CHAPTER VIII IMPERATIVE NEED FOR IMMEDIATE FEDERAL CONTROL OF THE AIR; ACTION URGED BY STATES, LEADING AERONAUTICAL, LEGAL AND DEFENSE BODIES; ANALYSIS OF INTERNATIONAL AERIAL CONVENTION T HE progress of American aeronautics was seriously delayed in 1920 through the lack of competent national regulation. The fact that the International Aerial Convention was linked up with purely political problems growing out of the war, contributed to the failure to bring the subject before Congress. The aircraft industry, abruptly divorced from military activity, struggled to establish itself in commerce. Flying utilized in warfare, when the national need overrides all else, is one thing; the art applied to peace, when profit and loss and public safety govern, is quite another. Modern business development depends largely upon credit and insurance, while permanent success in the operation of any transportation enterprise can be assured only if the public is protected against injury or property damage that may be caused by the use of unfit equipment or unskilled crews, or both. America can not hope to build up a great aerial reserve for purposes of national defense until proper legislation assures capital that it is entering a business project instead of a romantic adventure and rates of insurance are likely to remain unsatisfactory so long as no competent Federal agency exists to determine the airworthiness of craft or the competency of pilots. That there were in operation in the United States in 1920 nearly 100 aerial transport companies is evidence of the efforts which the industry has made to maintain constructive supervision. But this can only be a temporary expedient, which should be promptly followed by suitable legislation. Therefore the Manufacturers Aircraft Association has co-operated with the American Bar Association, the Aero Club of America, the National Aircraft Underwriters Association, and other bodies in urging immediate relief. The American Legion, supplementing its declaration in favor of a separate department of the Air, for reasons of national defense, also urged, at its convention in September, in Cleveland, the prompt consideration of aerial legislation by Congress. In the absence of Federal control, demands were made that states or municipalities should act. But tempered thought, in such instances as that of New York, led the legislatures not only to refrain from confusing the situation with state laws, but actually to memorialize Congress for prompt relief. The aeronautical organizations, too, were active, and similar resolutions were adopted in January in Chicago by the Mississippi Valley Aviation Clubs Association, and by a conference at the Hamilton Club of Chicago; and in April in San Francisco, by the Pacific Aeronautical Association.1 AMERICAN BAR ASSOCIATION ACTS At a conference of State and Local Bar Associations of America, held in August, 1919, in Boston, in anticipation of the meeting of the American Bar Association, a resolution was adopted declaring it to be the sense of the conference that jurisdiction of aeronautics and aerography lay properly in admiralty, with limited reservations in favor of the common law. A committee consisting of the following was formed: William Velpeau Rooker, Indianapolis, Ind. John P. Briscoe, Prince Frederick, Md. R. E. L. Saner, Dallas, Texas. Mr. Rooker at once undertook extensive circularization of all interests connected with aeronautics, and as a result, on July 1, 1920, he reported: "It appears that throughout the United States there is intense interest in the subject we have in hand. This interest has been evidenced in many cases by the appointment of municipal and other commissions to investigate and report conclusions in respect of aviation and aerography as affecting jurisprudence and the political rights of people and communities. In many instances expression of the conclusions of these investigators has been made apparent in municipal ordinances and regulations affecting aerial navigation and prohibiting the use of the air over cities for navigation. In some of the states statutory provisions are in effect. These statutory provisions generally pertain to the police regulation of aviation, and attempt to save the political rights of the states. 66 The manufacturers of air craft are pursuing investigations along lines which embrace not only the jurisprudence of aviation, but also fiscal and mechanical matters. "The Federal Government is active through various agencies in its endeavor to ascertain and solve numerous problems affecting aviation and aerography, including the matter of jurisprudence. 1 See Chronology and Appendix. "Universities are working on the subject through their geometricians, astronomers, physicists, economists and other agencies. “A survey of the situation proves that aeronautics is a fact now in our presence, and one which commands the most livelv interest of society. . With reference to the International Aerial Convention, Mr. Rooker wrote: "If the United States shall become signatory to the convention it will become the foundation of a body of law governing aerial activity in this country." Mr. Rooker prosecuted a work, the value of which to the nation and the art is difficult to adequately estimate. His was a preliminary survey which presents the subject in its broader aspects and enables those who wish to study our aerial legislative needs to approach the task intelligently. Mr. Rooker's committee informally reported at the American Bar Association meeting in St. Louis August 20. The committee, he stated, was of "the opinion that the jurisprudence of aeronautics, aerography and aerophony were in admiralty and therefore within the powers of the Federal Government, as distinguished from the states." INTERNATIONAL AERIAL CONVENTION In the Appendix will be found the complete text of the International Aerial Convention. It is thought advisable, however, to summarize the Convention in this