International Aviation Law

A Practical Guide

Ron Bartsch

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351363952
• Edition: 2
• Topic: Technology & Engineering
• Subtopic: Aviation
• Index: Technology & Engineering

International Aviation Law: A Practical Guide explains the international context and application of the law as it applies to commercial and recreational aviation, and to the broader aviation environment. It provides a comprehensive introduction to all aspects of aviation law, from criminal law to contract law, to the legal duties and responsibility of aircrew and other aviation personnel including airport operators, air traffic controllers and aircraft engineers. Each area of the law is clearly explained in accessible language and supported with practical case studies to illustrate the application of the law within an operational aviation context. It also provides advice on how to avoid or minimize legal liability for those working in the aviation industry.

Thoroughly revised and updated throughout, this second edition adds new material on subjects such as unmanned aircraft systems, ASEAN's Single Aviation Market, common rules on compensation and assistance to passengers, and a discussion on the impact of Brexit to the UK's aviation market and legal status.

1

Introduction to International Aviation Law

INTRODUCTION

The first edition of this publication confirmed there was a significant demand by people working in, or associated with, the aviation industry for a text that provided an easily digestible overview of the structure and workings of the entire legal and regulatory framework for international aviation. Likewise, there is a similar demand from aviation training institutions and universities for a text that provides students with the requisite background and understanding of international aviation law, so they are better prepared to enter the aviation industry and readily apply this knowledge to their workplace. This second edition was necessary as it has incorporated the continual changes and developments that have occurred in the international aviation sector and how these changes have been integrated into the international regulatory framework.

Irrespective of the particular discipline being studied it is always desirable to have an understanding of the background and development of how and why the subject matter evolved. In respect to the study of international aviation law this understanding is essential. There is no other field of human endeavour or branch of law that is so harmonized as is the international aviation regulatory regime, and that has only occurred because of the close cooperation of sovereign states collaborating for national and international objectives. The following sections describe the development of the very first aviation laws and explain the motivations and objectives of governments in respect to how aviation was to be regulated. It will be further highlighted that certain aspects of this branch of law that has developed essentially remain unchanged from their humble beginnings because of the unique features and requirements of the international aviation industry.

The Very Beginning

Ever since humankind’s earliest attempts to unleash its earthly chains, people were feverishly developing rules and regulations that would attempt to curtail such fool-hardy endeavours. Long before even the Wright brothers’ historic flight at Kitty Hawk in 1903, regulations relating to flights in balloons and airships had been developed and promulgated as early as the eighteenth century.

So what is it about the activities of aviation that attract the attention of such misfeasance and malice? Surely the burden of having to submit to the laws of gravity ought to have been sufficient laws with which our aeronautical ancestors had to contend without the imposition of additional ‘man-made’ laws? But apparently not so.

Figure 1.1 The first manned balloon flight, 21 November 1783

It all began in France in the early 1780s with Joseph-Michel and Jacques-Etienne Montgolfier, sons of a wealthy paper-maker of Annonay. The brothers noticed that bags, when held above an open fire, grew lighter and lifted into the air. They discovered that hot air did not leak through paper. They experimented with balloons of paper and manufactured larger balloons capable of lifting considerable weight. Monsieur Montgolfier had forbidden his sons to ever fly in their invention, but Jacques-Etienne had already disobeyed his father and made a tethered flight to almost 400 feet. Around the same point in time, but on the other side of the Atlantic Ocean and in a hot air balloon constructed by a lawyer, Peter Carnes became the first American to venture aloft in a tethered balloon.

At the time it was widely believed that altitude sickness would restrict manned assents to within close proximity of the earth’s surface. To test this hypothesis, the Montgolfier brothers, on 19 September 1783 in Versailles, put a sheep called Montauciel – French for ‘climb to the sky’ – a duck and a rooster in a basket attached to a hot air balloon. They named the aircraft the Aerostat Réveillon. The flight, in front of Louis XVI and Marie Antoinette, lasted just eight minutes, covered two miles and reached an altitude of approximately 1,500 feet before crashing to the ground. Nevertheless, the flight proved that life was sustainable in the atmosphere well above the surface of the earth with the three recruited farmyard ‘passengers’ having survived the ordeal.

Unfortunately, this inaugural untethered balloonist ascension also resulted in the first injury on board an aircraft. During the flight, most probably during the approach and landing phase, the sheep had apparently stepped on the rooster and broke its leg. Had there been aviation lawyers at the time, it is quite conceivable that counsel for the cockerel might still be pursuing compensation. It has been suggested that this precursor ought to have warned of the dangers of single-class carriage by air well before the advent of low-cost carriers.

