machine
(Gilbert, pilot)
Itahan biplane ;
Valley, after
liberated as not
operation of war.
Italian machine
German machine
German machine
German machine
German machine

American

machine

German machine
German machine
German machine
German airship
(L3

Porrentruy.
Near Rheinfelden.

descends in Villegio

flying over Lugano ;

being engaged in any

Not stated.

Soleure.

Basel.

Not stated.

Inside Franco-Swiss

frontier

Fahy.

Fanoe.
Not stated.
Fanoe.

Fanoe.
(Airship, having stranded, set on fire by
crew ; crew interned.)
German airship Boersmose Strand.
(Schutte-Lanz.)

(Airship blown up by crew ; crew
interned.)

Near Fanoe coast.
Solberg, Jutland coast.

German machine
German machine
Two German

machines
German machine

Mano.
Valby, near

Copenhagen.
(Incident of Dr. Nicolai's desertion.)
Three British machines (after attack on
airship sheds at Tondern) ; Bramminge,
Esbjerg, and near Klegod.

THE SOVEREIGNTY OF THE AIR 213

(4) Norway :

3 May 1916 German airship

(L20.) Hafrsfjord, near

Stavanger.
(Wreck of airship blown up by Norwegian
authorities, crew liberated.)

(5) Sweden :

3 April 1 91 7 German balloon Cimbrishamn.

(6) Spain :

24 May 1918 British machine Spanish Morocco.

(Machine burnt, two occupants interned.)

(7) Bulgaria :

23 May 1915 Turkish machine, with German officer as
pilot ; Philippopolis.
8 June 1915 German machine Near Egri Palanka.

(8) Rumania :

22 May 1915 German machine Seileni, near

Constantza.
29 Dec. 1915 Austrian machine Droftiano.

(9) China :

6 Nov. 1914 German machine Near Tsingtau.

Ill

PREVENTIVE MILITARY ACTION BY NEUTRAL TROOPS.

Note. — Unless otherwise stated, the entry means that the
belligerent machine was fired at by the neutral country's
troops at the place named.

(i) Holland :

20 Aug. 1914

20 Aug. 1914
22 Sept. 1914

18 Mar. 1915
12 April 1915

21 July 1915

8 Sept. 1915
10 Sept. 1 91 5

German airship Zevenaar.
German aeroplane Beek.
Unknown Maastricht,

machine
(Also pursued by motor-cars.)
German machine East of Knockc.

German machine
Unknown

machine
Two German air-
ships
German airship

Walcheren.
Sas Van Gent.

Hoof dorp and

Wcrkendam.
Roosendaal.

214

APPENDIX III

(I)

Holland

; (cont

14 Oct.

1915

27 Jan.

1916

I Feb.

1916

25 May
29 July

1916
1916

•)

3 Aug. 1916

23 Aug. 1916 GeiTuan airship

25 Aug.
2 Sept.

8 Sept.

8 Sept.
26 Sept.

2 Oct.

2 June

6 June

17 June

6 Aug.

9 Aug.
9 ^'^ug.

1916
1916

1916
1916
1916
1916

1917
1917
1917

1917
1917
1917

18 Aug. 1917
18 Aug. 1917
22 Aug. 1917

25 Sept. 1917

German airships, returning from raid on

England ; North and South Holland.
German airship Dutch - Belgian

frontier.
German airships, returning from raid on

England ; Ameland. (L.19 hit.)
German machine Nieuwnahen.
German airship, returning from raid on

England ; Sluis-Kil.
German airships, returning from raid on
England ; Terschelling, Egmont and
ZwoUe.

Meerssen (near

Maastricht).
Maastricht.
Flushing.

German airship
Machines of un-
known nation
ality
German machine
German airship
German airship
German airships,

Roost eren.
Schiermonnikoog.
Texel.
returning from raid

on

England ; Cocksdorp (Texel).

German airship
German airship
German airship

Bellingwolden.
Terschelling.
Between Harlingen

German machine
German machine
German machine

and Groningen.

Cocksdorp (Texel).
Sas Van Gent.
Eindhoven (North

Brabant).
German machine shot down (by the Dutch

Sergeant Lok) at Beerta (Winschoten) .
Large number of Territorial waters

machines near Westcapelle.

Four airships observed at Assen and
pursued by a military motor-car armed
with machine guns through Vriez, Zuid-
laren and Kropswolde, but the aircraft
flew at such a height that firing at them
would have been useless.
German machine Wielingen.

