International aerial regulations

              ' ' '
·~
AIR SERVICE INFORMATION CIRCULAR
<AVIATION>
PUBLISHED BY THE CHIEF OF AIR SERVICE. WASHINGTON, O. C.
at
The Air ~rvice Engineering Division
McCook Field, Dayton, Ohio
Ralph Brown Drangho
. LIBRA.RV .
MAY 2 9 2013
Non·Oepoif ory ,
Auburn University
I
I
File A00.51 /5
AIR SERVICE INFORMATION CIRCULAR
( AVIATION )
PUBLISHED BY THE CHIEF OF AIR SERVICE, WASHINGTON, D. C.
Vol. VI July 15, 1926 No. 566
INTERNATIONAL AERIAL REGULATIONS
Prepared by
Capt. Rowan A. Greer, J. A. G. D., U.S. Army
Representative of the Judge Advocate General1s Department
at
The Air Service Engineering Division
McCook Field, Dayton, Ohio
WASHINGTON
GOVERNMENT PRINTING OFFICE
1926
•
I
TABLE OF CONTENTS
Chapter Page
I. HISTORY OF AVIATION LA ws __ - -- - - -- - - - - - - -- -- - - -- - - - - -- - --- - - - - - - - - - - - - - - -- - - - - - - - --- - 1
II.
III.
I V.
Need for jurisprudence applicable to aeronautics-D fining the term "Law"-Early refer­ences
to flying-First practical balloon flights- First instance of use of balloons in warfare--­Balloon
school founded near Paris-First jurisdiction over aircraft brought up in Hague Peace
Conference, 1899-Fauchille, pioneer in this field of investigation- Failure of Westlake code
in 1906-First international conference on aerial navigation instigated by French in 1910-
fany laws passed in period between 1910 and opening of World War- First international
agreement in natw·e of treaty affecting aircraft made between French and Germans in 1913-
Aeronautic Commission created in 1919-Wadsworth "Civil Aeronautics Act" of 1923.
STATE LAWS ON AVIATION IN THE UNITED STATE$ __ __ __________________________________ _
First state aerial navigation law passed-Enumeration of State laws, 1917-1921.
I NTERNATIONAL AERIAL LAW IN Tnll: OF PEACE-----------------------------------------
Question of sovereignty in air--Theory acted upon in World War-International Air aviga­tion
Convention, 1919, the "Magna Carta" of peace-time laws-Conditions of passage over
foreign territory-Right of establishing prohibited zones-Importance of nationality of aircraft-
Five means of determining nationality-Jurisdiction over punishment for violation of regula­tions-
Privileges of exterritoriality accorded aircraft-Code for private aircraft-International
Air Navigation Convention's classifications of aircraft-Rules governing aerial navigation
over foreign territory-Certificates of airworthiness-License for wireless- Requirements
of all aircraft engaged in international navigation.
CosT0~1s _____________________________ ~--------------- --- --- ---------------------- - --- -
As applied to airdrornes-Regulations covering exporting and importing of merchandise--­Duty
on planes-Smuggling.
8
10
15
V. I wrERNA'rIONAL COMMISSION FOR Am NAVIGATION________________________________________ 16
Membership and Voting Power- 'even-fold dutie · of commission-Expenses of organiza­tion-
Adherence to provisions of Convention.
V I. MARITIME OR ADMIRALTY LAW __ ___ _________ --- __ ---- - ------------- ------ __ ------------- 17
What it governs-Origin of maritime law-Federal jurisdiction over aeronautical cases­Three
subdivisions of maritime law most important iu air navigation cases-Laws governing
cases of collisiou--'-Laws governing towage contracts-Laws governing salvage---Compensation
and r ights of salvors-Compensation of crew and passengers- Distinction between derelict and
other vessels- Elements that determine amount of award for salvage.
V II. I N TIME O~' WAR ___ - -- - - -- -- - - - _ _, _______ --- -- - -- - --- - - --- - - ------ --- --------------- ---
Primary rules established during World War- Distinctive markings of belligerent aircraf
Their personnel- ame rules apply as in land and naval warfare---Espionage and treason
defined- Application to airman.
V III. RIGHTS AND OBLIGATIONS OF BELLIGERENTS \VtWI RESPBC'l' TO ENEMY AfHCRAFT PROPERTY _ _ _
Old law ou right of confiscation- Doctrine of British and American courts-Alien Property
Custodian law- Old rule of international law still in force- Application to aircraft-Law regard-ing
merchantmen in enemy port-Righi of sequestration recognized for enemy aircraft-Code
for private aircraft during warfare---Ruling iu regard to aircraft on special missions- Regarding
capture of enemy officers and crew-Treatment of sick and wounded.
I X. RELATIONS OF NEUTRALS AND BELLIGERENTS _____ ______ ________________________________ _
Case of rights of neutrals under aerial conditions in World War-Neutral rights and duties in
maritime warfare--Shipping of munitions and supplies through neutral territory- Provisions of
maritime and land warfare regulate aircraft in war-Granting of air passage to belligerents by
neutrals-Blockade rules of land and sea in aerial warfare---Explanation of rules.
X. AERIAL BOMBARDMENT-- ---------------- --- ----- - ------------- --- - ------------------- -­Hague
Conference ruling-Aerial raids during World War and matter of reprisals-Human­ity
the real consideration-Conference on limitation of armament - Code drafted for aerial warfare.
(I)
21
23
25
27
II
Chapter Page
XI. MUNICIPAL LA w OF THE Am___________ _____ _ _______________ ___ _____________ __ ____ _____ 29
Question of who owns space above earth- Explanation of old Latin maxims on this subject-­English
cases of rights in air pace- True test of ownership- American Bar Association findings­Limitation
of owner's rights cited by Spaight--Findings of Professor Gleason in " Problems in
Aviation Law"-Recommendations of British aerial transport committee-Agreement reached
by writers on laws of aviation-Judicial opinion of Judge J . C. Michael the most recent.
XII. AVIATOR'S LIABILITY FOR DAMAGES _____________________________________________________ 36
Need for regulations fixing obligations of aviator- Connecticut law probable final fixed
law-British Aerial Transport committee recommendations-Importance of good will of pub­lic-
Matter of insurance-Compensation for occupancy of land- Responsibility in event of col­lision
in air-Proper forum to determine contr oversies.
XIII. FEDERAL OR STA-r'E L EGISLATION___ _ _________ _ _ _ _____ _ _________ _ _________________ _____ __ 38
Congressional jurisdiction desirable-Effect of a treaty- Why nited States should ratify
International Air Navigation convention-Justification of a Federal act-Ruling where both
interstate and intrastate deals are involved- Proposed bill known as civil aeronautics act of
1923-Beneficial r esults of Federally regulated aviation.
APPE IDIX I _ - - ------- - -- -- ------ ---- ---- - -- - -- - ----- - -- --- -- - -- - -- -- - - - - - - - - - -- ---- --- --- 41
Arn CLAUSES OF VERSAILLES PEACE T REA'l'Y-Limitations
on German armament and military personnel- Inter-allied commissions of
control- Reparation from Germany- Aerial navigation.
APPE DIX IL ___ _______________________________________________________________________ : _ 43
Co VENTIO FOR REG LATION OF Am NAVIGATION-General
principles- Nationality of aircraft-Certificates of airworthiness and competency­License
for wireless- Admission to aiT navigation above foreign territory- Rules to be observed
on departure, under way, and on landing- Prohibited transport-Defining tate aircraft-­Duties
of International Commission for Afr Navigation- Provisions for handling information,
maps, wireless, etc.- Special protocols between states- Disagreements between states in
interpreting convention- Action in case of war- I nclusion of British Dominions and lndia­Action
of states not in World War- Concerning denunciation and ratification of Convention­Marking
of aircraft-Conditions governing issuance of certificates of ainvorthiness-Log
books- Rules regarding lights and signals for aircraft, balloons, airshlps and flying machines­Rules
regarding right of way in air- Ballas Air traffic rules to be observed near airdrome -
Qualifications necessary for pi lots, navigators, and airship officer pilots- Medical requirements­Aeronautical
maps and ground markings- Handling of meteorological information- Rule and
forms for making out meteorological reports and forecasts-Customs regulations- Form of a ir
navigation manife t .
APPE DIX Ill __ ______ ___ ____ ------------ ____ -- - ----- -- ------------___________________ ___ _ . 67
RULES OF AERIAL WARFARE:
Classification of aircraft by marking- Freedom of passage of aircraft---Notification of exist­ence
of war- Rights of belligerents- Kind of aircraft tha may engage in hostilities-Principles
of maritime warfare applicable to aerial- Decision regarding use of certain projectiles- Regard­ing
fal e markings- Prohibition of firing at escaping airmen- Ruling on disseminating propa­ganda-
Code for bombardment--E pionage- Extent of military authority- Requisitioning of
aircraft-Firing on belligerent nonmilitary and neutral aircraft-Prisoners of war- Duties of
belligerent and neutral States toward each other- Disposal of personnel of captured aircraft-­Supplying
of arms or war material-Neutral government jurisdiction over belligerent air­craft-
Over belligerent aerial observation- Use of force by neutrals- Liability of private air­craft
to visit, sear ch, and capture- Views of different countries on right of visit and search of
merchant vessels by belligerent aircraft-Ordering of aircraft to alight for visit and search­Right
of visit applied to neutral public nonmilitary aircraft-Liability of enemy private aircraft
to capture-Grounds for capture of neutral private aircraft---Facts that papers of private
aircraft must establish-Dut ies of p rize cour Liability to condemnation of different types
of aircraft-Grounds for de troying private enemy and neutral aircraft by belligerent officer­Safeguards
insuring protection- Disposal of contraband- What term "military " includes­Laws
governing aircraft personnel engaged in hostilities- Extent of territory under each power's
jurisdiction- Marginal territorial air belt-Compensation and penalties for violation of rules.
INTERNATIONAL AERIAL REGULATIONS
CHAPTER I
HISTORY OF AVIATION LAWS
'L'he science or art of flying and aerodynamics gen­erally,
as well as the mnnufacture of aircraft, is still
in its infancy in spite of the stupendous developments
that have recently tf1ken place; but the industry has
already assumed a posi t ion of vast importance in
world affairs. F rom the legal point of view many
problems are involved and as yet the complete code
of aerial laws has to be written. The need of legis­lation
and the definition of the rights, obligations, and
duties affecting aeronautics i recognized everywhere.
" More and more the thinking men who are taking
an enlightened interest in nerial na>igation are con-
1·in ced that the one thing most needed to encourage
and acl,7ance the cleYelopment of the airplane industry,
as well as aviation i tself in the United States, is a
wi. ·e system of jurisprudence applicable to aeronautics
aucl aerography."'
The following Associated Press dispatch appearing
in the New York \Vorld under elate of September 21,
1925, concretely and specifically illustrates the abso­lute
need of a "l'"ise and just system of in ternational
Jaw or r egulation affecting aYiation:
" That Germany has failed to observe the ele­mentary
laws of humanity in detaining the military
aviator, Dieudonne Coste, as a prisoner because he
flew over German territory. is the opinion expressed
by officials of the French air service as well as the
whole French people.
·• Coste was injured September 13, and his com­panion,
Rober ty Thierry, killed, when the plane in
which they were attempting to fly to Bagdacl crashed
in a fog near Freibur g. in the Black Forest.
"It is declared that if Germany theoretically had
the right to arrest Coste she abused the right and it
is hinted 'she will realize the clumsiness of her
gesturei rnry soo n.' Germans contend documents
fot1.nd in !he airplane proYe that Thierry and Cof:!te
deliberately plan ned to fly over Germany.
"In any case the incid ent, which is considered
gram here. rai ses a difficult problem affecting all the
entente powers. The Ver sailles treaty gave the Allies
the right to fly over Germany for a cer tain period,
after which it was stipulated definite arrangements
should be negotiated. The period e:1.."J)irecl, h owever,
1 G. W. Harris in Literary Digest, Dec. 4, 1920.
(1 )
without a.ny agreement being reached and the Ger­mans
decided to forbid their airways to all allied
machines differing from the type imposed upon Ger­many
by the Allies in the Ver a illes treaty. As a
consequence the important French air line connecting
Paris with the Balkans, Au. tria, and Hungary recent­ly
llacl to modify its itinerary and leave the easier
plain r outes for the mountainous r oute of Switzer­land.
" The French fo r eign office is dealing with the
Coste incident and hopes to obtain the aviator's re­lease
in a few clays. It also doubts whether the
Germans will impose s uch a heavy fine as was an­nounced.''
Law stands for order and system, and without it
there can be no true growth and development along
permanent and just lines. Absolute right is an in­finite
quality, and the term, therefore, when used by
finite man must be taken relatively. The true func­tion
of law is the establi hment of right as far as
poss ible, within the limitations of man, by the per­petua
tion of justice. Justice in the final analysis is
but the insuring of the largest possible enjoyment of
liberty by definitely marking out that a rea of human
conduct within which one can think :md act without
in\ading a like freedom of another; or, as Herbert
Spencer has phrased it, justice is " the liberty of each
limited only by the like liberty of all." It can
readily be seen, th en, that without an understanding
of a system of jurisprudence governing aviation-in­ternational,
national, and local-a fo. tering of its
growth and development would be haphazard and
unin telligent, not to say totally impracticable.