The first manned flight in an aircraft took place two months later from the Château de la Muette in Paris on 21 November 1783. Before a crowd of 100,000 spectators, in a paper-lined silk balloon designed by the Montgolfier brothers, scientist Jean-François Pilâtre de Rozier took off with fellow aviator Marquis d’Arlandes. The balloon soared over Paris, once tilting, belching out black smoke, and on descent nearly catching fire.

A few days later on 1 December, Professor Jacques Alexandre Charles – the French scientist of Charles’ Law fame – stayed aloft for almost two hours in his hydrogen-filled balloon. Professor Charles, accompanied by Nicolas-Louis Robert as co-pilot of the 380-cubic-metre balloon, took off from the Jardin des Tuileries in Paris and travelled a distance of 27 miles (36 kilometres) before landing in the small town of Nesles-la-Vallée. This time a crowd of over 400,000 Parisians and others assembled to witness the spectacle. Among them was Benjamin Franklin, then the US Ambassador to France. Someone in the crowd asked of the Ambassador ‘What’s the use of a balloon?’, to which Franklin immediately replied: ‘What’s the use of a newborn baby?’ And this was certainly the birth of aviation. Even today in France, hot air balloons are still called Montgolfières and hydrogen balloons are referred to as Charlières.

Less than four months after this historic feat, the first aerial regulation was promulgated on 23 April 1784. The Paris police, in their apparent wisdom, introduced a law forbidding balloons to fly without a special licence. The inextricable link between aviation activities and regulatory standards had been established. This symbiotic relationship would continue and become the basis for all future aviation legislation.

Aviation law as we know it today has developed to the extent it has not due to any absence of reason but rather because of particular, yet peculiar, characteristics of travel by air. Unlike any other mode of transportation and, indeed, unlike any facet of human endeavour, travel by air challenges and defies all boundaries and frontiers – be it political, geographic or celestial. As expressed so eloquently by Banner (2008: 28–9), ‘by its immensity and its fluidity the atmospheric layer resists all possession’.

To fully understand aviation law as an autonomous disciple, we must consider it within its broader international context. In short we must study an international aviation law. Aviation is something very different, something very exciting and indeed something very much worthy of regulation.

How can this be? Why the need for regulation? Is it that I the author – the pilot turned lawyer and safety regulator – have now betrayed the reader? Have I been brainwashed and indoctrinated by the evil forces of aviation regulation to the extent that it has clouded my vision of the noble and majestic art of flight? Or is there perhaps – just perhaps – some element of truth in what I suggest? Is it conceivable that the regulation of aviation is both necessary and desirable? So here beginneth the lesson – International Aviation Law 101.

Why Study International Aviation Law?

Many publications on the subject of aviation law often approach the topic of international aviation law almost as an afterthought – if it is addressed at all. Such works typically begin by explaining the application of aviation law at the national level and within the legal system and jurisdiction of the particular country to which the publication is targeted. This book takes a somewhat different approach. It is strongly asserted that because of the unique characteristics of aviation activities, any meaningful appreciation of the regulatory regime that ‘controls’ the aviation industry can only be achieved by first considering aviation law within its broader, international context – that is, by studying international aviation law.

The adoption and proliferation of international aviation treaties such as the Chicago Convention is quite unique to the aviation industry. This particular treaty not only influences all aviation activities – that is, international, domestic and, to an increasing degree, military – but also, to a large and increasing extent, dictates all operational, technical, safety and security standards within the industry. We should study international aviation law not just to gain an insight into aviation in its international environment, but rather to provide a clearer and more comprehensive understanding of the legal basis upon which all aviation law is founded.

As an industry, what makes aviation somewhat unique can be explained in terms of its development and how it is regulated. These two aspects of aviation, although quite distinct, are in fact highly interrelated and to a significant extent account for why there is a greater degree of international harmonization of aviation legislation than there is with any other industry.

At its most fundamental level, the proliferation of aviation regulation has evolved from developments of the law directed towards the protection of proprietary rights of both the individual and the state. At the personal level, the law seeks to protect the property rights of the individual landowner. At the national level the sovereignty of the airspace above a state and its territorial waters is of utmost importance to the independence and security of that state. By way of illustration the current proliferation of drones in society, and the fact that both domestic and international regulations have not been able to adequately address the protection of proprietary rights, highlights the importance of this issue. But let us first begin in considering the proprietary rights of the individual.

