National Status of Aircraft
John C. Cooper, National Status of Aircraft
National Status of Aircraft
John C. Cooper 0
0 Member, Institute for Advanced Study , Princeton, N. J.; Fellow , American Academy of Arts and Sciences; Princeton University, A.B. 1909; Chairman, Air Law Committee, American Branch, International Law Association. Formerly, Vice-President, Pan American Airways 1934-45; chairman, Committee on Aeronautical Law, American Bar Association 1932-34; chairman, U.S. delegation to International Conference on Private Air Law , Rome, 1933; advisor; U.S. delegation International Civil Aviation Conference, Chicago; Nov.- Dec., 1944, and Geneva conference, Nov. 1947; chairman, Organizing Committee and Executive Committee, IATA 1945; official observer, PICAO and ICAO Assemblies 1946-1949. Author of "The Right to Fly."
By JOHN C. COOPER
NTERNATIONAL air law is concerned with two major problems:
First, the legal status of those areas of space above the earth's surface
usable as a medium for the flight of self-propelled and man-controlled
or man-operated instrumentalities, including aircraft; and, second, the
legal status of such flight instrumentalities themselves.
The first problem (the legal status of usable space) involves a
determination of the relation of the several States to such usable
space - here called flight-space - particularly the right of each State
to use or control flight-space over its land and water territories and
over the high seas or other areas not subject to the territorial
sovereignty of any State. The second problem (the legal status of flight
instrumentalities) involves the determination (a) in public law, of
the relationship between the State and such flight instrumentalities,
and (b) in private law, the relationship between such flight
instrumentalities themselves and those persons who furnish supplies or
services for their operation or maintenance or suffer damage or other
wrong by reason of such operation.
This study assumes that the problem of the legal status of
flightspace has been settled insofar as those areas are concerned ordinarily
called "airspace" in which "aircraft" normally operate. In the
language of Article 1 of the Chicago Convention of 1944, each State has
"complete and exclusive sovereignty over the airspace above its
territory," such territory including both land areas and territorial waters
adjacent thereto. This study also assumes that no State has sovereignty
in any part of space over the high seas or over other areas on the
surface of the earth not part of the territory of any State.
This study does not deal with nor make any assumptions as to the
legal status of those areas of space above the "airspace," even though
* [NOTE-This article has been condensed by the author from a much longer
and more detailed study of the same subject matter prepared for the Air Law
Committee of the International Law Association (London).]
such areas are today usable for such flight instrumentalities as guided
missiles. Nor does this study deal with the legal status of any type of
flight instrumentality except "aircraft" capable of being used for the
carriage of men or cargo.
Aircraft are instrumentalities of transport. Transport, in its
broadest sense, is the movement of men or cargo from a determined
point of departure to or toward a desired destination. It involves:
first, motion; second, a medium on or through which such motion
takes place; and, third, instrumentalities or means used through such
medium to effectuate the transport. The four principal self-propelled
instrumentalities of transport, in the order of their historic
development, are (
) vessels, (2) railway trains, (
) automotive vehicles such
as buses, trucks and automobiles, and (4) aircraft. The first three use
areas on the earth's surface as mediums of transport. With the
discovery of the art of human flight, space above the earth took its place as
an entirely new transport medium. New legal problems immediately
arose. To understand the resulting difficulties in the determination
of the legal status of aircraft, an historic analysis of the development
of the legal status of the older forms of transport instrumentalities is
useful and perhaps necessary.
Centuries of international custom have invested vessels with a
status of legal quasi-personality. In public law a vessel may be said to
have the quality of nationality, indicating a relationship to a given
State somewhat similar to the relationship of an individual to the State
to which he owes allegiance. In private law, a vessel may be said to
have the quality of responsibility, indicating that the vessel itself,
irrespective of the responsibility of the owner or operator, is accountable
as an individual would be for services and supplies furnished it, as
well as for damages and injuries resulting from its use in maritime
transport. These two attributes of a vessel are quite distinct, although
they have at times been unnecessarily confused.