There is no definite agreement among jmists and
authorities as to a definition of law. Cicero, with
other Roman writers, r egarded what was termed
"the law of nature" a· the foundation of all law
aud gave as his unders tanding " lex est r ecta rati«'
irnpernndi atque prohibencli," and Blackstone, fol­lowiug
the same line of thought, said Jaw is "a rule
of cil·il conduct prescr ibed by the supreme power in
a state, commanding what is right a.nd prohibiting
what is wrong.'' However, from a practical. as well
as a philosophical point of Yiew, both of these defini­tions
fall short of perfection, for there is no power
to identify positively and in a universal way wnat is
"right reason " on the one hand, nor on the other
are we told where we are to find the "right" or
the •·wrong" which is enjoined or prohibited, as the
case may be, except in the injunction or prohibitioll
itself. As to international law, ll'.lr. Charles E.
Hughes, a former Secretary of State, and likewise
former president of the American Bar Association,
in an address before the Nineteenth Annual Meeting
of the American Society of International Law, said :
2
"There has been much futile discussion of the
question whether international law is properly law at
all-a discussion which begins and ends with the defi­nition
of law. It is clear that the obligations of inter­national
law are acc·epted, not imposed by external
will. It consists of those principles and rules which
civilized states have agreed shall be binding upon
them in their dealings with each other. Instead of
this sort of law, the accepted, not imposed, principle
or rule being outside of the proper conception of law,
it is rather the normal and most permanent. In
customary law it r eflects the common or predominant
judgment of the social need or convenience. E>en
legislation is successful in proportion to the extent
that it proceeds from the general appreciation of
social requirements. The notion of law as imposed
and maintained by force may have its advantage in
dealing with a small minority of infri11gers, lint iu
the long run this notion derogates from its authority
and counts for much of the national revolt against
legalistic conceptions. These are thought to be de­vices
to bind life with unnecessary fetters. Obedi­ence
to municipal law with the intelligent patriot
finds its motive in not yielding to force but in the
recognition of tbe law as the expression of demo­cratic
will through representative institutions. Tak­ing
the long view, it may not be regarded as a defect
or misfortune that we escape the notion of imposi­tions
of force in the field of international law. It
makes for peace because it is accepted and is farthe.·t
r E-moverl from arbitrariness. lts graclual extension
marks a gain that is not merely temporary or an
illusory but genuine progress, and hence the effort
to promote the reign of law, as accepted, not imposed,
may be after all the most important contribution to
permanent peace."
In its final analysis, and when the true function
of l~w is understood, it might be said that law is but
the accepted custom of any people in their inter­course
with others or with one another, or in other
words, the common opinion established by long pre­Yailing
custom as to what is right and just. For the
purpo ·e of these lectures then, we will assume as a
description or definition, that law is a rnle, or body
of rul es, for the regulation of human conduct, and
that both individuals and nations are actuated by the
thought that international, as well as municipal law,
is binding by reason of the higher force of acceptance
than that of enforced imposition. But one should
not fall into the error of r egarding law as a static
thing that remains immutable and unchangeable.
On tbe contrary, it is dynamic and grows and develops
as man progresses and ad>ances in civilization. ·with
respect to the granting of po\vers to the Congre s of
the United States in the Con titution, Mr. Justice
'Ynite, in delivering the opinion of the Supreme Court
of the United States, ·aid :
.. The powers thus granted are not confined to the
instrumentalities of commerce or the postal service
known or in use when the Constitution was adopted,
but they keep pace with the progress of the country
and adapt themselYe to the new deYelopments of
the times and circumstances. They extend from
the horse with its rider to the stage coach , from the
sailing Yes><el to the steamboat. from the coach and
steamboat to the railroad, and from the railroad to
thC' telegraph, as these new agencies are succe ·sfully
brought into u e to meet the demands of increasing
population and wealth." 2
What is here said of the Constitution of the
United States applies \Tith equal force to the whole
system of law and juri prudence generally. Aviation
is new and to many of the maxims and institutions
of the Jaw an unknown and undreamed of thing. As
a c:onsequence, the law of the air is just now in the
making. so to peak, and no long established system
or rult' of conduct ha preYailed sufficiently to defi­nitely
settle and fix the bounds of the rule or body
of rules for the regulation of this phase of human
conduct. For sources of authority as to what the
law is, or is to be, governing international aerial
navigation, we must appeal to recognized legal
,niter ; to the provisions of treaties disclosing the
consensus o( opinion; to legislative enactments, laws,
and decree.· of individual States regulating interna­tional
conduct : to the decisions of international tribu­nals
such as boards of arbitration; to the judgments
of prize courts and of ordinary municipal courts pur­porting
to be declaratory of the law of nations; and
to su<'h analogie. that exist between it and other
known and long-r ecognized means of tra >el and trans­portation.
We will begin wilh the history. growth, and cle­Yelopment
of aerial laws without going into nnalyt­ical
study of those laws as such. The first instance
of flying that we have any record of, if we exclude the
story of Elijah mounting to heaven in a fiery chariot
as recorded in our Bible, is the flight of the mythical
Dmdalus and his son Icarus in the ancient days
of Greece. Dmdalus had lost the favor of King Minos
and was imprisoned by him. He was r eleased by
Pasiphae, but could not escape from Crete as Minos
had seized all the ships on the island. Dmdalus ac­cordingly
deYised wings for himself and his son,
Icarus. which were fastened to the body with wax.
With this ingenuous contrivance they fled through the
air. Icarus, however, failing to obey his father's in­junctions,
on his first attempt, flew too close to the
sun which melted the wax and be came to grief and
•Pensacola. Telegraph Co. v. Western Union Telegraph
Co., as cited in Western Union Telegraph Co. v . State of
Texas, 105 U. S. 460.
was drowned in the sea.3 This is an interesting flight
of the imagination, if not of fact, but shows even the
early aspiration of man toward conquering the air
and using it as a means of transportation. However,
it could scarcely be pronounced a practical success
and certainly produced no effect upon the methods of
transportation put into general use at that time.
Mr . .A.rthur K. Kuhn in bis article on "The begin­nings
of aerial law,'" American Journal of Inter1m­tional
Law, Volume IV, pages 107, 112, 118, 129
(1910), says :
"Barring the fancied flight of I carus (which indeed
left no impression upon the jus gentium of the an­cients),
taking the air did not appear as a medium
of travel until three centuries ago. From that time
to the present the means were too primitive and
the accomplishments so insignificant that no ques­tions
arose except such as were quite independent of
national rights in the air space."
While it is not our purpose to trace the entire· his­tory
of aeronautics as a science or art, it is interest­ing
to note that the legends of almost all peoples in
the world contain stories of flights in the air either
by man or deity. However, when the ability to fly
is not given as an attribute of divinity and the efforts
of man in .that direction are told, the achievements
as a rule are ascribed to some evil spirit. Authentic
accounts of the beginning of anything of practical
flights start with the invention of the balloon by the
Frenchmen, Montgolfer brothers (Stephen and
.Joseph), during the year 1783, closely followecl by the
inventions of another Frenchman in the same year,
Doctor Charles, who for the first time used hydrogen
gas as a lifting force for his balloon.
The beginning of man's conquest of the air is
closely r elated to the study of war, for. no matter
how regrettable, it is a fact that this science, at its
inception, had its princinal use in the wounding or
killing of men and the destruction of property, and
its greatec·t deYelopment took place as a result of
the use of aircraft in the World War of 1914-1918.
Thus the balloon of the Montgolfer brothers was
first thout;ht of as a means of assistance in war­fare.'
The first authentic instance of the use of a
balloon in warfare, or for any other purpose than
experimentation or sport, is that of the French in
the battle of Fleurus in 1794, when the French
Republican force· under Marshal J ourdan defeated
the Austrians and their allies under the Prince of
Saxe-Coberg. thereby forcing the evacuation of li'lan­ders
and saYing France from the menace of inYa­sion
.• This use of aircraft was solely for observa­tion
and reconnaissance purposes, but the informa­tion
obtained thereby was unquestionably of valuable
assistance in bringing about the French victory.•
3 Ovids "Flight of Dredalus,'' VIII, 183-235.
•Aeroplanes and Dirigible. of War, by F. A. Talbot,
p. 12.
•Airplane in P eace and War. by R. P. Herne, p. 59.
'Aviation in Peace aQd War, by Sir F. H. Sykes, p. 19.
About this time a balloon school was also founded
at Meudon, near Paris, and 50 young military stu­dents
were admitted for training.7 A balloon division
formed a part of the French armies at the beginning
of tile N:ipoleonic war.', one such accompanying the
army to Egypt. Not much success resulted from these
efforts, however, and "apoleon later suppressed the
balloon divisions of the French armies. It is also
known that in 1812 the Rus ians at l\Ioscow sent up
a sort of balloon loaded with explosives.•
ln this country, during the Civil War of 1860-1865,
the Federal armies made use of aircraft and had full
et1uipment for six balloons with gas-generating plants,
while the Confederate forces were known to have
employed one balloonist.0 However, it was not until
the Franco-Prussian ·war of 1870-71 that the use
of balloons gave rise to a direct application of law.
As many as 66 balloons were sent up from Paris
during the siege of that city. Five of these were
captured by the Germans, and those on board were
treated as spies and actually tried and condemned
to death. Ho1vever , none were ever executed, though
they were treated with great severity.10 An English­man
named Worth was captured by the Germans
after leaving Paris in a balloon in October, 1870, and
brought before a German court-martial and tried as
a spy, but was acquitted.u The position of Bismarck
on this occasion wa that the prisoner had cr ossed
the German outposts in a manner which was beyond
the control of the outpost, possibly with a view to
make use of the information thus gained to the
prejudice of Prussia, which, according to his point
of view, made out the offense of being a spy.12
In 1874, Emperor Alexander II of Russia endeav­ored
to bring all the principal nations of the world
into the adoption of a common code of laws of war­fare
for ciYilized states. As a result of his en­dea
1·01·s a conference of nation was held in Brussels.
A >:eries of articles were adopted. but the work of
this conference was neyer ratified by the high con­tracting
parties. and as a consequence can only be
looked to as an unofficial document.13 One of the
principles advanced was that these who reconnoiter
from balloons are not guilty of espionage and could
not be regarded as spies. It was the German repre­sentative,
Gen. Von Voigt Rhetz. who proposed this
re olution, so it may be marked as a definite abandon­ment
by Germany of tl1e claim of Bismarck in this
respect.14
7 History and Practice of Aeronautics, by J . Wise, pp.
60- 61.
•Aeril\I Warfare ancl International Law, by A. De La­praclelle
in Scribner's Magazine, July, 1915, p. 19.
0 Woodhouse Textbook of Aerial Laws, p. 132.
10 Pitt Cobbett's Leading Cases in International Law,
Volume II, p. 201.
11 Bluntschli, 632.
12 Uall International Law, p. 540.
13 Principles of International Law-Lawrence 392-British
Parliamentary Papers No. 1 (1 75), pp. 320, 324.
1
• Woodhouse Textbook of .lerial Laws, 132 Lawrence,
Principles of International Law, 519.
4
The Brussels conference was followed by the tions between differ ent pa rts of an army or terri-
" Manual of Laws of War on Land " adopted at Ox­ford
, England, in 1 0 by the Institute of Interna­tional
Law. This manual only affected aviation or
aeronautics d irectly, by r eaffirmin 00 the principles set
forth in tile Brussel confer ence, to wit, tha t bal­loonis
ts could not be classed as spies or be consid­er
ed guilty of espionage."
Up to the nineteenth centw·y what we know as the
airplane was s till only a dream and aircraft was con­fined
almost exclusively to balloons ancl the principal
use of th is form of aircr af t in warfare was small an cl
limited to means of ob ervation and r econnaissance.
However , " mention is also made of occasional a t­tempts
to use balloons in order to direct explosiYes
toward the line o:f tile enemy. An authentic instance
is to be found in the a ttempt of the Austrians while
besieging Venice in 1849 to direct a large number of
small balloons charged with explosiYe against that
city." It was this use of aircraft particularly that
attracted jurists and gave rise to its con ·ideration
from tile jurisdictional point of view a t the first
peace confe rence at The Hague in 1899. This con­fer
ence had its origin in a procla mation of Emper or
' icholas II of Ru ia, who, actuated by humane
impulses, i ssued the same in 1898, inviting tile atten­tion
of tile nations of tile world to tile havoc of
warfar e ancl t ile economical waste of prepara tion for
i t. He therefore r equested a conference to consider
the same for the purpose of agreement upon "the
most effectual means for securing to all people the
benefits of a r eal ancl durable peace, ancl above all
for putting an encl to the progressive development of
the present armament." 11 As affecting aircraft, the
result of the l!~irs t Hague P eace Conference was the
adoption of the following declaration :
" The contracting powers agree for a period of
five years to forbid tile throwing of projectiles ancl
exploSiYes from balloons, or by other new methods of
a simila r nature."
It will be noted fir st that this inhibition was to
e:i.-pire by it::; own limitation after a period of five
years. Both The Hague Peace Confe rences of 1 9!l
and 1907 cont·ained a r t icles that "a per son can only
be consider ed a spy when acting claucle tinely, or on
fal se pretenses, he obtains or encleayors to obtain
informa tion in the zone of operations of a belligerent
11·ith intention of communicating it to the hostile
bocl y," and another that gives a general uega ti>e
defin ition of the clas of per sons subject to the
charge of espionage, decla ring tliat to t ile class not
subject to such a charge " belong likewise Jler sons
sent in ball oons for tile purpose of tran smitting dis­patches
and, generally, for maintaining communica-
1
• Tableau Gi!nt'!ral de L'Institn t de d rnit In ternat ionak.
pp. 173-190.
iu The In ternation a l Regul ation of Aerial a vlgation , by
.\rtb ur H. Kuhn .
