II. LEGAL PROBLEMS RELATING TO CIVIL AIR NAVIGATION (a) Extract from the report of the committee on the law of aeronautics of the American Bar Association. NOTE. The following is an extract from the report of the committee on the law of aeronautics of the American Bar Association, adopted by the association at its annual meeting at San Francisco, Calif., on August 9, 10, and 11, 1922 (see 47 American Bar Association Reports, 413-415): REPORT OF THE COMMITTEE ON THE LAW OF AERONAUTICS To the American Bar Association: The committee on the law of aeronautics reports as follows: 2. That until Congress has enacted legislation fostering and regulating aeronautics and until the Supreme Court has determined the extent of Federal control over aeronautics no further consideration be given to the question of a constitutional amendment to vest exclusive jurisdiction over aeronautics in the Federal Government. 3. That the members of the American Bar Association be urged to cooperate with the national authorities and with the local authorities in their respective States to the end that governmental action may result which will tend to the development of aeronautics in the United States, thereby contributing to our national prosperity and strengthening our national defense. (b) Extract from the report of the committee on the unform aviation act of the Conference of Commissioners on Uniform State Laws. NOTE. The following is an extract from the report of the committee on the uniform aviation act of the Conference of Commissioners on Uniform State Laws, presented to the conference at its annual meeting at San Francisco, Calif., August 2-8, 1922 (see Handbook of the National Conference of Commissioners on Uniform State Laws and proceedings of the thirty-second annual meeting, pp. 319–321) : At the conclusion of the public hearings, the two committees (the committee on the law of aeronautics of the American Bar Associa tion and the committee on a uniform aviation act of the Conference of Commissioners on Uniform State Laws) went into conference, and agreed that Federal legislation was desirable, that it should be enacted as soon as possible, and that the committees should cooperate for the purpose of aiding in drafting and passing such legislation; and it was agreed that it was undesirable to bring forward a constitutional amendment to give to the Federal Government exclusive authority over aviation until the initial Federal legislation had been enacted, because such an amendment would bring about delay and its necessity was doubtful; and it was agreed that some State legislation on the subject of regulation of aeronautics would be necessary, even if the Federal Government took control of all licensing and registration of craft, and the sentiment seemed to be that the committee of the Conference on Uniform State Laws should endeavor to perfect its bill and present it to the conference in August, 1922, for such action as the conference should deem desirable. In Railroad Commission of Wisconsin v. The Chicago, B. & Q. R. Co. (42 Sup. Ct. Rep. 232), decided February 27, 1922, and State of New York v. the United States (42 Sup. Ct. Rep. 239), decided February 27, 1922, the United States Supreme Court went very far in holding that the Interstate Commerce Commission might regulate intrastate railroad fares. They said that if the intrastate fares were so low as to discriminate against interstate commerce and endanger the financial condition of the railroad as an interstate carrier, the Interstate Commerce Commission could increase the intrastate rates. The following significant sentence appears on the first-named case: Commerce is a unit and does not regard State lines, and while under the Constitution, interstate and intrastate commerce are ordinarily subject to regulation by different sovereignties, yet when they are so mingled together that the supreme authority, the Nation, can not exercise complete effective control over interstate commerce without incidental regulation of intrastate commerce, such incidental regulation is not an invasion of State authority or a violation of the proviso. In the opinion of the committee the Supreme Court has gone so far in allowing the regulation of intrastate commerce by a Federal agency that there is no doubt that this court would support a Federal statute giving the Federal Government exclusive power to register aircraft, license pilots, and establish rules for aerial navigation. If an intrastate aircraft is not inspected and not registered, its flight may endanger the safety of aircraft engaged in interstate commerce; if a pilot engaged in intrastate flight alone is unskilled and unlicensed, his conduct may well endanger the safety of pilots engaged exclusively in interstate flight; and if the rules for intrastate aerial navigation are different from those applying to interstate flight, confusion and danger to interstate flight may well ensue. While