A. Nationality - Nationality has been stated to be "the status of
a natural person who is attached to a state by the tie of allegiance."1
A vessel is an inanimate object, a movable thing, but it is "a thing of
a very particular kind and which from several points of view may be
compared to a person."'2 Like persons, vessels are said to possess a
nationality. "Such a statement," says Hyde, "implies the existence of a
relationship between a vessel and a State of such distinctive closeness
and intimacy that the latter may fairly regard the vessel as belonging
to itself rather than to any other country." s
The possession by a vessel of nationality is "the basis for the
intervention and protection by a State" and "it is also a protection for other
States for the redress of wrongs committed by those on board against
their nationals. ' 4 On the concept that vessels belong each to a
determined State, they are submitted to its control, are exposed to its
sanctions in case of disobedience, and have at the same time a guarantor
(from the international point of view) of the manner in which they
will use the seas, and a protector against the abuse which they might
be compelled to suffer on the part of vessels of other States. This
quality of guarantor and protector given to the State whose flag the
vessel carries has in modern times led to the valid conclusion that the
nationality of a vessel "is the primary condition for the peaceful
utilization of the high seas." 5
The nationality of a vessel is that of the flag rightfully carried by
her. The State concerned accepts the authority and responsibility
resulting from the vessel's nationality.6
Public vessels are not ordinarily registered. Merchant vessels,
according to the laws of most States, must however be registered. Each
State determines for itself the political conditions as to ownership,
where the vessel was built, or otherwise, which will authorize
registration. With the basis to be applied by any State as a condition of
nationality and subsequent registration, international law in the absence
of special agreement or convention is not concerned.
The fact that vessels have the nationality of the State of the flag
has led to complicated problems affecting the jurisdiction of such State
and other States over such vessels, over those on board, and over crimes
or other occurrences there. These problems are concerned, among
other things, with the legal distinction between public and private
vessels, also with the difference existing between the competence of the
flag State and other States dependent on whether the vessel is in its
home waters, on the high seas, or in foreign waters. Any adequate
statement of these questions is quite beyond the scope of this study,
except to the extent that any necessary analogies to be drawn between
the situation of vessels and of aircraft will be covered hereafter when
discussing the nationality of aircraft.7
4 Alexander Pearce Higgins and C. John Colombos, The International Law
of the Sea, London/New York/Toronto, Longmans Green, 1943, p. 189.
5Gidel, op. cit. Vol. 1, pp. 73-74.
6John Westlake, InternationalLaw-Part I, Peace, Cambridge, Cambridge
Univ. Press, 1910, p. 169.
7 For some of the basic problems, see: Harvard Research in International
Law-Jurisdiction with Respect to Crime, in: American Journal of International
Law, Vol. 29, 1935, Supplement, pp. 508-519; Higgins and Colombos, op. cit.
Chaps. 7 & 8, pp. 164-222; Lassa F. L. Oppenheim, InternationalLaw: A Treatise,
7th ed., London/New York/Toronto, Longmans Green, 1948, Vol. 1, Secs.
260264, pp. 545-549, Sees. 450-451, pp. 764-767; The S.S. Lotus (France v. Turkey),
Permanent Court of International Justice, Judgment 9, Sept. 7, 1927, Ser. A,
No.' 10-also in: Manley 0. Hudson, World Court Reports, Washington,
Carnegie Endowment for International Peace, 1934-43, Vol. 2, pp. 20-92; Philip C.
Jessup, The Law of Territorial Waters and Maritime Jurisdiction, New York,
Jennings, 1927, p. 191.
B. Responsibility - A natural person is responsible for goods sold
to him and services performed for his benefit with his authority. He
is also responsible to compensate for damages negligently or
wrongfully caused an injured person.
In customary maritime law a vessel has been considered to have
such legal quasi-personality as to make it similarly responsible under
circumstances well known to the maritime law. The responsibility of
the vessel is enforceable in the admiralty courts by proceedings in rem
against the vessel itself. Salient features of the "maritime lien" thus
enforced are that such lien is not dependent upon the possession by
the lienor of the vessel; that the lien is not cut off by a sale even to a
bonafide purchaser except by proceedings in an admiralty court; and
that the vessel may be responsible in rem even if the owner is not
responsible in personam.
Maritime liens are generally now recognized for certain services to
the ship including seamen's wages, towage, wharfage, necessary repairs
and supplies, claims arising from a bottomry bond, salvage, general
average, and perhaps some others.