chapter so as to make possible a clearer interpretation of the document and the steps which preceded it. It is conceded by those competent to judge that the International Aerial Convention should become the foundation of our national code of the air. The convention will become effective, insofar as we are concerned, when Congress ratifies the signatures of the American representatives. This ratification may be made subject to an amendment to the Convention in the spirit of the American reservations. Ratification of the Convention, or the adoption of a national code of the air will make necessary the creation of a Federal Government Agency competent to promulgate and administer the "rules of the air." The principal efforts toward the drafting and adoption of an international code of the air, prior to the war, were made between 1910 and 1913 by the International Aeronautical Federation and by the International Juridical Association, when these authoritative bodies elaborated at their annual congresses a set of regulations which should apply to the control of international air navigation. However, no general understanding was brought about until after the great war. The Peace Conference created an Aeronautical Commission which was directed to draft a Convention for the Regulation of Air Navigation to which all the twenty-seven Allied and Associated Powers were to become signatories. October 13, 1919, delegates representing sixteen of the Allied and Associated Powers signed the original draft of the Convention for the Regulation of Air Navigation. These powers are:- Belgium, Bolivia, Brazil, the British Empire, China, Cuba, Czecho-Slovakia, Ecuador, France, Italy, Panama, Poland, Portugal, Roumania, Siam and Uruguay, Several Powers - among them the United States and Japan — having made reservations to certain provisions of the Convention, the latter was amended to insure an agreed text. The amended Convention was signed on May 31, 1920, by the eleven Allied and Associated Powers which had not previously become parties to it, the United States signing with certain reservations which will be dealt with below. The other signatory states comprise:- Greece, Guatemala, Hayti, Hedjaz, Honduras, Japan, Liberia, Nicaragua, Peru and the Serb-Croat-Slovene State. PRINCIPAL PROVISIONS OF THE CONVENTION The Convention, as amended, consists of nine chapters comprising forty-three articles which constitute the fundamental text of the document, and of eight annexes, which afford a technical interpretation to some of the provisions of the Convention. While the provisions of the Annexes may be modified by the International Commission for Air Navigation which the Convention provides for under the direction of the League of Nations, any modification of the articles of the Convention can be proposed for adoption by the Commission for Air Navigation only if it has been approved by at least two-thirds of the signatory Powers. GENERAL PRINCIPLES Chapter I, (Articles 1-4) dealing with general principles, recognizes that each country has absolute sovereignty over the air space above its territory and its dependencies, and the territorial waters of both. Aircraft of the contracting States are granted freedom of passage over the national territory provided the provisions of the Convention are observed. But if a State prohibits aircraft of the other contracting States from flying over certain areas of its territory, this prohibition must equally apply to its own private aircraft. The United States objected to this latter provision, making the following reservations: "The United States expressly reserves, with regard to Article 3, the right to permit its private aircraft to fly over areas over which private aircraft of other contracting States may be forbidden to fly by the laws of the United States, any provision of said Article 3 to the contrary notwithstanding." NATIONALITY OF AIRCRAFT Chapter II, including Articles 5 to 10, deals with the nationality of aircraft. Article 5 provides that 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. This article elicited objections from several States, because its provisions would actually bar aerial intercourse between contracting and non-contracting States. This provision was made to prevent aerial traffic with the Central Powers until the latter would be permitted to adhere to the Convention, and also to force those States which had remained neutral during the Great War to adhere to the Convention. 66 The United States and Canada both objected to this article on the ground that it would hamper air navigation between the countries in the Western Hemisphere, several of which are not parties to the Convention. Hence in its reservation the United States reserves the right to enter into special treaties, conventions, and agreements regarding air navigation with the Dominion of Canada, and (or) any country in the Western Hemisphere if such Dominion and (or) country be not a party to this Convention." The Canadian reservation to this article, aiming at a reciprocity arrangement with the United States, reads: 66 Although the United States may not be a party to the Convention, Canada may make arrangements with the United States permitting the flying of aircraft which, by terms of the Convention, might be legally registered.” The Dominion of Canada also objected to the compulsory registration of kites and captive balloons which is implied by their coming under the generic term “aircraft.” Several neutral countries of Europe objected to Article 5 on the ground that it would compel them to prevent the flight over their territories of aircraft of the late enemy countries until such time as the latter also became parties to the Convention. In the case of the Allies the same difficulty would not arise because the Peace Treaties grant them the right of flying over the late enemy countries without reciprocity. In order to meet this objective of neutral countries, a Protocol to |