(Fired at by Dutch torpedo boat in the act
of attempting to tow away another
German seaplane which had come
down in Dutch waters.)

THE SOVEREIGNTY OF THE AIR 215

(i) Holland : (cont.)

27 Sept. 1 91 7 German machine

20 Oct. 1917
18 Mar. 1918

(2) Switzerland :

3 Feb. 1916
6 July 1917

4 Dec. 1917
13 Mar. 1918

(3) Denmark :
12 Feb. 1916

I June 1 91 7

(4) Sweden :

I June 1917

II June 1917

16 June 1917

(5) Roumania :

17 July 1915

German airship
Squadron of

airships

Italian machine
German machine
German machine
British or French
machine

Pannerden (West-

phalian frontier) .
Ymuiden.
Katwyk.

Over Lugano.
Inside Rhine frontier.
Not stated.
Over Lake Constance.

German machine having flown over Copen-
hagen, Danish officer goes in pursuit in
monoplane.

German airship Koege.

Three German Ysted.

airships

German airship coming within the Swedish
territorial line in the Aaland Islands, is
forced to turn about by a Swedish
torpedo boat.

German airship Cimbrishamn.

Unknown aircraft .flying over Roumania,
is pursued by Roumanian aircraft.

Neutral Aircyaft penetrating Belligerent Atmosphere.

Professor Rolland in R.D.I., 1916, p. 591, states that
" Up to the present [autumn of 1916] no incident has been
reported arising from a flight by neutrals over belligerent
territory." There appears, however, to have been a case
in February, 19 16, when it was reported from Bucarest that
Roumanian aeroplanes flew over Bulgarian territory and
were heavily fired upon by the Bulgarian troops.

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Malcolm, Reports of Civil Aerial Transport Committee, London,
1918 (D. O. Malcolm, Secretary ; E. H. Tindal Atkinson,
Asst. Secretary).

Manduca, La responsabilitd penale dei reati commessi nello spazio
aereo e la giurisdizione istruttoria, 1891.

Martini, Laproprieta dello spazio aereo, " Rivista delle Comuni-
cazioni," January 1911.

BIBLIOGRAPHY 223

Matter, L' aviation et le droit dc chacun, in " La Revue Bleue,"
6 Feb., 1910.

Meili, Das Lufischiff ini internen Recht imd Volkerrecht, 1908.
{Resume of above in French in the " Journal du Droit
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Ballons, Flugmaschinen, LuftscJiiffe, und die Jurispriidenz,

1908.
Das Lufischiff und die Rechtswissenschaft, in " Blatter der

vergleichenden Rechtswissenschaft und Volkswirtschafts-

lehre," 1909, p. 250.

Dig Luft in ihrer Bedeutung fur das modernste Verkehrs- und

Transportrecht, in " Blatter fiir Rechtsanwendung," vol.
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/ problemi giuridici delta aviazione, " Rivista delle Comuni-

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// prima Congresso Giuridico Internazionale di Verona per

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Le programme du premier Congres internationat juridique

de ta navigation aerienne, in " Luftschiffahrt, Flugtechnik
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Menir, L'aviation et les secours aux btesses mititaires, R.J.L.A.

1914, p. 116.
Merignh.\c, Le domainc aerien prive et puhtic et tes droits de

l'aviation en temps de paix et de guerre, R.D.I. 1914, p- 205.

Meurer, Liiftschiffahrtsrecht, 1909.

Meyer, Die Luftschiffahrt in kriegsrechtticher Beleuchtung, 1909.

Die Erschliessung des Luftraums in iJiren rechttichen Folgen,

1909 (Resume of above in French in the " Journal du Droit
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Paper on aircraft and war. Proceedings of Congress of

Verona, 1910 {see De Valles).

Quelques points du droit aerien, R.J.L.A., 1910, p. 37.

Le droit aerien a ta session de t'Institui de Droit Internationat,

R.J.L.A., 1911, p. 297.

L'aviation etle droit puhtic, R.J.L.A., 1912, p. 181.

Das Schadensersatzrecht der Luftfahrt nach gettendem Recht

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Moedebeck, Die Luftschiffahrt, ihrc Vergangenhcit und ihre
Zukunft, 1906.

224 BIBLIOGRAPHY

MoNTENOT, La circulation aerienne envisagee au point de vue
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MuMM, La navigation aerienne et le droit, in " Les Documents du
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Myers, L' assurance sur la vie et I'aviation, R.J.L.A., 1913, p. 65.