17 Rescript of the Cza r , Aug. 24, 1898.
tory." 1
•
p to this time the prin cipal vse of aircraft in
warfare was merely as a means of observation or
recounais;::ance. However, the experiments of Lilien ­thal,
Chanute, l\Iou tgomery, Ader, Langley, and the
\Vright hrothers were progr essing so rapidly that it
was apparent tha t air navigation for all purposes was
to become thoroughly practicable, and jurists and
publicist over the world were beginning to give
thought to this new means of transportat ion as
affecting interna tional rela tions or as affected by
international laws. In 1900 a t au annual convention
of the Institute of International Law held at r'euf­chil
tel, l\I. P anl F auchille. edi tor of the ReYue Gene­r
ale de clroit Interna tional Publique, and a lawyer
,·e rsed in international law, proposed as a subject
fo r di cussion, •· La Regime J uridique des Aerostats,"
and a t the next session of the institute be presented
the draft of a comparatiYely complete international
code go\'erning aerial navigation that contained some
~ O rules to go,-ern fli gh t and showed a car eful study
of the subj ect."' As said by Mr. Arthur K. Kuhn " to
l!~a u chille is properly clue the honor of being the
pioneer in this ·field of legal investigation. The
subject lrns since r eceived the more mature con­sider
ation which might be expected from longer
familiarity wi.tb its practical pr oblems. Such well­known
j urists a Gar eis. Greem1·ald, Hilty, Meili,
)leurer, ancl Nys ha>e deYoted special a ttention to
it and haYe dernlopecl the beginnings of a new fi eld
of jurisprudence."!?()
Justinian, in his institutes t ell us that " tile air
like tile high seas is by natural right common to all.'"
M. F aucbille in bi. project followed this analogy, and
his code wa ba eel on tile main proposition that " air
naYigation is free. NeYer theless the underlying
States pos ·es · tile right necessary for presenation­that
is to say, for their own security and the security
of persons and nr operty of their inhabitauts . ., This
code would haYe r equired all airships to have a na­tionality
and to bear the fla g- of their na tions and a
number correspond ing to that of their offi cia l regi stry
ancl con tains other general p roYisions governing- aerial
tra ffic.21 This whole subj ect, ho11·ernr, was still treated
more as an academic matter than as a positiYe decla­r
a tion of law and for ·ome time never became any­t
hing mor e than tile project of learne<l jurists. At
tile 1906 session of t he Institule of Jnteruational
Law, held a t Ghent, Professor We tlake offered the
fo llowing ar t icle:
"The State has a right of ,;oyereignty OYer the
aerial space a bo,-e its soil sa,·ing a right of inofl'ensin>
18A.t"ticlc 2~. Regulations Annexed to t he Confe rence Con­cern
ing Laws and Customs of Wa r on Land.
19Annua i re 1902, pp. 25- 86.
"' 'J'he Begin ni ngs of Aerial Law, Kuhn, Volume JY,
.\ mNican Journal o( Tnt~rnati o n a J Law, p. 111.
21Annuarie 1903, p. 19.
pas age for balloons and other aerial machines and
for communication by wireless telegraphy."
It is well to note that this article failed of pas­sage
and indeed only received three fa.-orable ' 'otes.22
But at this ession of the institute a code for inter­national
aerial regulation \YaS proposed which again
had as its fundamentnl purpose lhe proposition that
the air is free and that full so1·ereignty over the a i.r
space aboYe its soil did not exist in the subjacent
States."'
In the following year, 1907, the Second Hague Con­ference
proposed to renew the prol"isions of its decla­ration
of 1 99 prohibiting ·'the discharge of projec­tiles
from balloons and other new methods of a simila r
nature.'" Russia proposed to limit foreYer attacks by
these means upon uudef'euded places. ltaly proposecl
to add to the Rus ·ian proposition that no proj ectiles
or explosh es should be launched .l'rorn balloons not
dirigible and manned hy a milit::try force, and fur­thermore
that the same restriC'tion that rested upon
land and na 1·a1 war fa re should apply to aerial war­fare
where.-er compatible with the new method of
combat."'
However, the declaration as adopted read:
"The contracting powers agree to prohibit for a
peri od extending to the close of the third convention,
the discharge of projectiles and explo i\,es from bal­loons
or by other new methods of a similar nature."
This " declaration " was only signed by 27 States,
and the signatures did not include four of the great
maritime power s, viz, Germany, Italy, Russia, and
Japan; nor wa it ratified by the nited States.
This convention also contained an abortive provision
to the effect that it. pr ohibitions and r egulations
should apply only to warfare between the contract­ing
parties, and since nonsignatory powers were in­volved
in the World War of 1914-1918, it can scar cely
be maintained that tbi declaration has been accepted
as an integral part of international law.
The French baYe been most in ter ested in thi;; fmb­ject
and it was at their instance that an " interna­tional
conference upon aeria l navigation" was held
in Paris in l!llO. M:. Paul Jraucbille submitted a
redraft oE his original code at th if: confere nce' and
a M:. von Bar proposed that "airships were under
the jurisdiction of their own State o long- as they
r emained in the air, though liable to the t eriitori a l
law for any act that migh t take effect outside the
airship.""
Likewise, in 1910, the First International Juridical
onfereuce for the Regulation of Aerial Navil!,'ation
was h eld at Verona, but nothing other than an in­dorsement
of much of the work that bad been clone
at Paris by the International Aerial Conference was
accomplished. A proposition wa submitted by Italy
"' 21 Aunuar;e, 297- 99.
23 Supp. 7 American .l ou rnal ln ternational Law, 147.
"Aerial Navigation in its Relation to In ternational Law,
Kuhn, p. 12.
,. Aerial Jurisdiction, Wilson, p. 173.
5
in December, 1910, in a joint note to the powers of
the world to prohibit in time of war all firing from
and arming of aerial ships and limiting their use to
observation and reconnaissance purposes. No action
was ver taken by the powers on this proposal.'0
Another . ession of the Institute of International
Law was held at Madrid in 1911, when M. Fauchille's
code was again presented. Much discu sion took
place at th is gathering over the question of aerial
warfare and the following resolution was adopted:
"Aeria l war is permitted, but ouly on the proviso
that it does not enta il greater danger to the persons
or property of the peaceful population than land or
maritime war."'
The que8tion of soYen'ignty of the air was brought
up a lso, but the theory, at least qualifi ed, of freedom
of the air was adhered to, as shown by the following
resolution :
"International aerial circulation i free, s ubject to
the right of the underlying States to take certain
steps which should be fixed to safeguard their own
security and that of the persons and property of their
inbabitan ts. "21
The international juridic committee of aviation in
1911 phrased the same thought in the following lan­g
uage:
"Aerial circulation is free, except for the right of
subjacent States to take cer tain mea ures to be de­termined
with a view of their security and that of
persons and goods of their inhabitants.",.
Beginning with the year 1910 and up to the break­ing
out of the World \Var in 1914, we find many laws
passed by the legislatiYe bodies of various nations,
such as the act of the British Parliament of 1911
prohibiting aviators from flying low over the proces­sion
or the attendant public d uriug the coronation of
King George Y and the statutes of the second and
third George V, ch. 22. These last-mentioned acts
undertook to establish prohibited areas and laid down
rules governing the entry of foreign aircraft into Eng­land,
and some arrests under them were made for
violations of the regulations by aviators flying from
France and Germany int·o England without permis­;;
ion."" B~· presidential clecree of November 21, 1911,
the circulation in France of foreign military airships
was proh ibited.3° Ru;:sia adopted an aerial naviga­tion
act in Jul y. 191 2. wbich prohibited foreign air­craft
from passing t he region located between the 59°
11' and 60° 10' latitude nor th and. between the 23d
and 25th degrees longitude east of Greenwich. Austria
and Germany soon followed hy adopting national laws
likewise creating forbidden zones." There is thus seen
a gradual abandonment of the general principle of the
26 .\ crial Jurisdiction, Wilson, p. 177.
27 Aircra.ft in War. Spaigbt, p. 56.
"" 18 Law Notes, 5.
29 Problems iu Avialion Law, hy George Gl~ason Bogert,
Cornel l Lnw Qna rterly , Vol. VI, p . 280. Woodhouse Text
Book of .A.Prial Laws, 136.
30 Revue Juridique de la Locomotion Ael"ienne, 1911, p. 305.
31 Woodhouse Text Book of Aerial Laws, pp. 136 and 137.
6
freedom of the air and its analogy to the high seas, that neither he nor any membea: of his crew has com­nnd
in 1913 the committee on aeronautics of the In- mitted any act affecting the national security of the
ternational Law Association made the following French State, such as taking notes or of photographs
report: or the dispatch of wireless me ·sages. The aircraft
"It appears to the committee impossible to con- will then be authorized to return to Germany by
tend that according to existing international law the
air space is free; nor do they think that states would
be willing to accept or to act on that view of the law.
Rut they are of the opinion that, subject to such fiflfe­guards
as subjacent state may think it right to im­pose,
aerial navigation should be permitted as a mat­ter
of comity.
" There is no reason to anticipate that states will
·interfere with the passage of foreign airships through
the air above their territories in an unreasonable
manner any more than they have interferecl with
the passage of foreign veh icles through their ter­ritories
or of foreign vessels through their territorial
\Ya ters. Indeed, any action of tbis character must be
pre,·ented by considerntion of reciprocal interest.
" The committee therefore submit the following
resolutions:
" ' 1. It is tbe right of every state to enact such
prohibitions, restrictions, and regulations as it may
th in k pr oper in rrgard to the passage of aircraft
through the air space above its territorief' and ter­ritorial
waters.
"' 2. Subject to this right of subjaceot states, li.b­erty
of passage of aircraft ought to be accorded freely
to the aircraft of every nation.' "
The first international convention or agreement in
the nature of a treaty affecting aircraft was the agree­ment
or convention entered into between Germany
and France in 1913 governing the admission of Ger­man
a ircraft into France and French aircraft into
Germany, which was as follows:
" (For the sake of clearne. s the case of German air­craft
entering France is alone mentioned in the fol­lo\\-
ing precis, but the corresponding case of French
aircraft entering Germany is subject to identical
rules.) German military aircraft, or other German
aircraft carrying officers or soldiers in uniform, may
only circulate over French territory or land there
upon the invitation of .the French Government.
"In cases of necessity, however, a German air­craft
may be allowed entry; but to prevent cases of
thi kind arising, the Ger~an Government will give
the necessary instructions to its airmen.
"In such cases the aircraft must make the signal of
distress and land as soon as possible. The pilot must
then notify the nearest F rench authority, stating his
name and domicile, and that authority will take
steps for the protection of the aircraft and its con­tents.
The local authority will notify the nearest
military authority.
"The military authority will inquire into the
alleged case of necessity, to determine whethea: the
entry was justifiec1 or not.
" If the justification is established by this inquiry
the military authority will obtain from the German
officer in cbnrge of the aircraft his word of honor,
suc:h route as the military authoa:ities shall direct.
" When an immecliate return to Germany is not
practicable, the a ircraft, while in France, shall not
lw i:;nbject to any measures save such as are neces­sary
for its safety, and that of its crew and contents,
and for the publi.c health.
"If it is not established at the inquiry a:eferred
to above, that the entry was justified by necessity,
the judicial authorities will be notified and the
French Government will be advised.
"The French and German Governments will keep
one another advised of the nature of the distinguish­iu.(:
marks of their respective military aircraft.
".As a:egards the entry into France of German air­craft
not belonging to the military service and not
carrying officers in uniform, this is permitted. except
in the prohibitecl zones (fortresse , defenses) subject
to the following conditions:
'· '1. The aircraft must have a license to navigate
from rhe proper Geirman authority, and must carry
the distinctive marks necessary for its identification.
•· '2. The pilot must have a proficiency certificate
from the proper authority.
" '3. He must also bave papers certifying his na­tionality
and his station militaire; so must any mem­bers
of the arew.
" '4. He must haYe a passport for the journey from
the diplomatic or consular representatives of France
in Germany.'
''.Aircraft thus admitted must submit to all the re­quirements
of international law, of the customs a:egu­lutions
and of the aeronautical regulations in force in
France.
"Afrcraft not f ulfilling the above conditions may be
admitted in cases of necessity, but such aircraft
must !and as soon as possible and notify the nearest
civil authority.
" Whenever a German aircraft lands in Fa:ance the
local authorities will take all steps necessary to insure
the protection of the aircraft and its crew.
"The two Governments will advise one another of
their respective regulations as to aerial circulation.
" The present agreement is based upon reciprocity
of treatment. It will cease to be in force when deter­mi.
ned by either Government."
'l'he importance of such international agre<'ments
and understanding, and the need for a complete in­ternational
aerial code can be well appreciated when
it is remembered that Germany stated as one of its
official r easons for declaring war against France in
1914 that hostile acts had been committed by French
aviators over German territory.12
"" See letter of the German Ambassador to the French
:Minister of Foreign Affairs, dated Aug. 3, 1914.
Municipal law has an axiom that " inter arma
silent lege::;,"· which applies to our study of interna­tional
law, for during the late World 'Var all at­tempts
for formulating rules or regulations as to
aerial na>igation were practically suspended. But
with the end of that conflict we begin to see a forma­tion
of complete rules, or body of rules, go,·erning
bum an conduct as affected by this new science. As
said by Mr. Woodhouse in his Textbook of Aerial
Laws, "following the signing of the armistice the
allied and associated powers were brought to a quick
agreement on the international aerial regulations to
be adopted by the necessity of including these regu­lations
in the Peace Treaty so as to define the limits
of future German aerial activities and the privileges
which allied aviators are to enjoy when flying over
German territory." All of the "air " provisions of
the peace treaty of Versailles are given in an appen­dix
h ereto.