the committee, therefore, still believes, as it stated last year, that constitutionally, intrastate flight should be left to the regulation of the States, it has come to the conclusion that the Supreme Court of the United States will almost certainly sustain an all-inclusive Federal act for the regulation of aviation, and that, therefore, it is wise to omit the sections of the uniform State act which have to do with regulation of aviation and licensing of aeronauts and aircraft. Nearly everyone agrees that Federal control of licensing and Federal regulations are desirable ends, in the interest of uniformity, if they can be accomplished constitutionally. These recent decisions seem to remove the doubts on the subject of constitutionality. It seems better, therefore, to abandon the field of rules and regulations and licensing of craft and pilots to the Federal Government, and confine the State act to the elementary principles concerning the lawfulness of flight, responsibility for damages, and similar matters. If an all-inclusive Federal bill should later be passed and held unconstitutional as to intrastate flight, a subsequent supplementary State act could easily be drafted. * * Respectfully submitted. NELLIS E. CORTHELL. A. T. STOVALL. GEORGE G. BOGERT, Chairman. (c) Extract from an address of William P. MacCracken, jr., to the First National Air Institute NOTE. The following is an extract from an address made by William P. MacCracken, jr., Esq., of Chicago, chairman of the committee on the law of aeronautics of the American Bar Association, at the First National Air Institute at Detroit, Mich., October 11, 1922: BAR ASSOCIATION URGES LAW As previously noted a constitutional amendment vesting in the Federal Government power to regulate the use for air travel of all space over the United States has been suggested. However, the American Bar Association at its meeting in August, 1922, adopted a recommendation That until Congress has enacted legislation fostering and regulating aeronautics and until the Supreme Court has determined the extent of Federal control over aeronautics no further consideration be given to the question of a constitutional amendment to vest exclusive jurisdiction over aeronautics in the Federal Government. The bills which have been introduced in Congress have been drafted under one or more of the following clauses of the Federal Constitition: The interstate-commerce clause, the treaty-making clause, the admiralty clause, the post-roads clause, the national-defense clause, and the clause granting jurisdiction over limited areas acquired or purchased from the various States. While all of these clauses may be helpful in reaching the conclusion that Congress may assume for all practical purposes exclusive jurisdiction over the regulation of aeronautics, undoubtedly, the greatest power comes from the grant contained in the interstate-commerce clause and the treaty-making clause. To exercise the latter requires the ratification of a treaty with some foreign country which would make necessary Federal legislation on the subjest of intrastate aerial navigation. While such a treaty will undoubtedly be ratified in the course of time, there is no such treaty now in existence and therefore the most logical procedure would be the exercise of the power under the interstate-commerce clause. CONGRESS EMPOWERED TO REGULATE In the Shreveport case, 234 U. S. 342, the United States Supreme Court, in discussing the power under the interstate-commerce clause, said: Congress is empowered to regulate—that is, to provide the law for the government of interstate commerce; to enact "all appropriate legislation" for its protection and advancement" (The Daniel Ball, 10 Wall., 557, 564); to adopt measures "to promote its growth and insure its safety" (County of Mobile v. Kimball, 102 Ú. S. 691, 696, 697); “to foster, protect, control, and restrain (Second Employers' Liability Cases, 223 U. S. 1, 47, 53, 54). Its authority, extending to these interstate carriers as instruments of interstate commerce, necessarily embraces the right to control their operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance. As it is competent for Congress to legislate to these ends, unquestionably it may seek their attainment by requiring that the agencies of interstate commerce shall not be used in such manner as to cripple, retard, or destroy it. The fact that carriers are instruments of intrastate commerce, as well as of the interstate commerce, does not derogate from the complete and paramount authority of Congress over the latter, or preclude the Federal power from being exerted to prevent the intrastate operations of such carriers from being made a means of injury to that which has been confided to Federal care. Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority, and the State, and not the Nation, would be supreme within the national field. In the case of R. R. Comm. of Wis. v. C., B. & Q. R. Co. (42 Sup. Ct. Rep. 232, 237), the court sustained an order of the Interstate Commerce Commission which was much wider than the order in the Shreveport case. Chief Justice Taft in the course of his opinion said: Commerce is a unit and does not regard State lines, and while under the Constitution interstate and intrastate commerce are ordinarily subject to regulation by different sovereignties, yet when they are so mingled together that the supreme authority, the Nation, can not exercise complete effective control over interstate commerce without incidental regulation of intrastate commerce, such incidental regulation is not an invasion of State authority. UNIFORM REGULATION INDISPENSABLE It Uniform regulation of aeronautics is admittedly not only desirable. but absolutely indispensable to the effective development of aerial transportation as an instrumentality of interstate commerce. therefore seems reasonable to believe that legislation for the regulation of aeronautics by the Federal Government would be sustained as constitutional, notwithstanding the fact that its scope would be broad enough to regulate both interstate and intrastate aerial navigation. An aircraft which is so constructed as to be used both in the air and upon the water presents a conflict of jurisdiction between the courts of admiralty and the courts of law. This conflict, however, is one which can and should be settled by legislative enactment. The draft of the uniform State aviation law contains the following declaration: A hydroplane while at rest on water and while being operated on or immediately above water, shall be governed by the rules regarding water navigation; while being operated through the air otherwise than immediately above the water, it shall be treated as an aircraft. While this dual jurisdiction may give rise to some confusion, it would seem to be the most logical solution of this particular problem. It has also been suggested that Congress in the exercise of its power to regulate interstate and foreign commerce could require corporations engaging in interstate or foreign aerial navigation to be incorporated under a Federal incorporation law. If this suggested legislation is enacted, Congress could confer upon the Federal courts exclusive jurisdiction of suits brought by or against such corporations. It would therefore appear that the regulation of aerial navigation will ultimately be either largely or exclusively vested in the Federal Government and any authority which may remain in the several States will be so limited in its extent that its exercise will not seriously interfere with the development of commercial aeronautics. (d) Article of George G. Bogert on problems in aviation law. NOTE. The following is an article by George G. Bogert, who at the time of its publication was dean of the Cornell University School of Law and chairman of the committee on the uniform aviation act of the Conference of Commissioners on Uniform State Laws. The article is reprinted from 6 Cornell Law Quarterly 271-309, March, 1921. PROBLEMS IN AVIATION LAW Legislation on the subject of aerial navigation is impending. Fly. ing and the manufacture of aircraft have become businesses of importance, but the rules of law which govern aviation remain uncertain. It is said that there are about 2,200 airplanes in commercial use in the United States and about 500 more privately owned, that 92 companies are engaged in operating and nearly twice as many in manufacturing aircraft, that about $40,000,000 is invested in the industry, and that in this country in the past 20 months machines have flown 14,000,000 miles. (E. N. Findley in New York Times, January 10, 1921.) Government aviation is developing and a united air service is projected. And yet, except to a limited extent in two States, it can not be said with positiveness whether an aviator is a trespasser as to the landowner over whose soil he flies, under what circumstances the aviator or his employer is liable if the machine falls to earth and does damage to person or property, and whether the States or the Nation, or both, have constitutional authority to regulate aerial navigation. Nor is there any general law, except the law of self-preservation, which forbids an inexperienced and incompetent pilot from flying anywhere in a defective machine. It is small wonder, therefore, that since the end of the World War we find considerable agitation in favor of legislation regarding aviation. In an address in February, 1919, Mr. A. R. Hawley, then president of the Aero Club of America, urged Federal legislation to regulate the navigation of the air. (8 Flying, 149.) A committee of the Manufacturers' Aircraft Association reported September 15, 1919, and recommended acceptance of the international air convention and the adoption of Federal legislation. (Unpublished report of that committee.) Mr. Glenn L. Martin, in November, 1920, advo |