Neubauer, Die Ausgestellung der Luftschiffahrt in ihren mut-
masslichen Wirkungen auf das Rechtsleben, in " Die Gerichts-
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Neumeyer, Zur Geschichte des Luftschiffahrtsrechts, in " Zeit-
schrift fiir Volkerrecht und Bundesstaatsrecht," 1909, p. 378.

Nys, Droit et aerostats, Report presented to Institute of Inter-
national Law,"Annuaire de I'lnstitut de Droit International,"
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Pappafava, Uber die rdumliche Umgrenzung des notariellen
Wirkungskreises und zwar auf dem Lande, dem Wasser und
im Luftraum, 1901.

■ Paper on jurisdiction and procedure. Proceedings of Congress

of Verona, 1910 {see De Valles).

Das Zusammenwirken der Kulturstaaten zum Zwecke einer

Vereinheitlichung des Luftschiffahrtsrechts, 1913.

Paris, Conference iniernationale de navigation aerienne, Proces-
verbaux des seances et annexes, 18 Mai — 29 Juin, 1910,
Imprimerie nationale, Paris, 1910.

Passion, Rapport sur la legislation nationale aerienne, presents
au Comite de Tourisme Aerien du Touring Club de France,
in the " Revue Aerienne," 10 and 25 April, 1909.

Paper on the right of property in the air, R.J.L.A., 1912,

p. 5.
Perowne, Report on the Freedom or Sovereignty of the Air,

28th Report of International Law Association (Madrid

Session), 1914, p. 529.
Peyrey, La jurisdiction de I'atmosphere, in " L'Auto," 21 Dec,

1908, 2, 4, 7, and 8 January, 1909.

Philit, La guerre aerietme, 1910.

La guerre aerienne devant le droit, R.J.L.A., 1912, p. i.

PiTTARD, Paper on the rules of aerial circulation. Proceedings
of Congress of Verona, 1910 {see De Valles).

La legislation sur la circulation aerienne en Suisse, R.J.L.A.,

1911, p. 73.

BIBLIOGRAPHY 225

PoRRONE, Esfensione del concetto di zona di froniiera, in the "Atti
del primo Congresso Nazionale di locomozione aerea,"
Turin, 1910.

Reid, The use of explosives in aerial warfare, Journal of Royal
United Sendee Institution, June, 191 1, p. 735 {see p. 744
as to bearing of Hague Convention on the question).

RiccHiNi, Delia natura giuridica dello spazio aereo secondo il
Diritto privato, 1910.

Richards, Sovereignty over the Air, 1912.

RoLLAND, L'accord franco-allemand du 26 Juillet 1913 relatif a
la navigation aerienne, R.D.I., 1913, p. 697.

Les pratiques de la guerre aerienne dans le confiit de 1914

et le droit des gens, R.D.I., 1916, p. 497.

Rosenberg, Die zivil- iind strafrechtliche Haftung des Luft-
sckiffers, in the " Deutsche Zeitschrift fiir Luftschiffahrt,"
1901, Vol. v., pp. 89-93, 123-126.

Sarfatti, Paper on delicts and quasi-delicts in the air. Pro-
ceedings of Congress of Verona, 1910 {see De Valles).

ScHMOLL, L'aviation devant la justice, R.J.L.A., 1912, p. 33.

Paper on domicile in connection with aircraft damage,

R.J.L.A., 1914, p. 3.

ScHROEDER, Der Luftflug, Geschichie und Recht, 191 1.

SciOLLA (BoRTOLo), Paper on Licenses and industrial property:
Proceedings of Congress of Verona, 1910 {see De Valles).

SciOLLA (Odone), Paper on Insurance. Proceedings of Congress of
Verona, 1910 {see De Valles).

S6e, Les lois experimentales de l'aviation, 191 1.

SoTERO Mele, La teoria del sottosuolo e dello spazio aereo, 1910.

Spaight, War Law for Aircraft, in " Army Review," April, 1914,

P- 455-
La reglementation de la guerre aerienne, R.J.L.A., 1914,

p. 129.

Aircraft in War, 1914.

Sperl, Vortrdge iiber die Rechtsfragen der Luftschiffahrt, in
" Allgemeine Osterreichischc Gerichts-Zeitung," 26 Nov.,
1910.

La navigation aerienne au point de vue juridique, R D.I.,

1911, p. 473.

Die Luftschiffahrt vom Standpunkte der Rechtswissenschaft

1911.

226 BIBLIOGRAPHY

Sperl, Schadensersatz filr Schdden diirch Luftschiffe und Flug-
maschinen, igi2.