'l'he Peace Conference of 1919 at the concl usion of
the 'Vorld War created an aeronautic commission
which was directed to draft a convention for the
regulation of air navigation, to which all the 27 allied
and associated powers were to become signatories.
The representatives of the United States Government
on this commission were Maj. Gen. Mason M. Patrick,
of the Army, and Rear Admiral Harry S. Knapp, of
the Navy. The completed draft of aerial rules and
regulations fonnulated by this commission was rati­fied
by 16 of the allied and associated powers on
October 13, 1919, and has become known as the In­ternational
Air Navigation .Convention. The follow­ing
nations have adopted and ratified this code:
Belgium, Bolivia, Brazil, British Empire (including
Canada, Australia. Union of South Africa, New
Zealand. and India). China, Cuba. Ecuador, France,
Greece. Guatemala, Hedjaz, Honduras, Haiti, Italy,
Japan, Liberia, Panama, Poland, Portugal, Peru,
Netherlands, Rumania, Serb-Crout-SolYeni State,
Siam, Czechoslovakia, and Uraguay.
Article 38, chapter 9, of this International .A.ir Na vi­gation
ConYentiou reads as follows:
7
" In c:u;e of \Yar. the proVJs10ns of the present con­vention
do not affect the freedom of action of the
contracting States either as belligerants or as neu­trals."
It follow · then that no matter how adequate or
complete this convention may be it can only be re­ferred
to as a peace-time measure or code. Detail
attention will be given to its provisions later on.
There have been no fundamental changes in the
provisions of the International .A.ir Navigation Con­vention
of 1919, its principles having been agreed to
by practically all civilized nations of the world, with
the exception of the United States. It may be con­ceded
that the regulations of air traffic specified in the
convention are the basis and foundation for all the
peace-time rules of international laws affecting this
means of transportation and travel. It establishes
an international body known as the International
Commission for Air Navigation as a part of the
organization of the League of ations, and under
the provisions of article 34, chapter 8, this Inter­national
Commission for .A.ir Navigation is invested in
a general way with the duty of enforcing the pro­visions
of the convention, and it bas been argued
that the r atification of this convention by the United
States would be tantamount to a legislative acknowl­edgment
of the League of Nations, and, as a conse­
·quence, the present policy of this country being that
of nonparticipation in the League of Nations, the
International Air Navigation Convention bas not been
ratified by the nited States. No matter what the
reasons may be the fact remains and, indeed, in
addition to not ratifying the International Air Con­yention,
there bas been no Federal or congressional
action looking toward the establishment of a
national system of aerial laws in this country,
though there ha,-e been many bills introduced in
Congres:o proposing to do so, notably that of Senator
Wadsworth, known a" the civil aeronautics act of
1923. This proposed bill follows closely the regula­tions
prescribed by the International Air Navigation
Convention, but. o far lla. failed of passage (October.
1925).
CHAPTER II
STATE LAWS ON AVIATION IN THE UNITED ST ATES
The field of national legislation having been neg­lected,
several of the States of the Union and some
municipali ties ha>e undertaken to prescribe local
r egulations in spite of the essentially national char­acteristic
of aeria l navigation. Connecticut lead in
this matter by a s early as 1911, passing a law to
regulate the operation of a ircraft. This law is now
General Statutes, 191 , chapter 176. chapters 3107-
3117 of the laws of the State of Gonnecticut. Below
is given a brief enumeration of the various State
laws that ha>e been pa sed since 1917:
C.ALIFOllNIA
1919 (300 ). Prohibits the use of airplanes in hunting.
1921 (783). An act concerning the registration , num­bering
and use of aircraft and the licensing of op­erators
th er eof. In effect August 2, 1921.
CONNECTICUT
1918 (176). Provide for the r eg istra tion and regu­la
tion of aircraft. In effect June 8, 1921. (An
amendment of the original act of 1911.)
1921 (207). An a ct concerning a ircraft (to register
and issue licenses, to operate ) . Approved May 20,
1921.
I NDIANA '
1921 (189). Provides penalty for the unlawful taking
of aircraft. In force May 31, 1921.
1920 ( 48). Aviation field s. Provides for acquisition,
equipment, management, operat ion thereof.
KANSAS
1921 (264) . An act creating a state aircraft board ,
r egul ati11g the 11a>igation of the air by aircraft:
M IN "ESOTA
1921 ( 433). .An act to regulate the traffic of aircraft
O>er cities of the first class and prescribing penal­ties
for the violation ther eof. Approved April 23.
1921.
MO '!.'ANA
1921. ( 23 ) . Prohibits use of a irplanes in bun.ting.
NEBRASKA
1921 (165) . An act to authorize cities of the metro­politan
class, cities of first cla ·s or ci ties of second
cla.·s to acquire lands for the p urpose of establish­.
ing an aviation field and to improve the same and
to provicle the funds ther efor by the sale of bond"
of such city. Approved Ma r ch 15, 1921.
' EW JEllSEY
1921 (124). An act r egula ting the operation of motor­driven
aeria l machines. Approved March 31, 1921.
NEW YOUK
19Hl (391- 93). Insurance law now permits cas­ua
lty, marine, and fire ill. ·uraDce on " airplanes,
seaplanes, dirigibles, or other aircraft."
1920 (715) . An act to amend the gr ea ter New York
char ter, r ela tive to ceding, gr anting and con>eyiug
to the uited Sta tes lands and lands u nder water,
acquired by or owned by the city of New York,
neces:ary f or th e e ·tablishmen t of air stations in
connectioD with or defense of New York Harbor
and the Atlantic coast. l\1ay 11, 1920.
NORTH CAUOLINA
authorizi11g cities to provide mu11icipal aviation
fields. • Approved March 1, 1921. 1919 ( 3 ) . Hunting wild fowls with airplanes un-
1921 (16). Prohibit the use of airplanes in huntiug. lawful.
MAS ACH U SETTS
1919 (306 ). An act to regulate the use of aircraft.
In effect 1913.
MICHIGAN
1919 (82). An a ct to prohibit the molesting of game
and insecti>orous birds by opera ti on of aircra f t.
April 19, 1919.
(8)
OREGON
1921 (113) . An act to provi le for appropria tion of
property for air field in citie: and towns. F ebruary
19, 1921.
1921 ( 45). An a ct to provide for the organization
of an Oregon State Board of Aeronautics, regulating
flyin "' ancl registering a via tor . Approved February
12, 1921.
TEXAS
1919 (9). Authorizing private corporations for the
purpose of construction, manufacture, etc., of air­planes.
A.pproved February 17, 1919.
WASHINGTON
1919 ( 48). An act relating to facilities for aerial
tran portation, authorizing cities and counties to
acquire, maintair. and operate lands and property
therefor, and declaring the same to be for counti·y
ancl city purpose and public use. Approved Feb­ruary
28, 1919.
WISCONSIN
1919 (613). Provides for county landing fields.
HAWAIIAN ISLANDS
1917 (107). An act prohibiting the operation of air­planes,
balloons, and other aircraft in the territory
of Hawaii with certain restrictions. Approved April
19, 1917.
•
CHAPTER III
INTERNATIONAL AERIAL LAW IN TIME OF PEACE
Passing from the mere narrative of the origin,
growth, and development of aerial law, we will take
up the subject as it at present exists and discuss it
under two general beads: One, international aerial
law; and two, municipal aerial law.
In taking up this branch of our subject the most
logical thing to consider first is international aerial
law in time of peace.
The fundamental or basic principle in the study of
international aerial law is the one of sovereignty in
the air. Mr. George Gleason Bogert in his article on
l'roblems in .Aviation Law, appearing in Volume VI,
No. 3, of the Cornell Law Quarterly, pages 271, 273,
274, says the following:
.. The development of peace-time international air
law was long retarded by a conflic:t of views among
jurists upon the fundamental question of the relation
of a State to the space over its territory. Some con­tended
that the air is analogous to the high seas, that
uo State exercises actual control over it, and that
there should be absolute freedom of navigation of the
air, with no restriction by the State beneath, just as
there is feedom of navigation of the high seas. Others
favored the 'zone theory.' .According to this view
navigation was to be free above a certain height and
the subjacent State was allowed sovereignty up to
tllat height. Tlli · cloctrine resembled that of terri­torial
waters, by which the State bas exclusive juris­cliction
to tile 3-lllile limit. Yet other lawyers thought
that there should be freedom of navigation of the air,
subject merely to a right in the subjacent State to
enact police and protee:tion la ws. Still a fourth group
held that the State is the absolute sovereign of the
space above its territory, just as it is of its land and
inland. and territorial waters. And, lastly, there was
a va1iation of the ' sovereignty theory ' to the effect
that, while the States could prohibit flight over their
ter ritories by 1·cason of their sovereig·nty, yet they
ought to dec:lare navigation of the t1 ir free, ·ubject to
certain regulations and restrictions, designed to pro··
tect life, guard domestic commerce, and insure na­tional
safety. The ~e ideas and variations of them
have been expounded many times in books and articles
appearing principally iu the period from 1900 to 1914.1
1 Hazeltine, 'J'he Law of tlle Air (1911) ; Valentine, 22
Jurid. Rev. 16, 85; 23 Ju rid. Rev. 324; Bellot, The Sov­er
eignty of the Air, 3 Int. L. N. 133 (1918) ; The Law of
Civil Aerial 'J'ransport. nazeltine, 1 J ou r. Comp. Leg. N. S.
76 (1919) ; Hershey, 'l'he Tnternational Law of Aerial Space,
6 Am .. J. Int. L. R81 (Hll2) ; Lee, Sovereiguty of the Air,
7 Am. J . Int. L. 470 (1913) ; Kubu, The Beginnings of Aerial
Law, 4 Am. J . lilt. L. 109 (1910) ; Myers, 26 Green Bag 57
(1914). For a list of foreib'll books on tbe subject see
Myer s, 4 Jour. Cr. L. 815.
.A discussion of the respective merits of these divers
tlteories would be academic and useless, since, as will
later herein appear, one of these views has definitely
prevailed and the others are for all practical purposes
obsolete.
··Tile International .Air Navigation Convention of
October, 1919, sta r ts out with its .Article I 'The high
contracting parties i'ecognize that every power has
complete and exclu ive sovereignty over tbe air space
above its territory.' l!'or the purpose of the present
convention the territory of a state shall be understood
as including the national territory, both that of the
mother country and of the colonies and the terri­torial
waters adjacent thereto."
This was unquestionably the theory o[ law acted
upon by all the nations of tbe world in any way in­volved
or affected by the late World \Var, thereby
furnishing precedent for the same, and since this
convention now stands ratitied by practically every
civilized country of the wor1d, and bearing iu mind
our definition given at the outset of what law itself
is, this basic principle of entire. complete, and ex­clusive
sovereignty in the a ir space above the terri­tory
and territorial waters resting in the subjacent
State, must be takeu unqualifiedly as the law. For
the last reason just stated we might regard the Inter ­national
.Air Navigation Convention of 1919 as the
Yery ·• magna carta " of au peac:e-time aerial naviga­tion
regulations, and hence we will take up its study
in detail. It is composed alto~ether of 43 articles am!
8 (from A to H. inclusive) 11 nuexes, these aunexes
by arlicle 39 being of ·• the ,;a me et'l'ect * * * as
the convention itself." 'l'hese 43 articles in turn are
divided into 9 chapters uncler the following heading,;:.
Ubapter I- General principles.
Chapter Il .-Tl1e nationality of aircraft.
Chapter IlI.- Certificates of airworthiness and
competency.
Chapter IV.- Admission to air navigation above
foreign territory.
hapter V.-Rules to be observed on departure,
when under wa.v, and on landi 11 ~.
Chapter VI.-Prohibited tran. port.
Chapter VIL-State aireraft.
Chnpter Vlll.- Inte rnational Commission for Air
Navigation.
Chapter IX.-Fi11al provisions.
The annexes are listed under tbe following head-ings:
A.-Tbe marking of aircraft.
B.-Certificates of airworthiness.
C.-Log books.
(10)
n
D.-Rules as to lights and signals-Rules of the
air.
E.-Minimum qualifications necessary for obtain­ing
certificates as pilots and navigators.
F.-International aeronautic maps and ground
markings.
G.-Collection and dissemination of meteorolog­ical
information.
H.-Customs.
Article I , chapter l, as already seen, fixes the right
of sovereignty in the air space, though under Article
II each contracting · State binds itself to accord free­dom
of innocent passage above its territory and ter­ritorial
waters in time of peace to the aircraft of
other contracting States, provided that the conditions
established in the convention are observed. The
United States not being one of the contracting pow­ers
to this convention, it was necessary for the
Department of State to separately procure the con­sent
of every nation along the route at the time of
the around-the-world flight in 1925 permitting our
planes to :fly over the territory of those countries,
and this, too, was accomplished with no little diffi­culty
and with much delay, all of which would have
been obviated bad we been a party to this con­vention.
It is further recognized that each State has the
right of making such local regulations as it deems
fit, with the condition that all regulations shall be
applied without distinction of nationality.
Under Articles III and IV every State is given
the right for military reasons, or in the interest of
public s11fety, or establishing certain prohibited zones,
and "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 as soon as possible outside the
prohibited area at one of the nearest airdromes of
the State unlawfully flown over." Annex F con­tains
the international aeronautical maps and notices
of prohibited areas are on file, and no international
flight should be undertaken without a study first of
these maps and the notices of prohibited areas.