Even more striking is the responsibility of the vessel for the tort
damages which it causes. As was said by Justice Story in a leading
case: "It is not an uncommon course in the admiralty, acting under the
law of nations, to treat the vessel in which or by which, or by the
master or crew thereof, a wrong or offence has been done as the offender,
without any regard whatsoever to the personal misconduct or the
responsibility of the owner thereof.... The ship is ... by the general
maritime law held responsible for the torts and misconduct of the
master and crew thereof, whether arising from negligence or a wilful
disregard of duty; as for example, in cases of collision and other wrongs
done upon the high seas or elsewhere within the admiralty and
maritime jurisdiction, upon the general policy of that law, which looks to
the instrument itself, used as the means of the mischief, as the best and
surest pledge for the compensation and indemnity to the injured
As stated in a later leading case: "According to the admiralty law,
the collision impresses upon the wrongdoing vessel a maritime lien.
This the vessel carries with it into whosoever hands it may come.9
The responsibility of the vessel for both contractual or tort claims
is subject to a well-known exception. Ordinarily public vessels are
considered immune. As Justice Holmes said: "The personality of a
public vessel is merged in that of the sovereign."10 Unless the sovereign
consents to be sued, war vessels and other public vessels in the service
of a State appear to be immune from the direct responsibility which
other vessels in like circumstances would incur.
From the foregoing it is apparent that vessels have both nationality
in public international law and responsibility in private law within
the admiralty jurisdiction. As instrumentalities of international
transport they are under the protection of the State whose flag they
carry and that State is the guarantor to other States of their
international conduct. For the supplies, services, and wrong-doings recognized
as the bases of maritime liens they are responsible as if they were legal
2. RAILWAY TRAINS AND AUTOMOTIVE VEHICLES
A. Nationality - No suggestion has ever been made that railway
trains should have "national character" in international law.
However, as to automotive vehicles some confusion has existed. Certain
international conventions have been adopted to cover international
circulation of motor vehicles." A careful analysis of these conventions
demonstrates, however, that they provide nothing more than a means
of identifying the vehicle as having been registered and licensed in a
particular State, without investing the vehicle with the true
international law characteristic of nationality. These conventions do not
impute to the State that degree of responsibility for the conduct abroad
of the registered vehicle which is characteristic of the nationality of
vessels. Under such conventions, a contracting State will certainly not
consider itself responsible to protect the vehicle as a legal entity while
in foreign territory, apart from its owner or operator, as the same State
would protect its national vessels on the high seas or in foreign ports.
B. Responsibility - Neither railway trains nor automotive vehicles
have individual international responsibility for services and supplies
furnished or for damages caused. If by local law a lien exists for
supplies or services, it is ordinarily lost by surrender of the possession of
the thing to which the lien attaches. Separate responsibility does not
exist beyond the responsibility of the owner. Even though the railway
train or the automotive vehicle may under some systems of law be
classed as dangerous instrumentalities, making the owner responsible
for damages caused by them irrespective of negligence, nevertheless
the responsibility is that of the owner or operator and not that of the
vehicle itself, as distinguished from the rule of responsibility
applicable to vessels.
Aircraft, like vessels, and unlike railway trains and automotive
vehicles, now have that quality of legal quasi-personality in public
international law discussed above as nationality. But unlike vessels,
and like railway trains and automotive vehicles, aircraft are not yet
considered as having the quality of responsibility in private law. The
legal status of aircraft thus places them in a class apart from other
instrumentalities of transport and requires separate consideration.
Analogies to the status of either vessels or railway trains and
automotive vehicles may lead to inaccurate results.
A. Nationality - The term "aircraft" as here used includes both
balloons and airplanes. The first balloon flight took place in 1783, but
it was not until about the beginning of the twentieth century that
international law assigned the quality of nationality to flight
instrumentalities. Even in the agreement entered into in 1898 between
Germany and Austria-Hungary (the first known international air
navigation agreement) the States concerned did nothing more than grant
reciprocal authority for military aviation officers to cross the frontiers
in military balloons while in training - the balloons involved
appeared to have been considered merely as incidental vehicles.12 Nor
can The Hague declaration of 1899, prohibiting for a term of five
years the launching of projectiles or explosives from balloons, 3 be
considered as assuming national status in the balloons themselves
irrespective of the personnel on board.