Talamon, Paper on Exterritoriality in aerial locomotion,R. J.L.A.,

1911, p. 203.
TiNDAL Atkinson, see Malcolm.

Trentin, // diritto dello Stato sullo spazio aereo, " Rivista delle
Comunicazioni," June, 1910.

Paper on the functions and powers of States in regard to

aviation. Proceedings of Congress of Verona, 1910 {see De

Valles).
Valentine, The Air — A Realm of Law, " Juridical Review,"

Vol. XXII, p. 85.
Verona, see De Valles.
Verspeyen, La locomotion aerienne, in the " Journal des Tri-

bunaux," Brussels, 7 Nov., 1909.

Viola, La Telegrafia senza fill e la navigazione aerea nei loro
rapporti col diritto internazionale, 1912.

Von Bar, Observations et pro jet sur le regime des aerostats,
"Annuaire del'Institut de Droit International," 1910, p. 314.

Von Lyncker, Das Recht der Luftschiffahrt in privatrechtlicher
Beziehung auf Grund der heutigen Gesetzesquellen, 1909.

Von Pfuhlstein, Die privatrechtliche Stellung des BallonfUhrers,
" Deutsche Zeitschrift fiir Luftschiffahrt," 1910.

Wallace, Chapter on Law in Grahame-White and Harper's
The Aeroplane, Past, Present, and Future, 1911, p. 282.

Warschauer, Litftrecht, 19 10.

Weck, Deutsches Luftrecht, 1913.

WiLHELM, De la situation juridique des aeronautes en droit inter-
national, " Journal de Droit International Prive," 1891,
p. 440.

Wilson, Aerial Jurisdiction, " American Political Science
Review," May, 1911, p. 171.

Wurth, Luftzollrecht.

Aeronautique et administration douaniere, R.J.L.A., 1912,

p. 65.

Zitelmann, Luftschiffahrtsrecht, in " Zeitschrift fiir Internation-
ales privat und offentliches Recht," 1909, Vol. XIX, p. 458.

Les questions du Droit de la locomotion aerienne, R.J.L.A.,

1914, p. 97.
Die RecJitsfragen der Luftfahrt, 1914.

BIBLIOGRAPHY 227

ZoccA Rosa, Paper on guarantees of capacity of constructors;
Proceedings of Congress of Verona, 1910 {see De Valles).

ZoRN, Liiftschiffahrtsrecht, in " Das Juristische Literaturblatt,"
15 Dec, 1909.

Note. — In addition to the special works and papers included
in the above Bibliography, there are valuable references to the
law of the air in many of the standard works on International
Law. Mention may be made of Professor Pearce Higgins's
edition of Hall's International Law, 1917 ; Lawrence, Intcr-
jiational Law, 4th ed., 1910 ; Nys, Le droit international — les
principes, les theories, les fails, 1912 ; Bonfils-Fauchille, Manuel
de droit international public, yth ed., 1914 ; Nippold, Die zweite
Haager Friedskonferenz, II. Das Kriegsrecht, 1911 ; Suarez,
Tratado de derecho internacional publico, 1916 ; Erie Richards,
International Law, Some Problems of the War, 1915 ; De Louter,
Het stellig Volkenrecht, 1910 ; I. 328-9 ; II. 346-52 ; Foignet,
Droit international public, 1913 : 3*" partie, III, Domaine aerien ;
5^ partie, Guerre aerienne.

Q2

INDEX

Accident, see Damage

Accord, Franco-German of 1913,

45. 49. 51. 133. 134

Aerodromes, Marking and lighting
of, 94, 164-167 ; use of by-
foreign aircraft, 58, 143 ; licen-
sing of, 185 ; inspection of, 186

Airship L. 19, Case of, 9-10, 205-206

Airways, Establishment of inter-
national, 140, 145

Airworthiness, Certification of, see
Certification

" Appointed " aerodromes, 184-185,
196-202

Areas, Prohibited, 7-8, 48-50, 13S,
183, 188, 194-195

Arms, Carriage of, in aircraft, 143

Assistance to aircraft in distress,

143
Austrian Ordonnance of 1912, 51
Automobile Convention of 1909,

15. 23, 29

Ballast, Dropping of, 94, 164, 179,
186

Belligerents of 191 4-1 8 and the
sovereignty of the air, i-ii,
203-215 ; not bound by Inter-
national Air Convention in future
wars, 148