Chapter 2 deals with the question of the nationality
of aircraft. It being evident that the so-called free­dom
of the air as championed by Fauchille and
others before the World War has been supplanted by
the practically universally< r ecogni zed doctrine of
State air sovereignty, and that the right of innocent
passage analogous to the similar right in ships in
territorial waters exists only by international con­vention
or comity and is revocable by the sovereign
of the underlying land, the question of some law fix­ing
the nationality of aircraft itself immediately as­sumes
proportions of importance. As stated by Mr.
J . M. Spraight in his work on Aircraft in Peace and
the Law, page 13, " 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 under which
foreigners may be naturalized. It is, nevertheless,
an advantage that there should be some agreement be­tween
States on the conditions upon which nationality
should be granted or recognized. Otherwise, a con­flict
of laws will arise as indeed has happened already
in regard to naturalization laws."
When the question of a flight over the high seas,
or the doctrine of exterritoriality, sometimes called
"the law of the flag," is involved, the matter of
nationality of aircraft becomes vitally essential.
Other considerations that lend importance to the
nationality of aircraft are the possibility of diplo­matical
relations and protection as well as fixing the
rights and duties in connection with customs and
other civil rights of those on board. Five different
means of determining nationality have been proposed,
each supported by views of many jurists ;md inter­national
societies and may be stated as follows :
(1) The port d'attache or home ah-drome of ah--
craft.
(2) The place of its construction.
(3) The domicile of owner .
( 4) The nationality of owner.
( 5) '.l'he {)lace of its registration.
Much interesting argument has been produced un­der
these five criteria, but Article VI of the Interna­tional
Air Navigation Convention definitely states
" aircraft possesses the nationality of the State on
the r egister of which it is entered in accordance with
the provisions of section 1 (c) of Annex A." And
Article V reads " no contracting State shall, except
by a special and temporary authorization, permit the
flight above its territory of an aircraft which does
not possess the nationality of a contracting State."
Just as we have taken the provisions of this con­vention
as settling the question from an international
point of view of the sovereignty of the air space, so
we think it is equally settled that by the same reason­ing,
international law now fixes the nationality of
aircraft by the standard of the place of registration.
Article VII provides " no aircraft shall be entered
on the register of the contracting States unless it
belongs wholly to nationals of such States." The
registration of aircraft conferring nationality closely
follows the analogy of ships where registration is
required. While not of itself furnishing nationality,
ownership and registration are closely interconnected.
In international law the merchant vessels of a State
are regarded as its property. It exercises adminis­trative
and criminal jurisdiction over all acts done
on board either by subjects or foreigners. It exer­cises
full civil jurisdiction over subjects on board
and over for eigners to the same extent as if they
were on the soil of the State, and it possesses pro­tective
jurisdiction to the extent of guarding the
vessel from 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
12
vessel or persons aboard her.' When flying over or
being upon the high seas undoubtedly these same
duties, rights, and r esponsibilities would apply to
aircraft where no law runs but that of the flag, whicll
is the law of the country to which the ail:craft be­longs.
Recognizing this the international air naviga­tion
convention leaves to each State the determina­tion
of what aircraft shall be entitled to registration,
with the exception of that contained in the provisions
of Article VII already quoted, and that portion of
the same article which relates to incorporated com­panies.
The provisions as to corporate ownership are
as follows:
"No incorporated company can be registered as
the 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-tllirds of the directors,
possess such nationality, and unless the company ful­fills
all other conditions which may be prescribed by
the laws of said State."
It can thus be seen that the nationality of aircraft
really revolves itself back to the nationality of the
owner or owners interconnected with registration.
The possibility of double registration is met by
prohibiting the r egistration in more than one State.
The International Air Navigation Convention further
]Jrovides for the exchange or copies of registration
and cancellation lists among the contracting States
and that all aircraft engaged in international navi­gation
must bear their international marks, as well
as the name and residence of the owner in accord­ance
with Annex A of the Convention, which gives
in great detail the requirements to be met in mark­ing
aircraft, location of international marks, types
of letters, spacing between marks, the maintenance
of marks, and a table of marks for all States. See
Articles VIII, IX, and X, and Annex A of Interna­tional
Air avigation Convention.
The original draft of tbis convention contained
the following provision:
"All persons on board an aircraft shall conform to
the laws and regulations of the State visited.
" In case of £light made without landing from
f1 ontier to frontier all persons on board shall con­form
to the laws and regulations of the country
flown over, the purpose of which is to insure that ·the
passage was innocent.
" Legal relations between persons on board an air­craft
in flight are 00overned by the law of tbe na­tionality
of the aircraft.
" In ca e of crime or misdemeanor committed hy
one person against another on board an aircraft in
flight the juri diction of the State flown over applies
only in case the crime or misdemeanor is committed
against a national of such State and is followed by a
Innding during the same journey upon its territory.
" The State flown over has jurisdiction: ( 1 ) with
regard to every breach of its laws for the public
•Hall on International Law, Seventh Edition, pp. 263- 266.
safety &nd its military and fiscal laws; (2) in case
of breach of its regulations concerning air naviga­tiou."
Under this provision the jurisdiction of the State
.tlown over is limited to the punishment of aviators
and passengers for the violation of regulations neces­sary
to insure innocent passage, and to torts or
crimes against a national followed by landing on the
State territory. Jurisdiction over all other torts and
crimes committed or contracts made on board would
be conferred on the State whose nationality the ail:­craft
possessed. This is in practical effect the doc­trine
of exterritoriality, which may be defined as the
right of one State to exerci e its jurisdiction within
the tenitorial limits of another State.• This grant­ing
of exterritorial jurisdiction was opposed by the
delegates of the Uuited States, and the above-quoted
provisions of the original Convention were omitted
from the final draft. The result is that there is no
definite agreement of international law as to what
jurisdictiou would attach where the aircraft of one
nation flies over the tenitory of another, though it is
safe to say that in all probability the American view
would prevail. That is to say, the determining juris­diction
would be that of tbe State flown over. This is
certainly consonant both with the theory of absolute
State sovereignty and with the analogy of ships and
maritime law. Merchant vessels on the high seas are,
for purposes of jurisdiction, acknowledged to be a part
of the territory of the State whose papers they carry.
Crimes by whomsoever committed and causes of ac­tion
arising on board to w~ich passengers or mem­bers
of the crew are partie , are triable by its courts.
Such jurisdiction in criminal cases is not affected
by the fact that the accused is a foreigner to the
nationality of the ship, the case being precisely tbe
same as if the offense had been committed within
the territorial limits of the State under whose flag
the ship sails. So soon, however, as a merchant ship
enters a foreign port it is subject in certain respects
to the municipal laws and especially the criminal
jurisdiction of the country in which this port is
situated. For any unlawful acts done by her while
thus lying in the port of a foreign State, and for all
contracts euterecl into while there by her master or
owners, she is made answerable to the laws of that
place; nor can an immunity from the operation of
the local law be claimed for her master or crew if they
break the peace or disturb public order in such port
by the commission of crimes. But the comity and
practice of nations have established the rule of in­ternational
law that such >essel so ituated is for
the general purpose of governing and r egulating the
rights, duties, and obligations of those on board to be
considered as a part of the territory of the nation to
which she belongs. It therefore follows that acts
happening on board which do not concern the tran­quillity
of the port or affect persons foreign to the
crew are not amenable to the local jurisdiction, such
, Dav is- The Elements of International Law, page 7.
13
matters being as a rule justiciable only by the courts
of the State to which the ves ·el belongs. As to ships
of war in foreign ports by the general consent of na­tions
immuillty fi;om local jurisdiction is extend ed to
co,·er the period of their sojourn in the ports or other
territorial waters of a foreign State. It has been a
mooted question as to whether this was a matter of
right or a pri>ilege existing by comity. But the latter
Yiew seems to prevail, as . ·howu by the decision of
board of arbitration in the Geneva case, which held:
"The privilege of exterri toria lity to vessels of war
bas been admitcd into the law of nations, not as an
absolute right but solely as a proceed ing founded on
the principles of cou rtesy and mutual deference be·
between different nations."'
'l'hat this same rule "l>Ould be adopted in interna­tional
aerial law is shown first by the omission of the
contrary doctrine from the In ternational Air Naviga­tion
Convention ; econd, by both the codes of aerial
law approved by the International Congress on .Avia­tion
Legislation at its sessions held at Prague in 1022
and at Rome in 1924, r espectively, \Vhich codes, after
dividino- aircraft into public and private, contain the
following articles :
"Article 8. In no case shall a military aircraft of
one State fly o•er the territory of another State, nor
land thereon, without previously having obtained
authorization to do so. This authorization. may be
subject to the observation of specially determined con­ditions.
"Article 9 . .Aircraft thus authorized enjoy the priv­ilege
of exterritoriality. However, it is in every case
subject to the observation of rules relative to the
police of aerial navigation.
".Article 10. In flying o•er and landing on foreign
territory police and custom aircraft are subject to
the same conditions as are military aircraft without,
however, having the right to the privileges of exterri­toriality
accorded to military aircraft."
As to private aircraft the above-mentioned codes
specify that acts committed and events happening on
aircraft in flight, and which do not affect the security
or public order of the underlying State, are subject
to the legislation and jurisdiction of the country of
which the aircraft has its nationality. It is thus seen
that this is practically the ame rule as applies in
maritime law.
The International Air Navigation Convention of
1919 likewise divides aircraft into (a) military air­craft;
(b) aircraft exclusively employed in state
service, such as posts, customs, police ; (c) all other
aircraft than those described in (a) and (b) are
deemed to be private aircraft, and all State aircraft
other than military, customs, and police is treated as
private aircraft. Military aircraft is one commanded
by a person in the military service detailed for the
purpose. This convention provides that no military
aircraft of a contr acting State shall fly over the terri-
•Davis- The Elements of International IAlw, pp. 70, 71,
74, and 75. Moore- Digest of International Law, sec. 33.
100102-26---2
tory of another contracting State, nor land thereon
without special authorization, and in case of such
a uthorization .·uch military aircraft ·hall enjoy in
principle, in the absence of special stipulation, the
privileges which are customarily accorded to foreign
ships of war, which would include the doctrine of ex­territoriality.
But it is likewise provided that a mili­tary
aircraft which is forced to laud, or which is r e­quested
or summoned to land, shall by r eason t hereof
acquire no right to the privileges referred to. Police
and customs aircraft a uthorized to cross a frontier are
not entitled in any event to the priYilege accorded
military aircraft. From all this it would appear that
no aircraft would be en titled to the doctrine of exter­ritoriality
as a matter of right, and that the same
rules applicable to ships apply both to military and
private or commer cial aircraft.
The convention sets forth rather fully the rules
which shall govern the admis ion to air navigation
above foreign territory, and in brief provide that
every aircraft of a contracting State bas the right
of free passage over the territory of another State
without landing, but must follow t he r oute fixed by
the subjacent State. The right is likewise given to
the subjacent State to direct a landing, and all rules
and r egulations of the State flown over as to flying
and lauding must be complied with. The right is
given to each State also to establish " r eservations
and r estrictions in favor of its national aircraft in
connection with the carriage of persons and goods
for hire between two points on its territor y," but any
such State establishing reservations and re trictions
may be subjected to the same r eservations and r e­strictions
over the t erritory of any of the other
contracting States, even though the latter State does
not impose these reservations and r estrictions on other
foreign aircraft.
The following article of this convention, being
article 18, is of particular importance :
"Every aircraft passing through the territory of
a contracting State, including landing and stoppages
reasonably necessary for the purpose of such transit,
shall be exempt from any seizure on the ground of
infringement of patent, design, or model, subject to
the deposit of security, the amount of which, in de­fault
of amicable agreement, shall be fixed with the
least possible delay by the competent authority of
the place of seizure."
This article would prevent an arbitrary attachment
of foreign aircraft by virtue of any infringement of
patent, design, or model, but at the same time affords
a remedy in a legal way to anyone claiming such an
infringement.
Some of the other essential provisions of the Inter­national
Air avigation Convention are those which
r equire that all aircraft engaged in international
navigation must be provided with a certificate of
airworthiness issued by the State whose nationality
it possesses, and the commanding officer , pilots, engi­neer
s, and other membe1·s of the crew must posses·
required certificates of competency and li censes simi-
i14
larly issued Each contracting State is required to
recognize the certificates of any other contracting
State, bnt the right is re errnd in each State to
r efuse to r ecognize any certificate or license granted
to one of its nati onals by a nother State. No wireless
apparatus can be carried without a required special
license, but e• ery a ircraft used in public transport
and capable of carrying 10 or more persons must be
equipped with sending and r eceiving wireless appa ra­tus.
Detail rules to be observed on departure, when
under way, and on landing a re set forth and require
eYery aircraft engaged in international navigation to
be provided with (a) a certificate of r egistration;
(b) a ce rtificate of airwo1·thiness ; (c) certificates
and licenses of the commanding officer, pilots, and
crew ; ( d) list of names of passengers ; ( e) bills of
lading and manifest; (f) log books; (U) if equipped
with wireless, special license therefor. The country
departed from, landed in, or tlown over, has the right
of examination to verify a ll these documents and each
State " undertakes to adopt measures to insure that
every aircraft fl ying above tbe limits of its territory,
and e,·ery a ircraft wherever it may be, carrying its
nationality mark shall comply with the r e"'ulations
contained in Annex D. Each of the contracting
States under take to in sure the prosecution or pun­h;
hment of a ll pe1·sons cont ravening the ·e r egula­tions."
