Foundations of Aviation Law

Michael W. Pearson, Daniel S. Riley

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317133711
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

Foundations of Aviation Law is an easy-reading general primer into the often complex world of aviation law, written for aviation students as well as legal professionals who are looking for broad-based, introductory coverage of the subject. The text begins with basic legal concepts that build a foundation for in-depth exploration of aviation-specific subject matter. This allows the instructor to utilize one text in situations where a basic foundation in law is required before moving into aviation law specifics. It includes citations to relevant and key court decisions that provide a solid underpinning for the student of aviation law. The book is divided into six general categories, with fifteen relevant sub-chapters, allowing focused learning into particular areas of law. Throughout it features chapter summaries, key word indices and review questions. The design easily allows instructors to develop syllabi that spotlight the specific area of law that they are interested in exploring, providing comprehensive coverage of both traditional introductory legal concepts and topical aviation subject matter.

PART I

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Fundamental Principles of Law

1
Jurisprudence and US Legal History

In America, the law is King!

Thomas Paine, 1776

CHAPTER OBJECTIVES

After reading this introductory chapter, you should:

1. have a basic understanding of the history of the US legal system;

2. understand the difference between the Constitution, common law, and statutes;

3. have a basic understanding of the various categories and types of law;

4. have a fundamental understanding of various international legal systems.

INTRODUCTION

Aviation law is a specialized area of law that concerns all aspects of flight and associated concerns. It often overlaps with other areas of law, including admiralty and international law. Commercial aspects of aviation also fall under the category of aviation law. In the US, the Federal Aviation Administration (FAA) regulates all aspects of flight. While states cannot regulate aviation matters covered specifically by federal law, they often pass laws that fill in the gaps. In the international arena the International Civil Aviation Organization (ICAO), which is part of the United Nations (UN), regulates aviation matters. As we will explore throughout this book, aviation law is often complex in that the various bodies of law pertaining to aviation are interstitial and sometimes conflict.

While this text is focused on aviation, it is written from the general to the specific. The study of the law necessarily requires that students have a basic understanding of the history of the subject matter. As a fundamental precept and for the purposes of this text, we define law as the legal system in which we operate. A thorough and comprehensive thesis of jurisprudence, or the philosophy of the law, and the history of the US legal system is well beyond the scope of this text. The goal of this chapter is to give the student a rudimentary historical framework and context in order to better understand the modern legal system. We start with an explanation of law and jurisprudence and will then move forward into a general discussion of some of the key historical concepts, principles, and events that have shaped the current legal landscape. We follow this with a discussion of international legal systems and a brief introduction to aviation law. It is our hope that you develop an appreciation for the fundamental role that law plays in our society. As you progress through the chapters, you will find that, whether you previously realized it or not, you make decisions having legal impacts and consequences on a daily basis. In all likelihood, most of your involvement and interaction with the law has been on a subconscious level. The understanding of your legal rights and obligations is a key step in being able to proficiently navigate personal and professional issues that will challenge you throughout your life.

Jurisprudence

The term “jurisprudence” originates from the Latin word juris prudentia, which means “the study, knowledge, or science of law.” Jurisprudence is the theory and philosophy of law. There are many different theories and philosophies of the law. In the US the study of jurisprudence involves three main areas: natural law, analytical jurisprudence, and normative jurisprudence. Natural law involves the concept that there are immutable principles of nature that govern individuals and society that should be the foundation for our legal system. Analytic jurisprudence seeks to answer questions germane to legal philosophy like “What is the purpose of law?” Normative jurisprudence looks at the issue from a different, more theoretical view and asks what the law ought to be. Different cultures have different and disparate views of jurisprudence and the philosophy of the law. Jurisprudence is thinking about law in general. How law has evolved, implications for the society we live in, and the impact of the law is left to jurisprudence. As this text is focused on application versus theory, we begin our study of the law by exploring our legal legacy.

LEGAL HISTORY: OUR HERITAGE

Compared to most, the US is a relatively new country. While our legal heritage flows from England, it has historic influences from many other aged legal systems and cultures. The legacy of early settlers including the Spanish, French, Swedes and Dutch all shaped and formed US law to varying extents.