Bill, Aerial Navigation, of 1910-11,
58, 80-81, 102, 118

Bill of lading to be carried, 142

Birth on an aircraft, 11 3-1 14

Brussels Convention on Collisions
at sea, 30

A:rchaft in peace aag

Bulgaria, and the closing of air

frontiers, 213
Bureau Veritas for aircraft, 38

Carriage of passengers and goods.
Reservation to national aircraft,
II, 51, 141

Certificates of aircraft. Period of
validity of, 41, 193

Certificates of departure, 45-46,
47-48, 198

Certificates of registration, 138-139,
141, 150, 190 ; suspension of,
109-110, 179

Certification of aircraft and per-
sonnel, 28-43, 139-141, 150, 154,
167-175, 183-184, 186-188, 190-
194

China and the closing of air fron-
tiers, 213

Civil Aerial Transport Committee,
I. 39. 81

Clearance for aircraft journeys,
45-47, 69, 198-201

Cohen v. S.E. d: C.R., 128

Collisions, 89-100

Comite Juridique International de
I'Aviation, Views as to sover-
eignty of the air, 5 ; as to
nationality of aircraft, 14 ; use
of term port d' attache, 17 ; rule
as to nationality of company-
owned aircraft, 22 ; as to
landing, 53, 58 ; as to damage,
79, 83 ; as to wrecks, loi ;
discussion of enforcement of
defence and immigration laws,
log ; view as to jurisdiction,
113 ; as to births, deaths, and
marriages on aircraft, 11 3-1 14;
as to questions of discipline, etc.,
129

230

INDEX

Commission, International, of Air
Navigation, 139, 140, 141, 143-
144. 145-146, 154. 176

Competence, see Jurisdiction

Conference of Paris, 1910, see
Paris ; of Verona, see Verona

Connecticut draft Act of 191 1,
35. 36. 41

Construction, Place of, as governing
aircraft's nationality, 13-14 ; con-
trol of, to ensure airworthiness,
39-40, 186, 192

Contracts made in the air, 120-121,
127, 129-130, 142

Convention, Automobile, of 1909,
15, 23, 29 ; on Safety of Life at
Sea, 30, 41, 104 ; on Collisions
at Sea, 30 ; Maritime Conven-
tions Act, 98-99 ; on Marriage,
Divorce, and Guardianship of
Minors, 119; International Air
Navigation, 1919, 11, 22, 26, 39,
43, 48, 50, 52, 62, 70, 92-94, 102,
109, 120, 133, 135, 137-181

Corporations, Nationality of air-
craft belonging to, 21-23, 27,
139, 190

Corridors of entry, 48-50, 68, 176-
179

Courts competent to deal with
aerial crimes, etc., see Jurisdiction

Crashes, Damage done in, see
Damage ; notification of and
first aid after, 104-105

Crew, Nationality of an aircraft's,
26 ; questions of discipline,
wages, etc., 128-130 ; licensing

of. 34-43. 139-140, 167-175, 183,
I 90-1 9 I
Crimes in the air, 107-108, 1 10-125,

129, 142
Cujus est solum, Doctrine of, 54
Customs, 52, 61-73, 109, 147,
176-181, 196-202 ; customs air-
craft, 134. 144

Decrets, French, of 1911-1914, 8,
15, 21, 23, 24, 25, 35, 51, 59, 62,
91-92, 94, 102, 132, 134-135

Defence regulations, Enforcement
of, 109, 129, 142

Denmark, Action of, to enforce
respect for her air frontiers, 209,
212, 215

Departure of aircraft for abroad,
past and present rules, 45-48,
141-142, 176-179, 184, 196-202

Derelict of the seas, 103

Discipline, Questions of an aircraft
crew's, 128-130

Distress signals, see Signals ; assis-
tance to aircraft in distress, 143

Drawback on exports, 73

Dutiable goods, see Customs

E

Entry and landing of foreign air-
craft, 44-60, 140-142, 176-181,
184, 185, 187, 196-202 ; of
military aircraft, 131-133. 144 ;
of other State aircraft, 134-135,
144

Espionnage by aircraft, 47-48,
108-109, 133-134, 188

Exchange of registration lists, 139

Execution of foreign judgments,
111-112

Exhibition flying, 185

Experiment, Aircraft built for the
purpose of, 183

Explosives, Carriage of, by aircraft,
143

Exports by air, see Customs

Exterritoriality of aircraft, 1 31-132,
134-135, 144. 187

Extradition for aerial crimes, iio-
m

D

Damage by aircraft, 74-88 ; general
principles of law, 75-78 ; plea
of force majeure, 78 ; theory of
risk and theory of fault, 79-80 ;
absolute liability, 80-81 ; en-
forcement of right to indemni-
fication, 82-88, 107-108, no,
125-126, 129-130