The first statement that aircraft should have nationality like that
of vessels was made by Fauchille in 1901.14 He clarified it in 1902 in
his proposals to the Institute of International Law15 and repeated it in
his 1910 report. 6 Between 1902 and 1910 other writers on
international law and participants in learned conferences discussed the
necessity that aircraft have nationality somewhat like that of vessels when
used in international commerce.' 7
By 1909 governments had informally recognized that balloons and
other aircraft had something resembling national status. In that year
Clemenceau, as Minister of the Interior of France, issued a circular
directing that "foreign balloons" landing in France be held for duty.18
In the same year the French Government issued invitations to the first
formal diplomatic conference of European States ever held to discuss
questions of air navigation, asking the invited States, among other
things, whether they felt that public and private aircraft should be
distinguished and whether aircraft should have nationality. 19
The diplomatic conference called in 1909 met at Paris in 1910.
Its importance in the development of international air law has been
consistently underestimated. Emphasis has been given to the failure
of the conference to agree on the final terms of an international
convention. Too little has been said of what the conference accomplished.
In the matter of determining whether aircraft should be classified as
public and private and whether all aircraft should have nationality,
the discussions and decisions at the 1910 conference were
determinative of many subsequent developments.
The scope of this study will not permit a detailed examination of
the discussions at Paris in 1910. The result of these discussions appear
in the proposed international convention (complete except for
Articles 19 and 20 regarding the freedom or control of the circulation of
aircraft) as agreed upon when the conference adjourned.20 Chapter I,
which may be briefly examined, was entitled "Nationality and
RegisErlangen, E. J. Jacob, 1908, p. 16; Friedrich Grtindwald, Das Luf!tschiff in
v6lkerrechtlicher und strafrechtlicherBeziehung, Hannover, Helwing, 1908, pp.
37-45. (See also his: "Standesamliche Beurkundung von Todesfallen und
Geburten auf Luftschiffen," Archiv fiir 6ffentliches Recht, Vol. 24, 1909, pp. 478-483) ;
Arthur K. Kuhn, "Aerial Navigation in its Relation to International Law,"
Proceedings of American Science Association, 5th annual meeting, 1908, p. 85;
Ernst Zitelmann, "Luftschiffahrtrecht," Zeitschrift fulr internationales
privatund 6ffentliches Recht, Vol. 19, 1909, pp. 458-496; Christian Meurer,
Luftschiffahrtrecht, Munich/Berlin, J. Schweitzer, 1909, pp. 21-27; Chapter 2 (b) of "Le
Code de P'air" of the Comit6 juridique international de l'aviation in: Revue
juidique internationalede la locomotion adrienne, Vol. 1, 1910, p. 45; and
recommendations by German and French subcommittees at pp. 171 and 174
respectively; Proposal by von Bar before the Institute of International Law, in:
Annuaire de l'Institut de droit international, Vol. 23, 1910, p. 317; Antonio
Brunetti, "Lineamenti d'una legislazione sulla proprieth dei veicoli aerei," at
the Congresso giuridico internazionale per il regolamento dalla locomozione aerea,
Verona, 31 maggio-1-2 giugno, 1910, in: Atti e relazioni, Verona, Societh
tipografica cooperativa, 1910, pp. 48-55; "Views" adopted by the Verona conference,
in: Atti e relazioni, op. cit. p. 142 and Revue juridique internationalede Ia
locomotion adrienne, Vol. 1, 1910, pp. 181, 185.
18 Revue juridique internationale de la locomotion adrienne, Vol. 1, 1910,
19 Conf6rence internationale de navigation a6rienne, Paris, 1910, Exposd des
vues des puissancesd'apr~s les memorandums addressds au gouvernment frangais,
Paris, Imprimerie nationale, 1909,p. 9.
20Conf6rence internationale de navigation a6rienne, Paris, 1910,
Procsverbaux des sdances et annexes, Paris, Imprimerie nationale, 1910, pp. 188-205.
For French text of the proposed convention, see also: Albert Roper, La
Convention internationaledu 13 octobre 1919 . . ., Paris, Sirey, 1930, pp. 212-225. For
an English translation, see: Reports of the Civil Aerial Transport Committee
... , Presented to Parliament by Command of His Majesty, London, H.M.
Stationery office, 1918, (Cd. 9218), pp. 25-35.
tration of Aircraft." Article 2 of this chapter provided that only those
aircraft which possessed the "nationality" of a contracting State were
governed by the convention, and that none of the contracting States
should permit a free balloon or airship to fly over its territory unless
it complied with the above conditions, although special authorization
might be granted. Article 3 stated that nationality of aircraft should
be based, by the legislation of each contracting State, on the nationality
or domicile of the owner in the State's territory. Article 4 required
that when the aircraft possessed the nationality of one contracting
State, no other State could confer nationality upon it. Other articles
provided that aircraft be entered on the register of the State conferring
nationality, such entry containing a description and identification
mark of the aircraft; also that each aircraft should bear its nationality
mark and registration number and should carry a certificate of
navigability issued by the national State.