While different cultures added to our current law, the largest influence has certainly been England and English common law. As such, our law is very different from other forms of European law that base their systems on statutes. Common law refers to judge-made law. Thus, Anglo-Saxon English law was originally based on the mores, thoughts, and societal values of the English population. Originally there were no lawyers or judges by trade. The original “judges” were called witans and were actually ministers or counselors. The witans would meet and listen to cases in the Witenagemot. The term “Witenagemot” was derived by combining witan with the old English term “gemot,” meaning meeting or assembly. The Witenagemot possessed the equivalent of modern-day judicial as well as legislative functions and power.

Over time, judges would determine cases by applying the laws and customs to specific factual situations. These decisions were written down, used, and further developed by other judges who would apply the law found in prior decisions to the case at hand. The judges relied on these earlier decisions, or “precedent,” in refining and applying the common law. Basing decisions on such prior precedent results in law that evolves slowly, yet is able to vary with societal and moral change. In addition, the use of precedent in judicial decision making also provides the necessary stability and clarity to the law. Judges have the power to disregard precedent and over-rule a prior case if the application of precedent to a factual situation would result in manifest unjustness. However, the concept of stare decisis provides a governor on rogue abuse of judicial power. As stated in In re Osborne:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere – “to stand by and adhere to decisions and not disturb what is settled.”¹

In addition to various common law courts, called Common Pleas, King’s or Queen’s Bench, and Exchequer, the English had Courts of Chancellery. These courts, which were administered by royal officials called chancellors, were actually clergymen, who did not follow common law doctrines. These courts relied heavily on ecclesiastical, or church-made, law. Chancellors, through chancery courts and principles called “equity,” had the ability to ignore unfair laws or rules. In the Court of Chancellery you could win your case regardless of legal formalities if the chancellor hearing your case felt that justice was on your side. While the common law defined rights and obligations, equity had the power to compel performance. Common law remedies revolved around monetary damages while equitable remedies involved power to compel individuals to refrain from doing something they were entitled to, or to require them to do something they didn’t want to do. Such power to compel was enforced by contempt orders where a party could be jailed if they failed to take action as ordered by the court.

The English system, with its various courts, was specialized and intricate. Jurisdiction often overlapped. Other English courts vied with equity and common law courts. Royal courts, merchant courts, and admiralty courts all had different areas of jurisdiction and functions. Courts of equity and common law merged in the nineteenth century. The various principles and doctrines of the common law and equity are now applied in a single court. As the colonists’ heritage was largely English, the common law, equity, and various English court doctrines provided a foundation for a rising nation.

English law was not strictly founded on judge-made law. Much law came from Parliament, as well as royalty, through the king. Prior to the eleventh century, the law was largely unwritten. The Norman invasion in 1066 influenced and shaped the English legal system due to the infusion of the code-based Roman civil law that was introduced by the Normans. The Normans replaced the Witenagemot with the King’s Court called the Curia Regis. The Curia Regis provided the seeds for a central court system and the subsequent law became interstitial in that the common law composed of the customs of the people blended with the Roman civil law system brought over by the Normans. Some such statutory law had a weighty effect on the colonies. The Magna Carta, also called the Great Charter of Freedoms, was originally issued in 1215. King John was improperly governing and over-taxing the country, so influential barons created a document to restrict his powers. It basically required the King to admit that the law could bind the monarchy. It specifically protected certain rights of the King’s subjects and allowed a process to appeal unlawful imprisonment. The Magna Carta influenced the development of the common law and led to the principle of constitutional law that is the foundation of the US legal system.

Early Times: The Colonial Period

Courts as well as judges came to America with the colonists. Documentation regarding this earliest period of American law consists of remnants. Although a few early reports of American common law (referred to by lawyers as “case law”) exist, they did not become readily available until after the revolutionary war. Colonial charters, issued by the British government, outlined the rights of the colonists.