Declaration of dutiable articles,
177-181, 198-202

F.A.I., Rules of, 14, 36, 92, 94

" Fault, Theory of," 79

Fees for registration and certifica-
tion, 40, 190, 191, 192

Fiscal Laws, Enforcement of re-
spect for, 109, 129, 142, 179

Flag, Law of the, 15, 16, 25, 95,
113-115, 123-126, 130-131, 142

INDEX

231

Flight over private property, Right
of, 54-56, 140, 178-179

Force majeure in damage cases,
78-82

Forms of entry of dutiable goods,
72-73, 199-200

France and the sovereignty of the
ail, 7-8, 207-208; closing of
frontier in 1911-1913, 8, 49;
draft act of 1913, 58, 62, 80, 85,
102, 133 ; law as to maritime
collisions, 99-100 ; law as to
derelict at sea, 103

Franco-German Accord, see Accord

Freedom of the air, 4-1 1, 137-138

French Decrets, see Decrets ; law
as to damage, 76-78

Frontiers, Air, i-ii ; customhouses
must move back from, 63-65 ;
doctrine of the " volume fron-
tier," 115, 130

Germany and the sovereignty of
the air, 2-3, 9, 203-209 ; Accord
with France in 1913, 45, 49, 51,
133. 134 ." closing of frontiers in
1913. 7. 49

Goods aircraft, 184 ; and see
Carriage, Certification, etc.

Great Britain and the sovereignty
of the air, 3-7, 206-207 >' closing
of frontiers in 1913, 7, 45-49 ;
Home Office Regulations, see
Home Office ; Air Navigation
Regulations, see Navigation ; draft
act of 191 3, see Bill, Navi-
gation

Guille V. Swann, 76

H

Holland, Action of, to enforce
respect for air frontiers, 9-10,
203-206, 209-212, 213-215 ; draft
law of 1913, 37

Holmes v. Mather, 75

Home Office Regulations, 1913, 7, 45,
50, 51. ^2

I

Immigration laws, enforcement of,

109, 129, 201-202
Imports by air, see Customs

Innocent passage, 5, 137-138, 140

Institute of International Law,
View as to air sovereignty, 5 ;
as to nationality and registration
of aircraft, 14

Insurance against damage by air-
craft, 79, 82, 83-87

International Commission of Air
Navigation, see Commission

International Law Association, View
as to air sovereignty, 5

Internment of aircraft, 2, 9-10,
203-213

Interpretation of International Air
Convention, 147 ; of Air Naviga-
tion Regulations, 189

Judgments, Foreign, Execution of,
111-112

Jurisdiction in case of damage,
82-85, 95-96 ; for enforcement
of flying regulations, 94-95 ; in
case of crimes, torts, etc., 107,
117-130, 142

Landing, Right of, and rules as to,

II, 44, 46, 50-54, 57-60, 65,

68-71, 142-143, 144, 176-181,

184, 187, 196—202 ; signals for,

see Signals
Law of the Flag, see Flag ; law

applicable in damage cases, 82-

83 ; in collision cases, 95—100 ;

in the air generally, 106-135,

142
Legal relations between persons

on board aircraft, 120, 142
Legrand case, 77
Liability for damage and collision,

see Damage and Collision
Licensing of aerodromes, 185
Licensing of pilots and crew, 34-43,

139-140, 167-175, 183, 190-191 ;

cancellation or suspension of

licences, 66, 188
Lights, Rules as to, 90-92, 143,

157-161, 183, 196
Lloyd's Register for aircraft, 37-39
Log-books, 142, 154-156, 177-179,

184, 186, 187, 194
Low flying, 56, 59, 185

232

INDEX

M

Mails, see Postal aircraft
Manifests, System of, for dutiable

goods, 65-66, 142, 177-180, 198-

202
Maps, Aeronautical, Publication of,

146-147, 175
Maritime collision, Bntisn and

French law as to, 98-100
Maritime Conventions Act, 98-99
Maritime precedents and air law,

17-20, 115-116
Marking of aerodromes, 147, 164-

167
Marking of aircraft, 149-153, 183,

194
Marriage on an aircraft, 11 3-1 14
Massachusetts, Law of, as to avia-
tion, 25, 35, 41, 42, 59, 81, 92
Merchant Shipping Acts, 18-19,