Public Aircraft Defined
In a later chapter public aircraft were defined (Article 40) as "the
aircraft employed in the service of a contracting State, and placed
under the orders of a duly commissioned official of that State." The
provisions applicable to determination of nationality and registration
were not to apply to such public aircraft. The distinctive national
mark to be borne by military aircraft (Article 42) would be "the
Sovereign emblem of their State"; the departure or landing of military
aircraft of a contracting State in the territory of another State would
be allowed (Article 44) only with the latter's authorization, and each
contracting State might forbid or regulate the passage of military
aircraft of other contracting States over its territory. But military
aircraft (Article 46), when legitimately within or above the territory
of a foreign State, should "enjoy the privilege of extraterritoriality,"
as also the members of the crew wearing uniform while forming a
distinct unit or carrying out their duties.
The principle of nationality of aircraft as thus accepted by the
1910 conference was carefully explained in the proceedings. In the
report filed on behalf of the First Commission of the conference by
Fauchille (serving as reporter and one of the French delegates), it was
pointed out that the delegations of Switzerland and of the Netherlands
had considered that aircraft should be treated in a manner similar to
automobiles and needed only identification, 21 but that the other States
had adopted the view that an aircraft was more like a vessel than an
automobile - that it constituted a kind of legal entity - that it should
have its own nationality. The majority of the States present felt that
aircraft should be thus under the control of a particular State,
responsible for it to other States, and that the aircraft itself should be entitled
to the ,protection of such State. It was recognized that this
responsi21 Ibid. p. 78.
bility and right of protection constituted, between that State and the
aircraft, a relationship analogous to that existing between a vessel and
the State whose flag it carries, called (as stated in the report) "the
nationality of the vessel." It was made clear, however, that the State
of the flag of the aircraft would not thereby be responsible in private
law for damages caused by force majeure or resulting from fault or
negligence of the aviators, nor would the national character of aircraft
prejudge the solution of questions of conflict of laws and jurisdiction
which air navigation might raise in civil and penal matters.22
Nothing that has occurred since 1910 detracts from the soundness
of the explanation of nationality of aircraft as then accepted. In public
international law the nationality of vessels and the nationality of
aircraft indicate the responsibility of the flag State to other States for the
conduct of the vessel or aircraft in question and the right of such
vessel or aircraft to international protection by such State.
Following the 1910 conference the application of the concept of
such nationality to aircraft was rapidly accepted both in doctrine and
in practice. At the meeting of the Institute in April 1911 at Madrid
it was decided that aircraft should be classified as public and private;
that each aircraft should have nationality, and that this should be that
of the country where the aircraft was registered. 23
British and French Practice
In 1911 the first British Aerial Navigation Act (1 &:2 Geo. 5) was
adopted, granting to a Secretary of State wide powers to prohibit by
order the navigation of aircraft over such areas as might be prescribed
in the order. The power to differentiate between national and foreign
aircraft was implicit in the Act.
A French decree later in 1911 provided that no aircraft could be
put in service in France without a navigation permit, unless it
satisfied the conditions foreseen by international conventions. As no
international convention had been entered into, this meant that no aircraft
could be flown in France unless a French permit were issued. The
details included in this decree were clear adaptations into national
practice of the priniciples accepted at the 1910 Paris conference
differentiating between public and private aircraft, and providing for
registration of the latter and separate flight regulations and
nationality provisions applicable to the two classes. It also recognized the
difference between national and foreign aircraft.