.As stated heretofor e, t his convention is a peace-time
or ch·il code, and while it is provided · that military
aircraft and aircraft e:xclu ·ively employed in State
service, such as post, customs, and police, may be
ad mitted to fly over the territory of another State
by special a rrangement, every other a ircraft (private
and State) is granted the right, comparatively, of
free navigation. Under a chapter entitled "Pro­hibited
transport," the convention contains an ex­press
inhibition again ·t the ·carriage of explosives,
arms, and munitions of war, and to each State is
left the right likewise of prohibi ting the carriage or
use of photographic apparatus. or the caniage of
a ny other obj ects.
CHAPTER IV
CUSTOMS
There is no provision in the International Conven­tion
for Air Kavigation that \YOUlcl prohibit special
treaties betweeu the contracting Sta tes or others
with respect to customs, police, posts, and like mat­ters
of iuternational naYiga tion. However, Annex H
of the convention sets forth in detail general principles
and rules governing the matter of customs. Under
the terms of this annex a ny aircraft going abroad
must depart only from airdrome. specially designated
by the customs administration of each contracting
State, called "cus toms airdromes." An aircraft com­ing
from abroad likewise shall land only at such
airclromes. Of course, it would be possible for air­craft
to drop contrabands by means of parachutes,
and the matter of smuggling might be a difficult one
to prevent, but no nation or people can a ssume that
there is to be a willful violation of laws, regulations,
or right conduct on the part of another , and it is
thought that there would be no more violation of
customs laws and r egulations by the means of aircraft
than there is at present with the use of either land
or sea transportation. A complete sample manifest
to be used in customs declaration is set forth in this
annex.
The United Sta tes GoYernment, not being a signa­tory
of the convention, has at present only n·ebulous
regulations in this connectiou. The Public Health
Service has established quarantine rules for aircraft.1
The first division of customs of the Treasury De­partment
has issued, under date of December 1, 1920,
the following statement : "There are no cu toms
laws on the stat ute books relating particularly to
the importation or exportation of mer chandis'e by
aircraft, and ther e are no r egulations covering the
subj ect generally. However, mercha ndise imported or
exported by aircraft would be subj ect to the same
laws, r egulations, and duties as if imported ·or ex­ported
by vessel, traiu, automobile, or other vehicle,
and under these regula tions the craft would be re­quried
to Janel at the port of entry nearest to the
point at which it entered the United States, in order
1 United Sta t es Qua rantine Regul a tions of Oct . 22, 1920,
a s amended by Secr etary of Trea ury.
tha t customs formalities might be complied witlt.
Whether the craft itself would be subj ect to du ty, if
a foreign production. would depend on whether it was
owned by a r egular tran:<portation company and oper­ated
as a common carrier. If so, it would not be
subj ect to duty, otherwise it would be. The depart­ment
has, ho·wever, ruled that airplanes of foreign
manufacture may be brought into the United States
uncler their own power free of duty for a period of
30 clays for touring purposes under article 422 of the
Customs Regulations of 1915. '.L'bis would also apply
to any other form of aircraft brought in for a similar
purpose.
"As stated above, the craf t would be required to
laud at the port of entry nearest to the point at which
the ame entered the Unitecl States. If the airclrome,
or lauding field, should be situated witbin the limits
of such port, the customs examination and super­vision
of arrivals and departures would be without
expense to the owner of the vessel, but if situated out­side
the limits of the port examination and supervision
of arrivals and departures would be at the expense
of the parties in interes t.
"The r equirements under the passport control act
of May 22, 1918, and the President's proclama tion of
August 8, 1918, made in pursuance thereof, would be
applicable to arrivals and departures of persons by
aircraft, the same as to arrivals and departures of
persons by vessel or vehicle. The regulations regard­ing
export declaration · covering shipments by land or
sea would also be applicable to exportations by air­craft."
Tbe United States Coast Guard bas been charged
with the preYention of smuggling as well as the en­forcement
of such navigation laws and custom laws
in general as tbey exist in this country. As a matter
of fact, the opinion is hazarded that with the various
li t ening devices, signal arrangements, and the effi­ciency
in patrol capable of being maintained, the
matter of the enforcement of customs and quarantine
laws as affected by aircraft should be one of easier
accomplishment than tbe same are in connection with
land or sea transportation.
(15)
•
CHAPTER v
INTERNATIONAL COMMISSION FOR AIR NAVIGATION
Article 34 of the International Convention for
Aerial Navigation establishes a body under the name
of " The International Commission for Air Naviga­tion,"
which is made a permanent commission and
placed under the dia:ection of the League of Nations.
This commission is composed of two r epresentafives
from each of the following States: The nited
States of America, France, Italy, and .Japan; one
r epresentative of Great Britain and one of each of
the British Dominions and of India; and one r epr e­sentative
of each of the other cont11:acting States.
Each of the five States first named, Great Britain, the
British Dominions and Iudia, counting for thi · pur­pose
as one State, ar e given the least whole number
of votes, which when multiplied by five will give a
product exceeding by at least one vote the total num­ber
of rntes of all other contracting States. All the
States other than the first five named are each given
one vote. This international commission determines
its own rules of procedure and the place of its per­manent
seat. The duties of the commission are as
follows:
(a,) To r eceive 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 them to changes
adopted.
( b ) To carry out the duties imposed upon it by the
present a rticle and by a rticles 9, 13, 14, 15, 17, 27, 2 ,
36, and 37 of the present convention.
(c) To amend the pro>isions of Annexes A to G.
( d) To collect and communicate to the contract­ing
States information of evCfl"y kind concerning inter­national
air navigation.
( e) To collect and communicate to the contract­ing
States a ll information relating to wireless teleg­raphy,
meteorology, and medical science which may
be of interest to air navigation.
(f) To insure the publication of maps for air navi­gation
in a ccOfl."da nce with the provisions of Annex F.
(g) To give its opinion on questions which the
States may submit for examination.
In addition to the above duties the International
Commission for Air NaYigation settles all disputes
as to the meaning of any of the technical r egulations
in the annexes to the con>ention and for otherwise
carrying out the collection and dissemination of data,
certificates and information. Any modification of the
provisions of any of the annexes may be made by the
in ternational commission when such modification
shall have been approved by three-fourths of the
total possible votes which could be cast if all t ho
States were represented, and becomes eliectiye f rom
(16)
the time when it shall ha,·e been notified by the in-·
ternational commission to all contracting States. Any
proposed modification of the articles bas to be ex­amined
by the commission whether it originates with
one of the contracting States or with the commis­sion
itself, and no such modification can be proposed
for adoption by the contracting States unless it shall
have been approYed by at least two-thirds of the
total possible votes. All modifications of the articles
of the con>ention (but not of the provisions of the
annexes) to become eliectiYe must be adopted by the
contracting States. The expenses of organization and
operation of the international commission are borne
by the contracting States in proportion to the num­ber
of votes at their di sposal. All expenses oc­casioned
by the sending of technical delegations are
borne by the r espective States.
In the event of a disagreement between two or
more States relating to interpretation of the conven­tion,
the question in dispute must be determined by
the Permanent Court of International Justice estab­lished
by the League of Nations. Any State which
did not take part in the World War of 1914-1918 is
permitted to adhere to the provisions of this conven­tion
by merely notification, through diplomatic chan­nels
to the Government of the French Republic, and
by it to all signator1.es of the convention or other ad­hering
States. A State which took part in the World
War of 1914-1918, but which is not a signatory of
the present convention, may adhere only if it is a
member of the League of Nations, or until J anuary
l, 1923, if its adhesion is approved by the allied and
associated powers, signatories, or treaties of peace
concluded with the said State. After January 1,
l!l23, this adhesion may be admitted if it is agreed
to by at least three-fourths of the signatory and ad­hering
States. Application for adhesion must be
addressed to the Government of the French Republic,
which will communicate it to the other contracting
powers. Unless the State applying is admitted ipso
facto as a member of the League of Nations, the
French Go>ernment will receive the votes of said
power s and announce to them the r esult of the voting.
In pite of the fact that the United States Govern­ment
has not ratified this convention, though promi­nent
in its formation, it is safe to venture the state­ment
that if called into que tion all the provisions
of this convention with its annexes would be con­sidered
as a codification of the rules of law as per­ta
ining to aerial navigation. The convention was
thoroughly considered by the Manufacturers' Aircraft
Association of this coun try, which body recommended
its ratification.
CHAPTER VI
MARITIME OR ADMIRAL TY LAW
The rules and principles of maritime or admiralty
law govern all rights, obligations, and duties of bydro­airplanes
" ·hen a ctually on the water, and also the
salvage of all types of aircraft wreckecl at sea in the
absence of any agreement to the contrary. The
applicability of maritime law to hydro-aircraft when
actually on the water bas been settled by juclicial
decisions of the United States courts. The reasoning
of the courts is that when such craft are on the
\Yater they are, in fact, vessels; but when they leave
the water they at once cease to be vessels and be­come
airplanes and are no longer gornrn ed by mari­time
law. The juriscliction of admiralty courts over ,
and. the applicability of maritime law to, the salvage
of all aircraft wrecked at sea is provided for in
the 23d article of the 1919 International Co1wen­tion
for the Regulation of Air Navigation. It is
possible, ancl, in fact, probable, that through con­stitutional
amendment, or e•en legislative enactment
without constitutional change, a clmiralty jurisdiction
will be s till further extended to embrace problems
arising out of air navigation. It is therefore impor­tant
to learn something of the most important rules
of admiralty or maritime law.
'l'hose practicing the infant art of aeronautics
have not only inherited many of the laws of sea­fa
ring people, but they seem to have acquired some­thing
of the same point of view or antipathies toward
rules or regulations which they believe to have origi­nated
with those unskilled in their art. Twenty years
or more ago, according to nited State· Circuit Juclge
Alfred C. Coxe, of the second circuit, this viewpoint
was e:-..»rcssecl by an ancient mariner in a case then
being tried in the United States court for the south­ern
district of Ne"· York. When on the witness stand
he was asked why he hacl fa iled to observe one of
the international rules of naYigation. His r eply was :
"As I uodersta ncl it, those laws were made by t hem
that clon·t understand it." In spite of this >iewpoint,
customs therefore arose which, like all other primi­tive
laws, acquired their a uthority by a backing of
physical force. Maritime or admiralty law was, in
the earliest days, administered by a high naval officer
of the Crown known as an ".Aclmiral " (hence the
term " admiralty "), whose judgments were those
of an autocrat, put whose procedure was simple a.nd
speedy. The countries which fir. t made extensive use
of maritime laws were a part of the Roman Empire
and for that reason present-day maritime laws and
practices are much more akio to the civil or Roman
law than to the Engli h common law.
The most ancient maritime code was adopted about
900 B. C. by the Rhodia11s. Greece, Rome, and all
other Mediterranean ountries obtained much from
this code. All present European maritime codes are
based on the laws of Oleron and ·wisby, enacted dur­ing
the early par t of tbe Middle Ages. Oleron is an
island of l!~rance near tbe mouth of the Charente
RiYer. Wisby was the ancient capital of Gothland
in the Baltic Sea. The e laws of Oleron and Wisby
are r ecognized as authorities in the admiralty courts
of Great Britain, the nitecl States, and other coun­tries
eYen to-clay. The commercial towns which
formed the Hanseatic League adopted a maritime
code in 1241 which wa largely a reenactment of
preexisting law. This code ii; likewise quoted as au
authority in present-clay admiralty courts.
The United States Constitution provides in .Article
III, section 2, that the Federal Government shall have
jurisdiction over "all cases of admiralty ancl mari­time
jurisd iction." It was obviously the purpose of
the Consti tution to place this important branch of
the law, international in character, solely under tlrn
Federal Government and thus avoid the lack of uni­formity
which would r esult from individual State
r egula tion . Therefore, all aeronautical ca es which
a re governed by admiralty law are solely within the
jurisdiction of the Fecleral courts. The close simi-the
international rules of navigation and maritime larity of air nayigation to navigation of the water has
practices, although enforced by judges who are ordi- been suggestecl ancl urgecl by counsel in a few aircraft
narily lanclsmen, represent the best thought of the cases which have been brought in the aclmiralty court::;
world's most competent navigators. of the Unitecl States with the argument that since
The rules of maritime law are very olcl. The aclmiralty jurisdiction has, in the past, been extendecl
origin of this branch of the law is hidden in the to meet new conclitions ancl new needs of commerce,
tradi tions of the ancients. When man first began therefore the admiralty courts should, in view of this
to navigate the river s, the lakes, and the seas it be- new problem, assume juriscliction of all cases aris­came
necessary to have rules governing his maritime ing out of navigation of the air. In the case of The
relations with his fellows. The sea being the com- Crawford, Bros. No. 2 (1914), 215 F ed. 269, which
mon meeting place of men from all nations, it was seems to be the first such case which was brought in
also important that all na tions should follow much an a clmiralty court in this country, the United
the same rules and practices in determining rights States District Court in the State of Washington ruled
and liabilities and enforcing remedies. Maritime that "in the absence of l egislation conferrilng furis-
(17)
18
diet ion, Done would obtaiD in this court, and that
questions such <lcS those raised by the libelant must be
relegated to the common-law courts." No such ca.'e
bas eYer been carried to the Supreme Court of the
nited States, and in the absence of a ruUng to the
coDtrary by that court, it is the law of the United
States that admira lty jurisdiction does not apply to
all aircraft uDtil so extended by competent legisla­ti¥
e enactment. Some writers have coDtended that
the Federal Constitution would have to be amended
in order to gil·e the Federal admiralty courts exclu­sil
·e jurisdiction in the premises, but the similarity
between the rules naturally applying to water navi­gation
and air naYigation is so striking that it is
rea~onably probable that the courts would hold, as
intimated in numerous dicta in judicial opinions, that
the admiralty comts of the Federal Govemment would
ham exclusiYe jm:isdiction in air naYigation cases if
Congre~s should so pro,-ide, pursuant to the author­ization
granted in Article III, section 2, of the Con­stitution.