Individual Proprietary Rights

The concept that an aircraft in flight may operate over a person’s land without infringing that person’s property rights is a unique feature of aviation law that has also developed with the expansion of aerial operations. Traditionally, property law defined a person’s land or real property as extending from a line drawn around the boundary of the land to the centre of the earth and to the extremities of the heavens. This was derived from customary law and based on an old Roman maxim cujus est solum ejus est usque ad coelum, meaning ‘whose is the soil, his is also that which is up to the sky’. If one infringed these proprietary rights, an action for trespass or nuisance could be brought.

There are early recorded instances involving ballooning accidents in which damage to personal property occurred. One particular accident occurred in France on 12 May 1903, while attempting to land in a suburban Parisian street. Upon impact with the ground, the balloon suddenly burst into flames. The ignited gas entered a window of a nearby building, with the resulting fire seriously injuring eight occupants. So, from the very beginning of manned flight, it was manifestly obvious that the law needed to develop – and to develop quickly – in order to protect the rights of innocent victims of aviation-related accidents.

Guille v Swan, 19 Johns 381 (NY Sup Ct, 1822), Supreme Court of New York

Mr Guille, the defendant balloonist, landed his balloon in the vicinity of the plaintiff Mr Swan’s garden. When Guille descended, he was in a dangerous situation and asked for assistance from a person who was working in Swan’s field. The spectacle attracted the attention of hundreds of local residents who, in all the excitement, broke through Swan’s fences and spoiled his vegetables and flowers. The damage caused to the balloon was minimal, totalling approximately $15, whereas the damage resulting from the stampede of people was in the order of $90. The court found Guille liable for all the damages that occurred on the premise as he should have anticipated that his descent and landing would most likely have attracted such a crowd.

Another more contemporary example in which the adverse causal effects of aircraft operations have played a decisive role was with an American balloon called the Double Eagle. This balloon, the first to cross the Atlantic Ocean non-stop, arrived in France on 15 August 1978. When it landed, thousands of enthusiastic fans ran towards it, damaging a wheat field. The French farmer lodged a claim for $1,000 with his insurance company, but the company refused to pay. However, the farmer eventually did receive his $1,000 from the American Consul-General in France, which avoided legal proceedings.

The question that needs to be asked is to what extent does the law protect the proprietary rights of individuals with respect to aircraft operations? The English courts, and for that matter most common law countries, follow the general principle enunciated in the following case.

Baron Bernstein of Leigh v Skyviews and General Ltd [1978] 1 QB 479, Court of Queen’s Bench

The defendant company took a single aerial photograph from a plane while overflying the plaintiff’s country residence. In bringing an action for trespass, the plaintiff claimed, as owner of the land and airspace above, that he had a right to exclude any entry into that airspace. The court dismissed the case and held that the landowner’s rights did not extend to an unlimited height. Griffith J stated that it was necessary to balance the rights of an owner to enjoy land against the rights of the general public to take advantage of all that ‘science now offers in the use of airspace’. The rights of an owner in the airspace above his land are restricted to such height as is necessary for the ‘ordinary use and enjoyment of his land and the structures upon it’. The landowner has no greater rights than any other member of the public.

Territorial Sovereignty of States

At the national or domestic level, the proprietary rights that are protected under international aviation law are those relating to issues of territorial sovereignty of the state. In international aviation the concept of sovereignty is the keystone upon which virtually all aviation law is founded. Long even before the Wright brothers’ historic flight in 1903, tensions between nations regarding issues of sovereignty had emerged because of transnational sorties of balloons.

Somewhat ironically, it was the First World War that brought about a realization of the potential importance of aviation in terms of its economic and social benefits. But also with the War came a sombre awakening of the dangers to states and their citizens of its use in hostile hands. This was not the first aviation-related event to raise the issue of sovereignty in respect to aircraft operations. Later in this chapter we review sovereignty issues relating to ballooning operations that date back to the late nineteenth century between France and Germany.

The law that has developed in relation to each of these two concepts of ownership – that is, personal property and state sovereignty – is all part and parcel of what has been termed international aviation law. In Chapter 2 we will consider the way in which international aviation law is defined and how it may be classified. We shall see how international aviation law has both a public and private component, as well as drawing from the domestic aviation law of individual states.

Those readers who are aviation practitioners will be well aware and familiar with the aviation rules and regulations that relate to their day-to-day duties and responsibilities. What will become apparent in reading this book is the extent to which the local or domestic aviation law of individual nations has derived from treaties and other instruments of international law. Moreover, since aviation, by its very nature, is to a large extent international, its optimal benefits cannot be realized if it is confined to national boundaries. Therefore, it is advantageous for aviation practitioners first to consider the law relating to aviation in its broader international context to better understand its application under the domestic aviation legal regime.

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