30-32, 99
Meteorological information, 146-

147. 175
Mihtary aircraft, 131-134, 144, 186,

187

N

National aircraft. Reservation of
right of carriage of persons and
goods to, II, 51, 141

Nationality of aircraft, 12-27,
138-139 ; nationality marks,
149-153, 183, 190, 194

Navigation, Aerial, Bill of, 1910-11,
see Bill

Navigation, International Com-
mission of Air, see Commission

Navigation Regulations, Air, 1919.
27, 40-41, 42, 50, 52, 59, 69, 71,
72, 93, 182-202

Neutrality and air frontiers, 1-4,
9-10, 148, 203-215

Norway, enforcement of respect for
her air frontiers, 213

Nuisance, Legal, through low fly-
ing, 56, 186

O

Overhaul before flight. Compulsory,
40-41, 193

Passenger aircraft, Certification of,

33-34. 37. 40. 183-184. 192-193
Passenger steamers. Certification of,

30-32

Passengers, List of, to be carried,
142

Passports, 44, 48

Patents, Infringements of, by visit-
ing aircraft, 141

Pennsylvania, Rules of Aero Club
of, 36

Photographic apparatus. Carriage

of, 143
Pilots, Certification and hcensmg

of, 34-43. 139-140, 167-175.

183, 186-187, 190-191
Pohce aircraft, 134, 144, 147
Port d'attache as governing nation-

aUty, 16-17, 20-21, 117
Postal aircraft, and carriage of

mails, 70, 134, 144, 147, 177-179.

183, 197
Private property, Right of flight

over, 54-56, 140, 178-179, 189 ;

right of landing on, 53-54, 57-6o,

189
Prohibited areas, see Areas
Property, Private, see Private
Protection of aviators, 58-59, 143,

167
Prussian Ordinance of 1910, 36
Public aircraft, 131-135. i44. ^86,

187

R

Registration of aircraft, 12-27,
138-139. 141. 149-153. 183, 187,
190 ; of ships, 18-19

Regulations, British Air Naviga-
tion, 1 91 9, see Navigation ;
Home Office, 1913, see Home
Office ; Serbian, see Serbian;
French, see Decrets ; see also
Comite Juridique, F.A.L, etc. ;
enforcement of flying regulations,
94, 108, 129, 142, 143, 187-188

" Risk, Theory of," 79

Roumania and the closing of air
frontiers, 213-215

Rules of the Road. 89-94, 143.
183, 162-164, 196

Rylands v. Fletcher, 76, 78

P. and O. Co., v. Shand, 128 ,
Paris Conference of 1910, 5-7,

14, 22, 25, 35, 41, 42, 48, 58, 61,

65. 90, 134

Safety provisions for land, sea,
and air vehicles, 28-33 ; of life
at sea. Convention on, 30, 37, 41,
104

INDEX

233

Salvage of wrecked aircraft, 100-

104. 143

Seacraft and aircraft, Difference
between, 17-21, 11 5-1 16

Serbian regulations as to aviation,
2, 36, 63, 134

Shipping Acts, Merchant, see Mer-
chant

Ships, Registration of, 18-19 ;
detention of foreign, in case of
damage, 85

Signals, Landing and distress. Rules
as to, 90, 92, 138, 140, 161-162,
183, 196

Smuggling by air, 66-68

Sovereignty of the air, i-ii, 137,
138. 142, 144, 178 ; precedents
of 1914-1918 bearing upon,
203-215

Spain and the closing of air frontiers,
213

Sped, Proposal of Professor, as to
damage, 83-85

State Sovereignty, see Sovereignty
and Jurisdiction ; state aircraft,
131-135. 144. 186, 187

Steamships, Certification of, 30-32

Stowell, Lord, on maritime col-
lisions, 98

Suspension of certificates of regis-
tration, see Certificates of regis-
tration ; of licences, see Licences

Sweden and the Sovereignty of the
air, 209, 213, 215

Switzerland and the Friederiks-
hafen raid, 3-4, 207 ; action of,
to enforce respect for air frontiers,
207-208, 212, 215

Syndicat General de I'Aviation,
Rules of, 35, 57, 89, 102

Taking off and alighting, Rules for,

94, 164-167
Territorial State, Jurisdiction of,

see Jurisdiction
Testaments made in the air,

128-129

Torts committed in the air, 96-97

107-108, no, 119-129, 142
Traffic in vicinity of aerodromes,

Rules for, 164-167
Training flights, 184
Transport Committee, Civil Aerial,

see Civil
Trespass by aircraft, 55-60, 189
Trick flying, 59, 185
Triptych and aircraft journeys, 6r,