The concept of nationality was further clarified in practice by the
British "Aerial Navigation Act, 1913," amending the Act of 1911, and
specifically providing for the issuance of orders prescribing "the areas
22 Ibid. p. 74.
28 Annuaire de l'Institut de droit international,Vol. 24, 1911, p. 346. Similar
conclusions were reached at the first congress organized by the Comit6 juridique
international de l'aviation held in Paris, May 31, 1911. See: Revue juridique
internationalede la locomotion adrienne, Vol. 2, 1911, pp. 201-202.
within which aircraft coming from any place outside the United
Kingdom are to land and the other conditions to be complied with by such
aircraft. . . ." The orders thereafter issued under this Act recognized
the principle of nationality both for public and private aircraft.
the year. 25
In the same year an international arrangement was made between
France and Germany by an Exchange of Notes dated July 16, 1913,
under which French aircraft might fly into and over Germany and
German aircraft might fly into and over France subject to very strict
issued in France replacing the 1911 decree regulating air navigation. 24
On December 13, 1913 a new presidential decree was
The new decree continued in effect and amplified most of the old
provisions. In the order implementing this decree, attention was directed
to the fact that no aircraft could fly in France without a permit except
in accordance with international conventions, and calling attention to
the arrangement between Germany and France concluded earlier in
Again the principle of nationality was full accepted and
With the outbreak of World War I the actions of both neutral and
belligerent powers recognized that aircraft had acquired national
character and should be dealt with as legal entities. 26 But the privilege of
asylum and temporary sojourn for repairs, usually accorded to war
vessels in international law, was not accorded to belligerent aircraft. 27
In Fauchille's proposed international convention, submitted to the
Institute in 1911, provisions had been inserted permitting belligerent
military aircraft to leave any neutral territory within twenty-four hours
after entry, and that in general the Hague Convention of October 18,
23a For text of this agreement, see: Roper, op. cit. pp. 246-251; Revue
juridique internationalde la locomotion adrienne, Vol. 4, 1913, pp. 240-242. See also:
John C. Cooper, The Right to Fly, New York, Henry Holt, 1947, pp. 20-22.
24Revue juridique internationale de la locomotion adrienne, Vol. 5, 1914,
25 Ibid. pp. 20-23.
26 For neutral treatment of belligerent aircraft, see: Netherlands decree of
August 3, 1914, which prohibited airships not belonging to the Netherlands'
forces from crossing its land frontiers [Francis Dedk and Philip C. Jessup, eds.,
A Collection of Neutrality Laws, Regulations and Treaties of Various Countries,
Washington, Carnegie Endowment for International Peace, 1939, Vol. 2, p. 807];
Swedish law of September 7, 1914, which authorized the king by order to prohibit
air traffic over Swedish territory except to aircraft of the Swedish State or
engaged in its service [British& ForeignState Papers, Vol. 110, p. 560; Defk and
Jessup, op. cit. p. 964]; and proclamation of same date by King of Sweden
prohibiting such air traffic [Deik and Jessup, op. cit., p. 975J and amendment to
this prohibitory order to apply it to "airplanes other than those belonging to
Sweden" [Dedk and Jessup, op. cit. p. 975]; ordinance of the Federal Council of
Switzerland dated August 4, 1914 which provided that balloons and aircraft not
belonging to the Swiss army could not rise and navigate in airspace over Swiss
territory except with special permission, and that passage of all balloons and
aircraft coming from abroad was forbidden [Deik and Jessup, op. cit. p. 1008];
proclamation by the United States of America on November 13, 1914, relating
to the neutrality of the Panama Canal Zone, which forbade by Rule 15 "aircraft
of a belligerent power, public or private" from descending or rising within the
jurisdiction of the United States at the Canal Zone or to pass through the
airspace above the lands and waters within such jurisdiction [Defk and Jessup,
op. cit. p. 1205].
27 James Molony Spaight, Aircraft in Peace and the Law, London, Macmillan,
1919, p. 9.