As to the salYage of aircraft wrecked at
sea, it may be assumed that the adoption by the
United t>tates of the aboYe-mentioned 23d article of
llie 1919 conYention \"l"Ould undoubtedly confer ex­clusiYe
jurisdiction of such cases on the admiralty
courts. Now \Ye shall pass to the consideration of
the three suhcli\"isions of maritime law with which
one iDterested iD air na¥igation i§; most likely to
come in contact. Those subdivisions are collision,
to,vage, and salvage.
thrown O¥erboard to sa,·e the vessel and cargo and
all are required to bear the loss on a pro rata basis.
The earl.r decis ions of tlie courts of the Yarious coun­tries
were in hopeless conflict and confusion, bowe\·er,
on the questi on of bow and \Yhen the division should
be made, probably on account of the obscurity of the
origin of the practice aud the com;equent diversity
of reasons given for it. , 'ome court · allowed no
diYision except in the case of mutual fault, others
diYided the loss when there was no fault, some
divided the loss equally \\·hen mutual negligence oc­cuued,
alld other prorated the loss according to the
comparati\-e degree::; of negligence of the parties.
COLLISION
It has been estimated that at least 50 per cent of
the time of the admiralty courts of the nited State
occupied with the hearing of collision cases. The
nayigation lanes, eYen on a broad sea, are narrow
and are frequently much traYeled. Collisions are
t l1e refore Hot uDcommon on the high seas and occur
frequently in harbors, channels, and riYers. They
sometimes occur with hydroplanes when on the water
and doubtless will be more common as the use of
such aircraft increases.
In e¥cry collision case it i · important to determine
what pnrties, if any, were negligent or at fault. The
law does not require a mariner to exercise the high­est
possible degree of caution and skill, but merely
such a is reasonably r quired nuder the circum­stances
of the case and has been found by experience
to be adequate for the protection of life and prop­erty,
as judged by the conditions which existed at'
the time and place of the accident. Collisions may
occur without the fault of the owners or navigators
of either Yes ·el, by mutual fault, by in scrutable fault,
ot· by the fault of those in charge of only one of the
colliding vessels.
The early maritime codes treated collisions (ex-cept
under certain circumstances, such as when one
party only was at fault) as common misfortunes to
be borne by all parties thereto, following somewhat
the same principles of law as are applicable to gen­~
·al avera"'e wlwu a tna i cut a war or ~oods are
In England the law was finally settled by a decision
of the Hou:se of Lords in 1 24 that the damages
should be diYided only when there was mutual negli­gence
and that the di\·ision should then be equal re­garclless
of the comparati\"e degrees of fault because
of the impossibility of determining the exact degrees
of negligence of the variou · parties. This rule has
been universally followecl by admiralty courts in the
United States with respect to property damage, al­though
in recent years the United States courts have
resorted to a pro rata dhision in personal-injury
cases. In the ca;:e of '1.'he Laclcawa1ma (1007), 151
Fed. 499, the United States District Court for the
Southem District of Kew York allowed a libelant
only one-third of his damage. for personal injuries
because bis negligence was greater than that of the
othet· Ye ·sel. The United States Supreme Court case
of 1'he Mar.c .i1Ior1"is (1890), 137 . S. 1, is there cited
as an authority, in which latter case the Supreme
Court sustained the lower court in departing from the
ordinary rule of dividing damages equally, the court
charging the libelant with all pain, suffering, and
merely consequential damages and the Yessel with the
libelant's wages, but in approYing that di\"isiou the
Supreme Court expressly declined to 11ass on the
question as to whether or not such diYision was an
equal diYision. Later Federal cases (Conley v . Con­solidation
Coastwise Co., 1917, 242 Feel. 591, and 1'he
1'ourist, 1920, 265 Feel. 700) recognize the principle of
discretionary diYision in personal-injury cases. From
the stanclpoin t of logic there is no reason for distin­guishing
a personal-injury ca:·e from one of property
clam age.
From the above it will be seen that the rule of the
early maritime codes, apportioning the damages in
coUision cases, \Yas later restricted to equal division,
and then only in cases of collisions where mutual
negligence existed; was then broadened to include not
only collisions but all maritime torts, and has in the
nited States now partially returned to the original
practice of apportionment.
In the case of collisions without fault the law in the
United States and Great Britain permits no recovery,
inasmuch as a liability can rest only upon a finding ot
fault of one or both of the colUding vessels. The
same rule is applied in cases of inscrutable fault-,
where it is impossible to ascertain with r easonable
certainty w\lo ~ ta !t i,:a\lseq th!;) !\ec\d~nt\ Where
19
one vessel is solely at fault, that vessel is required to
bear the entire loss.
From the above discussion of the mutual negli­gence
cases it is apparent that maritime la \TS, like
other laws, differ considerably in various jurisclic­tions.
Therefor e, when collisions occur between ves­sels
of different nat ionalities a question of conflict of
laws arises. ·when such a collision occurs on the
high sea · between vessels of different nationalities
entirely outside the territorial botrnclaries of any
country, the la1v of the country where the trial occurs
governs the case. If, however, both vessels are of the
same nationality the law of that country will be ap­plied
by the court, even though it differs from the law
of the country where the litigation is prosecuted.
This same rule applies in the case of vessels of dif­ferent
nationalities where the law of such countries
is the same, th ough differing from the law of the
forum. Collisions occurring within the territorial
boundaries of a country are governed by the laws of
that local conn.try, r egardless of the nationali ty of
the vessels.
TOW AGE
Hydro-airplanes fl ying across seas or other waters
are sometimes forced clown before r each ing tl1eir
de. tination, a· we re the naval JJlanes which r ecen tly
attempted to fly from the west coast of the nited
States to Honolulu. A has been previously pointed
out, such craft would, when on the water, be governeu
by maritime law a· fully as orilinary water vessels.
Under such circumstances it may be necessary to
obtain towage services. By r eason of the necessities
of the case the maritime law authorizes the ma ·ter
of a vessel to contract for towage service. In legal
contemplation any such contract is deemed to be made
between the respective owners of the vessels in ques­tion-
both the tug and the tow. Towage claim arise
ont of express contracts so made, and in that respect
they differ from cla ims for salvage, as will be noted
from later discussions.
·when a towage contract is entered into, it is · im­plied
that the towing vessel has, and will use, suffi­cient
crew, equipment, knowledge, and kill to per­form
the work with rea sonable safety in so fa r as
possible for a vessel of her class, and it is negligence
for a tug to undertake the work if her capacity, gear,
or equipment is known to be insufficient or defective,
or those conditions could have been ascer tained by
reasonable inspection. Both the tug and the tow
agree, by implication, to use reasonable skill and dili­gence
so as to avoid increasing the risk or causing
unnecessary risk to the othe1·. Possession and man­agement
of the two vessels remains with their r espec­tiYe
masters and each master is duty bound to do
such things as will best protect bis own vessel and
cargo, but it is the duty of the tow to obey general
orders of the tug which, of course, has control of the
speed, course, and navigatiou of both vessels.
The compensation for towage service is usually
fixed in the contract, otherwise it is based on the rea­sonable
value of the ser vice. It is possible for the
payment to be made contingent upon the successful
completion of the service, and in such event no com­pensation
will be allowed nnless performance is pre­Yentecl
b.V the other party or by acts of Goel which
the la w recognizes as excuse for nonperformance.
Towage contracts are ordinarily strictly construed
as to the serYices to be performed, and where extra
services are r endered, such as breaking a channel
through ice or saving the tow from dangers for which
the tug is not r esponsible, extra compen ation is al­lowed
by the courts.
Payment of towage sen-ice may be enfo rced by a
proceeding in rem to enforce the maritime lien which
exists against the tow and her cargo in favor of the
tug. Ma ritime li ens, enforced by proceedings in rem,
against ship and cargo a r e a common method of
recovering for services rendered to YE!Ssels and car­goes,
not only for towage ervices but for many other
forms of services r endered at sea .
SALVAGE
Another important branch of adm irality or mari­time
law applicable to a ircraft (aircraft wrecked at
sea) is the law of salvage. Salvage is a compensa­tion
or a r ewaru a llowecl to those not composing a
ship·s crew, by whose voluntary assistance lhat ship,
its cargo, or both, are saved in whole or in par t from
loss, or in recornring such property after it bas been
lost or wrecked. The purpose of allowing salvage,
which is usually a generous amount, is to encourage
the rendering of services to ships in distr ess, thus
promoting safety of travel and the interests of
humanity.
Salvage is allowed for sa,·ing a sh ip, its cargo,
flotsam, j et;;am, ligan, or almost any property saved
on navigable waters. Under the rules of maritime law
the saving of life a lone is not sufficient to award
salvage, but if life is sa vecl in connection with prop­erty
a court will allow a larger rate of salvage on
the proper ty. Great Brita in, however, r ecently
enacted a statute author izing life salvage for saving
life from British >essels anywhere or from foreigi1
vessels in British water. . It should be noted, how­ever,
that this rule is statutory and is uu1rnown to
general maritime law.
Salvor · who volunteer their services do so at their
O\Yn risk, and their compensation is contingent upon
their success; but if they a re engaged by express
contract they may recover the agreed compensation
(unless the salvors have taken unreasonable advan­tage
of their power or position), or a r easonable
compensation if the amount was not agreed upon,
r egardless of the success or failure of their efforts.
In order to found a claim for salnige it is essential
that the ship be in imminent danger of being lost, but
20
it is not necessary that safety by other means be
impossible.
'l'be salY01 .. s right is limited to proceeding against
the property sah·ed and be bas no personal claim
against the O\Yn ei· unl e s the owner r equested the
services or bas taken possession of the salved prop­erty
and thus r endered himself per sonally liable for
the r e\vard.
'Vbile tile United States Government can not be
sued without its consent, nevertheless the courts of
the United States have held that personal property
of the United States Government which bas been
sayed by salvors is subject to a lien for salvage
\yhich is enforceable against the property so long
as it has not come into possession of the officers of
the GoYernment. (See 'l'he Davis, 10 Wall. (U. S.)
15) . Since the maritime rules of salvage apply to
aircraft wrecked at sea, it i · impor tant to note that
Go,·ernment aircraft would be govern ed by this rule.
lt is the duty of the offi cers and cr ew of a ship to
stand hy their ship to the last and therefore they
can not recoYer salyage for saving their own vessel,
but the courts will allow special compensation some­times
r eferred to as " in the nature of salvage" for
extraordinarr heroism or faithfulness in extreme
peril. 'l'b is special compensation is not to be classed
as general salvage, which is granted as a matter
of right, since the gr anting of this ·pecial compensa­tion
is purely discr etionary with the court. However,
\Yhen a ship has been abandoned by the master and
the crew discharged from duty and contract, the
members of the cr ew may claim salvage as volunteers.
In such a case the abm1donment must occur at sea
and not upon a shor e, because in the case of ship­wreck
on a coast where the crew escapes to shore the
crew is r equired to try to save the ship and their
contract is not terminated by the landing of the mas­ter
and cr ew. Passengers are under a duty to render
a ssistance to save the ship by all ordinary means,
such as '''Orking pumps and using ship equipment, but
passen00ers are not bound to stay with the ship to
the Ia t, and may leave at any time. Passengers,
ther efore. may ha1·e salvage for extr ao1·dinary serv­ices
and the u;;e of extraordinary means not f tll'nished
by the ship·s equipment. 'l'he owner of a salYing
v e~sel may claim salva "'e for services r endered by
the vessel, on accoun t of the risk of such property in
engaging in such perilous work.
Salvors acquire a lien against the salved property,
and it is not necessary for the salvors to r etain pos-session
in order to enforce their lien. 'l'he ship and
cargo are a common fund for salvage and all salvors
are paid from all the property saved.
With r espect to the ri 00b t of possession and control
of salved property, there is a di stinction between a
der elict and a vessel which has not been completely
abandoned by its mas ter and crew. Salvors acquire
the complete posse ·sion and control of the manage­ment
of der elict property, but where there has not
been an abandonment witho1it intentwn of re ttin'"'l~ing
the master retains the right to h ave pos ·ession and
control of the vessel as against the salvor s.
There is no hard and fa t rule as to the amount
of the award for salvage. The cou rts ordinarily
consider three elements: First, the enterprise and
risk of the salvors, including risk to the salving
vessel and its cargo; second, the degree of distress
from which the property is r e.·cued; and, thir d, the
skill and time inYOl>ed. In the case of a der elict
the salvor usually rerefres one-half of the property
saved. In other cases the award usually Yaries be­tween
one-half and one-eighth. (See 1'he .Amelia,
1 Cr anch, 1 ; 'l'he Allventw·e, 8 Cranch, 221, 228.)
In ome ca ·es of extraordinary merit, or where the
total amoun t is very small, more tban one-half has
been allowed. It is the policy of the law to be liberal
in order to encourage salYors and thus promote the
safety on the seas. 'l'he courts always bear in mind
the fact that the sal rnr runs the risk of getting
nothing if he fails to saYe any pr operty and reward
him a ccordingly. Steamers are allowed more for
salvage sen ·ice than are other Yessels, all things
being equal, because they a re much more rapid and
effectiYe, perform their work with less danger to the
1'essel in distress, and in many cases are the only
type of Ye ·sel which is able to save a ship in dis­tress.