178
Type aircraft. Certification of, 40,

192-193

V

Validity, Period of, for aircraft
certificates, 41, 193 ; for pilots'
and crew's certificates, 42, 175,
191

Vaughan v. Taff Vale Railway Co.,
78

Verona, Congress of, 1910, 25, 57,
79

" Volume Frontier," Doctrine of,

115. 130

W

Wages, Questions of an aircraft

crew's, 128-130
War, Effect of, on International
Air Convention, 148 ; precedents
from war of 1914-18 bearing
upon question of air sovereignty,
203-215
Water, Right of alighting upon, 53
Wills made in the air, 128-130
Wireless apparatus, 40, 140, 141-

142, 146-147, 183, 187
Wrecks, 100-105, 143

Zierikzce, Incident of, 3

PRINTED IN GREAT BRITAIN BY H. CI.AY AND SONS, LTD.,
BRUNSWICK STREET STAMFORD STREET S.U. I AND DUNCiAY, SUKKOLK.

WORKS BY THE SAME AUTHOR,

And Extracts from Reviews.

WAR RIGHTS ON LAND. Macmillan & Co., Ltd., 1911.

". . . . Toutes les questions que souleve ainsi la guerre sur
terra ont ete etudiees par I'auteur, et elles I'ont ete de la fa9on la
plus remarquable. Ce qui fait de I'oeuvre de M. Spaight un travail
de tout premier ordre, ce sont les nombreux renseignements pratiques
qu'elle renferme . . . ." — Reviie de Droit International, 'M^y, 191 1.

". . . . Nothing that we have read goes straighter to the heart of
problems ; nothing solves them with a more accurate and decisive

touch or with greater fairness " — Law Magazine and Review,

August, 191 1.

". . . . Mr. Spaight's admirable treatise, lFa>' i?j^/j<s ow Lawcf. . . ."
— Prof. Sir L. J. Grant, in the Scotsman, 21 November, 1914.

" Of Mr. Spaight's War Rights on Land let it be said at once and

without qualification that it is an admirable work " — The

Spectator, 16 March, 1912.

". . . . The book is of special interest to both students and teachers
of International Law. Dealing with recent movements to mitigate
the horrors of war by international agreements and illustrated by
data of the most recent conflicts, its subject-matter is of general
interest and is presented in an attractive narrative style through-
out . . . ." — American Political Review, November, 191 1.

" This book goes most thoroughly into the subject of International

Law so far as land forces are concerned in war The whole

forms a most interesting and instructive book." — War Office General
Staff critique in Journal of the R.U.S.I., November, 191 1.

". . . . The author of this book has not fallen into the common
error of writing for soldiers and laymen merely as a la^\yer ; he has
made his subject deeply interesting and has illustrated it by a wealth
of examples from modern campaign history . . . ." — United Service
Magazine, 19 May, 191 1.

AIRCRAFT IN WAR. Macmillan & Co., Ltd., 1914.

" . . . . Such futilities as the idea that it is possible to forbid or
restrict the warlike use of aircraft, or, again, that ' the air is free '
(in the sense that a State has not an unqualified sovereign right to
exclude foreign aircraft from its air space) are effectively disposed of —
one would like to think, for ever. But Dr. Spaight has far more
living questions than these to discuss, and he handles them with such
agreeable lucidity as to lend a charm even to the constipated formulae
of International Law " — The Times, 31 July, 1914.

" . . . . Dr. Spaight's volume as a whole is sufficiently clear and
free from technical difficulties to make it extremely interesting to
every class of intelligent reader who desires to be informed upon the
rapidly changing conditions of modern warfare . . . ." — Daily Tele-
graph, 5 August, 1914.

" . . . . An author well acquainted with the regulations of inter-
national warfare — an author, moreover, who writes with clear brevity
and unclouded sense . . . ." — Saturday Review, 15 August, 1914.

" . . . . Dr. Spaight tries to frighten us with a terrible picture of
London under a hailstorm of explosives, drawn perhaps under the
inspiration of Mr. H. G. Wells's romance . . . ." — The Economist,
15 August, 1914.

". . . . Dr. Spaight's excellent and well-matured treatise . . . ."
— Flight, 14 August, 1914.

" . . . . Dr. Spaight's book is a valuable and interesting essay —
necessarily tentative in its nature — on the laws of aerial warfare." —
Daily News, 11 September, 1914.

UNIVERSITY OF CALIFORNIA LIBRARY

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