The earliest legal systems in the colonies closely resembled martial law. There were no refined legal systems as we know of them today. Colonial life was difficult at best and sophisticated legal systems, like those in England, were simply not in existence. While the British colonized along the eastern seaboard, the distance and lack of any real colonial policy ensured that early English control was marginal. The distance also ensured that the leaders of the local colony had ultimate power to make, as well as enforce, the law. As the colonies were geographically isolated, each system grew independently and had its own idiosyncrasies. The religious and political ideologies of the various colonies had a marked effect on the various legal systems. Colonial law was largely composed of local custom and practice blended with bits and pieces of the English system. As the early settlements more or less developed their own legal systems in segregation from other colonies, the various systems were usually a combination of what the settlers recalled about English common law, local custom, political, and religious beliefs. Therefore, early colonial law was localized, was often not written down, and was certainly a major departure from the structure, process, and sophistication of the mature and fully developed English legal system.

In the mid-eighteenth century, the British began a series of actions that angered a large percentage of the colonial population. At the time that the Revolution started, there were 26 British colonies. Britain adopted many laws that were burdensome to the colonists, closed Boston’s port, reorganized colonial governments, and sought to tax the colonists. These actions and events greatly angered a large number of the colonists. This anger gradually increased and eventually led to the American Revolution.

The Revolution

While the fighting started in Lexington, Massachusetts in April 1775, the colonists didn’t formally declare themselves independent of England until 1776. With independence came the daunting task of establishing a new government. The first attempt resulted in the Articles of Confederation. Adopted in 1781, the Articles of Confederation was the original governing constitution of the original 13 states. It had the effect of legally uniting the states into the “United States of America” with a confederation form of government. Under the Articles, the states individually retained much autonomy and sovereignty over all governmental functions that were not explicitly delegated to the new national government.

Fairly quickly, a powerful political group known as the “Federalists” determined that the Articles were impotent and that the new national government lacked any real authority. Dissatisfaction also occurred due to the perceived imbalance between the large and small states regarding the legislative process and the division of power. Due to this discontent, the US Constitution eventually replaced the Articles. The document took years to craft and was eventually adopted in 1787 by the Constitutional Convention setting in Philadelphia, Pennsylvania. When the ninth state (New Hampshire) ratified the Constitution, it became the governing document as only nine of the original 13 states were required to formally adopt it for it to be given effect. The Constitution was later ratified by conventions in each US state. As we will explore in Chapter 2, the Constitution is the foundation for the US legal system and changed the early government from a loose confederation to a strong federation. It is a remarkable document framed by those seeking to establish a form of government, which was up to that point unheard of. The Constitution has three main Articles that establish our tripartite, or three-“branch,” form of government. Article 1 of the Constitution deals exclusively with the powers conferred and restrictions placed upon our national legislature. Article 2 enumerates the powers possessed by the executive branch (the President). Article 3, as well as the subsequently added first 10 Amendments to the Constitution known as the Bill of Rights, creates an independent judiciary where a person could seek a remedy for perceived wrongs from an unbiased tribunal. The framers of the Constitution specifically wanted an independent judicial system to ensure individual rights against tyranny. The new government was to be one of laws and rules that applied to all citizens equally, regardless of heritage or position.

An Emerging Nation

The separation caused by the revolutionary war did not sever the legal heritage. The states incorporated, more-or-less, the complete body of English common law existing at the time of the parting. Blackstone’s seminal Commentaries on the Laws of England acted as a guide and sourcebook for an emerging nation that had few published legal texts or primers. As outlined above, and out of necessity and pragmatics, colonial law was a bare-bones version of the sophisticated British legal system. In addition, the colonists added a few unique institutions unknown to the British monarchy. One shameful institution was the establishment of slavery. While the Portuguese and Spanish enslaved people in the sixteenth century in order to operate the sugar industry, slavery was unheard of in England. There is some evidence that slavery started in the early 1600s in the colonies. While slavery is typically associated with black men and women transported from Africa, colonists also enslaved American Indians. In addition, there were many white “indentured servants” who were enslaved for a temporary period of time before they were able to achieve total freedom. The slave population was very important to the economic growth of our country and became very significant in the southern colonies. Therefore, a body of law developed that was specific to slavery. While the institution of slavery is abhorrent and an embarrassment to the US, it played an important role in the development of the country.

Another institution, peculiar to the colonies, was ownership of land. In England land was held, generation after generation, by select families. Real property was held by a very small fraction of the population – certainly less than two percent. The oldest son of the family inherited land. The colonists, in contrast, were able to own and obtain large tracts of land. While the ownership of such land could certainly pass through inheritance, it was also often sold betw...