Until maritime law is fully extended to all cases
arising out of air navigation it i not necessary to
go further into that interesting and broad field, as
the law of collision, towage, and salvage are the
three subj ects that are likely to be in volved in any
air navigation problem which may arise until there
is a furth er projection of maritime law into that
field. In the latter ernnt we would then be inter ested
in such subjects as bottomry, respondentia, material­men,
general average, afreightment, pilotage, mari­time
loans, wharfage, clemurrage, and other admiralty
law subj ects.
CHAPTER VII
IN TIME OF WAR
We have seen the provisions of the t 'vo Hague con­ferences
with respect to the use of projectiles from
aircraft, and a lso the proposal of Italy in 1910 to
prohibit in time of war all firin.g from and arming of
aerial ships. But it is also apparent that neither of
these principles haYe been adopted as a part of the
Jaw of nations. Indeed it may be safely stated that
there is no in ternational agreement among nations
of the world as to regulating aircraft in time of war
disassociated from the general terms of the rules of
land and naval warfare and affecting aerial warfare
as a separate and distinct unit. " No text-writer pre­tend
that there has been developed as yet any body
of law designed to regulate warfare in the air,
though certain precedents have arisen from the em­ployment
of aircraft by the two groups of belligerents
in the great war \Yhich may be said to form the be­ginnings
of customary rules." 1
·w e are thus thrown back upon an analogy to land
and naval wal'fare for any definition as to the rights,
duties, and obligations of aircraft in war. Under the
rules of land warfare the enemy popula tion is divided
in war into two general classes, known as the armed
fo rce and the peaceful population. Both classes have
distinct rights, duties, and disabilities, and no person
can belong to both classes at one and the same time.
Under the generally accepted terms of internat ional
law one can only be r ecognized as a belligerent when
commanded by a person responsible for bis subordi­nates
and having a fixed distinctive emblem r ecog­nizable
at a distance. Possession of these character­istics
gives to the belligerent the right to carry arms
openly and to conduct operation.· in accordance with
the laws and usage of war. The separation of com­batants
from noncombatant · and the prohibition of
gueriLias, bandits, and pirates a re as necessary and
important in the air as on land and sea. It would ap­pear
then that it should be just as essential for air­craft
in time of war to possess some permanent dis­tinctive
marking as it is for ships or soldiers. The
flying of a flag may not be practical, and what exactly
the mark should be is a question that discussion and
arrangement between the powers may fix somewhat
in accordance with Annex A of the International Air
Navigation Convention, but that some distinctive
mark in war time to distinguish the aircraft of a
belligerent is necessary may be conceded. Likewise,
1 The Lawless Law of Nations-Sterling E. Edmunds,
p. 385,
the crew of a military aircraft should be distinguish­able,
as ordinary soldiers are, by the wearing of a
uniform, in order to be treated, if captured, as pris­oners
of wa1·. Such a crew may have to land tempo­rarily
in the enemy's country to gain information, or
to obtain fuel or supplies, or for other reasons, and
if not wearing a uniform, or other distinguishing
mark, they very likely would be r egarded and treated
as spies. " Moreover, uniform is the sign manual
of belligerency, the guarantee that the wearer is
bound by the laws of civilized war. A belligerent
rnio-ht conceivably assume that men captured in mili­tary
aircraft, but not themselves in uniform, were not
bona fide members of that honorable trade-union of
fighting men (if I may call it so) to which war law
gran t.· combatant. rights, but chance civilians who
did not play the game, who did not observe and
slloulcl not profit by its rules. It is noteworthy that
under Article 30 of the French clecret of December 16,
1913, military aircraft must be under the orders of
a commanda nt wearing tmif01·1n, and also have a cer­tificate
establishing the military character of the air­craft.
'.l'he latter r equirement seems unnecesary in
in ternational la w."• It would appear therefore that
the same rule or law requiring a milita ry status and
the bearing of some distinctive ign that applies in
land or naYal warfare would apply with equal force
to aircraft and aircraft personnel.
ES PIONAGE L\N'I> TREASON
E;:pionage, in so far as international law is con­cerned,
is the act of spying. Under The Hague Con­vention,
Article 29, which is carried in the rules of
laud warfare of the United States, " a person can
only be considered a spy when, acting clandestinely
or on false pretense, he obtains or endeavom:s to ob­tain
information in the zone of operations of a bel­ligerent
with the intention of communicating it to
the hostile party.
" Thus soldiers not wearing a disguise, who have
penetrated into the zone of operations of the hos­tile
army for the pui·pose of obtaining information,
are not considered spies; similarly the following are
not considered spies: Soldiers and civilians carrying
out their mission openly entrusted with the delivery
of dispatches intended either for their own army or
•Aircraft in War-J. M. Spraight, p. 74.
(21)
22
for the enemy's army. To this class belong likewise
persons sent in balloons fotr the purpose of carrying
dispatches and generally of maintaining communica­tions
between different parts of au army or a terri­tory."
It will be noticed that the limitations tated
in this rule are of a negative character, and by no
means should be taken as an inhibition pro taute
to the posposition that there can be no spying f rom
the ain.'. Dissimulation of the object sought, or in
other words false pretense by the individual, is the
distiucti\c element of the act of spying. The cele­brated
General Order 100 of 1863, article 88, of the
War Department of the United States, defines a spy
as "a person who secretly, in disguise, or nuder false
pretense, seeks information with the intention of
communicating it to the enemy." Hence the facts
and conditions srurrouuding each incident must
really be the controlling facto rs. The mere fact alone
of being a balloonist "carrying di patches and gen­er
ally of maintaining communications between dif­ferent
parts ef an army or a territo ry " will not pre­rnnt
one from being considered a spy if the essential
element of deceit, disguise, and dissimulation be pres­ent.
On the other hand, being in the enemy's lines
dressed <ts a civilian or wearing an enemy's uniform
while giving rise to the presumption of being a spy,
it is possible to rebut this presumption by proof of
no in te ntion to obtain military information. The fact
that a person charged with being a spy is in the uni­form
of a State does not render it im possible for him
to be a spy in fact, since he may have gained admis­sion
into the enemy·s lines under the provisions of
the Red Cross, or through the use of some other sub­terfuge
and have taken advantage of the opportunity
afforded him for obtaining information. So unques­tionably,
if a civilian airman, allowing himself to be
accepted in that character, ob erves a belligerent's
movements aml signa ls 0[' reports them to the enemy,
or if .1 military airman coyers up his aircraft's serv­ice
marks with the same object of deception, he
would most certainly be r egardecl as a spy. Di simu·
lation or clandestine operations exists in both in­stances,
and this is the gist of the offense. In other
words, the use of balloons or ai;rcraft under this arti­cle
of The Hague Convention, or under the practice
of na tioi1 s, does not pr eclude in any sense their use
for espionage, and the persons so using them might
be treated as spies.
CHAPTER VIII
RIGHTS AND OBLIGATIONS OF BELLIGERENTS WITH RESPECT
TO ENEMY AIRCRAFT PROPERTY
Article 53 of The Hague reglement reads as fol­lows:
"An army of occupation can only take possession of
cash, funds, and realizable securities which are
strictly State property, depots of arm!', means of
transport, stores and supplies, and, generally, all mov­able
property of the State of a nature to be of use for
operations of war.
"All means employed on lane!, at sea, or in the air
for sending messages, for the carriage of persons or
things apart from cases governed from maritime law,
depots of arms, and, 00enerally, all kinds of war ma­terial
may be taken possession of, even though belong­ing
to private persons, but they must be restored and
the compensation to be paid for them shall be ar­ranged
for on the conclusion of peace."·
This r e00ulation pertains particularly to land war­fare
and rather leans toward the adopting of non­confiscation
of private p roperty by belligerents. There
is no doubt as to the rule of international law that
as to all property, both real and personal, that is of a
public character a right of confiscation exists. Such
at least was the old rule of law. About the middle of
tl1e eighteenth century Vattel maintained as to real
estate, simply the right of sequestration, during the
war, of the income deri>ed from lands and its uses
within the belligerent territor~7 belonging to subjects
of the hostile State. As to personal property fouud
in an enemy's country at the outbreak of war, for
some time mitigations of the old severity began to he
appUed. Howeyer, the doctrine of both Great Britain
and the .American courts is that war r enders con­fiscable
enemy property found within the State at
the outbreak of war, but does not, ipso facto, con­fi
scate it. In the case of Brown v. United States, 8
Cranch, 110, it was decided that by the Constitution
of the United States an act of Congress was necessary
to effect confiscation or to authorize the President to
fare there has always been r ecognized the right of
sei:rnre and destruction. This latter rule was the
subject of discussion at The Hague Conference of
1907. The nited States, Germany, .Au tria, Italy,
and other powers were in faYor of declaring the abso­lute
immunity from capture of priYate property at sea,
but as this vi ew was opposed by Great Britain,
France, Russia, Japan, and other States, the conference
a rriYed at no agreement, and therefore the old com­mon
rule of international law, which subjects an
enemy·s merchant vessels to capture, remains in force.
This was the practice in the last World War. It
may be stated that in land war pri1·ate property gen­erally-
that is, not directly useful in war-is exempt
from seizure or destruction except in the case of im­perative
military necessity. .Aircraft of all character ,
whethe1· privately owned or publicly owned, is so
easily convertible into war use that it is confidently
believed the right of sequestration, if not of seizure,
confiscation, and appropriation of the same, would be
recognized in international law. With regard to mer­chantmen
found in an enemy port at the commence­ment
of hostilities and tbo ·e which enter sucb a port
ignorant that war bas broken out, ha>ing left their
last por t of departure while peace still existed, and
tbose encountered on the high seas in the same con­dition
of ignorance and having sailed before the war
began from the last port at which they bad previously
touched, there is no definite agreement in international
law, though the practice of the United States bas
been to exempt such merchantmen from the old r ight
of confiscation, and the most rigid rule imposed upon
them was the right of detention until the encl of the
war without compensation, or to sequestration with
compensation, or in the event of destruction through
imperative necessity compensation has been made.
In the Spanish-American War the United States in
the instances mentioned allowed a reasonable amount
confiscate, whereas in Great Britain a royal proclama- of time for the enemy merchant ships to leave port,
tion was sufficient. In the late World War Congress and such seems to be the tendency of modern practice.
pa ·sed the alien property custodian law, under which However, it can not be said that under international
all alien property was taken over by the custodian, law tbe right did not exist to absolutely confiscate
and the matter of whether compensation should be merchantmen under such circumstances. .Aircraft is
made to the enemy owner was left to Congress at the so speedy and distance of such little import, that it is
termination of war. The right to seize and appro- belieYed the practice would be approved in interna­priate,
with regard to objects directly useful in war, tional law of confiscation, and certainly the right of
is undoubtedly, according to the practice of nations, a sequestration would be recognized with r egard to all
principle of intei·national law. As to maritime war- enemy aircraft found either in the belligerent country
(23)
24
at the commencement of hostilities or entering it ig­norant
that war had broken out.
In the code for aerial warfare proposed by M.
Paul Fauchille the proposition was advanced that
private aircraft of a belligerent which happens to
be within the enemy's territory at the outbreak of
hostilitie and aircraft which quitted their last port
of departure before the commencement of hostilities
and arrived within hostile territory without kno,vl­edge
of the existence of war, can only be seized under
the condition that they would be r estored at the peace
without indemnity, and any merchandise, even be­longing
to the enemy, found on board uch aircraft
is not seizable in the e1·ent " no days of grace" bad
been granted for their departure, or if such " days
of grace," having been granted, ach-antage was taken
thereof. This code also proposed that " days of
grace" can not be granted to private enemy aircraft
the construction of which shows that they are in­tended
to be transformed into war aircraft, and that
such private enemy aircraft which quitted the last port
of departure before the commencement of bostilitie ·
and are encountered in space ignorant of the existence
of war may be seized like all other private enemy
aircraft. This i. in substance the same rule as that
applicable to merchant ships, and the opinion is ad­Yanced
that it i · the practical rule of international
law as to aircraft under such circumstances. Touch­ing
the same matter, in a code proposed by Mr. J . M.
Spraight, an eminent writer on aeronautical sub­jects,
the following is laid clown:
" Private enemy aircraft may be seized by a bellig­erent,
but they must be restored at the peace without
indemnity ; or if their destruction be imperatively
demanded by the necessities of war, the compensation
to be paid shall be arranged at the peace. The above
provision applies equally to private aircraft designed
or equipped for war and to aircraft not so designed
or equipped."
We prefer the rule as stated by M. Fauchille.
.Just as ships charged with scientific or philan­thropic
missions are exempt from seizure under The
Hague Convention of 1907 relative to certain restric­tions
on the exercise of the right of capture in mari­time
war, the same exemption should be extended
to similar aircraft.
There can be scarcely any doubt that under the
conditions of international law the right of confisca­tion
would exist if private enemy aircraft navigate
in a belligerent's zone of operations on land or sea
or in the vicinity of bis troops, warships, military
aircraft, transports, military works, military or naval
establishments, stores, depots, or workshops or if
they disobey a belligerent's orders or his prescribed
signal or warning to land. l\Ir. Spraight in his code
announces this principle and it is subscribed to by
Fauchille, d'Hooghe, and Le Moyne. While there is
no general r ecognized rule of aerial warfare on the
subject, still from the precedent of action of bel­ligerents
in the late World War, and the necessities
of the case, there can be little doubt that the right
exists for a belligerent to create an absolute prohibi­tion
against p rivate enemy aircraft