1907, applicable to rights of neutrals in naval warfare, should be
applied to air warfare. 28 In practice the principle of twenty-four hour
asylum was not accepted. When, on August 29, 1914, the German
Government protested to the Dutch Government against the seizure
of a German naval airplane in a Dutch port, the Dutch Government
replied that aircraft could not be treated as warships due to their
liberty of action and the facility with which they could carry out
reconnaissance and escape from all control, and that aircraft must
therefore require special treatment.29 The nationality of aircraft was thus
recognized, but certain privileges in time of war accorded to war
vessels were denied. It may be said here that this rule of international
air law, pursuant to which belligerent aircraft are treated as being sui
generis and, upon entering neutral territory, must be interned by the
neutral State together with the crew, has by custom of World War I
and World War II become a recognized and generally accepted
Nationality in Western Hemisphere
While World War I was being fought in Europe, the concept of
nationality of aircraft began to receive general recognition in the
western hemisphere. For example, at the unofficial Pan American
Aeronautic Conference held at Santiago, Chile, in March 1916
recommendations were adopted which included rules that all aircraft should
have nationality - public aircraft to be that of the State to which they
belonged, and private to be that of the owner - and that all aircraft
should carry a distinctive national emblem. 81 Also, in the project for
the regulation of maritime neutrality adopted by the American
Institute of International Law in 1917, the nationality of aircraft was tacitly
recognized by the provisions of Article 20, stating that airplanes,
dirigibles, or aircraft of belligerent countries were not permitted to fly
over the territory or the jurisdictional sea of neutral powers8. 2
Work of AeronauticalCommission at Peace Conference
Alter World War I
When at the end of World War I the Aeronautical Commission of
the Peace Conference was established in March of 1919 and directed
to prepare a convention on international air navigation in time of
peace, two draft conventions had already been prepared - one by
Great Britain and the other by France. The Commission also had
available the work of the 1910 Paris Conference. At one of its first
sessions the Commission adopted certain principles to govern its work,
including the following: "4. The recognition that every aircraft must
possess the nationality of one contracting State only, and that every
aircraft must be entered upon the register of a contracting State, the
nationality of which it possesses." 33
When the Legal Subcommission reported to the Aeronautical
Commission, it discussed the question of nationality.34 Having first decided
that the proposed convention should be based on the principle that
each State has sovereignty in the airspace over its territory and having
then discussed the question of innocent passage for aircraft of
contracting States in the airspace over other contracting States, the
Subcommission said, in substance, that access into airspace being open to
aircraft of contracting States, the first question logically presenting itself
was that of "nationality." Reasons were then stated as to why the
Subcommission recommended that aircraft could be registered only in
the State of which its owner was a national. The general effect of
nationality does not seem to have been fully discussed, at least so far
as available records of the actual proceedings indicate. But the text
reported to the Commission, and adopted by the Commission, and
ultimately incorporated into the final convention of 1919, leaves no
doubt that nationality was considered as having the characteristics in
international law contemplated in the 1910 conference. The analogy
to the nationality of seagoing vessels and the similarity of the language
of the 1919 convention and the 1910 draft convention leaves little
doubt of the correctness of this assumption.
The Paris convention as finally signed in 1919 provided, among
other things: (Art. 5) that no contracting State should, except by
special authorization, admit flight over its territory by aircraft not
possessing "nationality of a contracting State"; (Art. 6) that aircraft
possess the nationality of the 'State where registered; (Art. 7) that no
aircraft should be, registered unless it belongs wholly to nationals of
such State, with special provisions as to aircraft owned by an
incorporated company; (Art. 8) that aircraft cannot be validly registered
in more than one 'State; (Art. 15) that every aircraft of a contracting
State has the right to cross the airspace of another State without
landing, (thus indicating that aircraft were considered as legal entities
representing their national State) ; (Art. 25) that each contracting State
undertook to ensure that every aircraft flying above its territory and
that every aircraft wherever it might be carrying its nationality mark
should comply with the regulations under the convention, (thus
indicating that each contracting State assumed the responsibility for the
conduct abroad of aircraft having its nationality).
83 Conference de la paix, 1919-1920, Recuoil de8 actes de la confirence, Partie
VII, Preparation et signature des trait~s et conventions divers, A-Conventions
g6n6rales entre alli6s, (
) Commission de I'aronautique, Paris, Imprimerie
nationale, 1933, pp. 14, 143; La Paix de Versailles: agronautique, Paris, Les
Editions internationales, 1934, pp. 20, 129.
34 Conf6rence de la paix, op. cit., p. 429; La Paix de Versailles, op. cit. p. 499.
When the Paris Convention was discussed at the meeting of the
International Law Association at Portsmouth in- 1920, Hazeltine,
certainly one of the greatest experts on international air law then living,
pointed out the analogy in the convention between the nationality
and registration of aircraft and existing international law as to the
nationality and registration of seagoing vessels.3 5 This principle that
each aircraft shall have nationality and be registered was also
incorporated into the Ibero-American Convention Relating to Air
Navigation3 6 signed at Madrid in 1926 and in the Pan American Convention
on Commercial Aviation 7 signed at Havana in 1928. However,
Article 8 of the Pan American Convention abandoned the requirement
that contracting States must be governed by the nationality of the
owner of the aircraft when authorizing registration and adopted the
generally understood international rule as to vessels by which each
State determines for itself the basis on which it will allow its flag to be
carried. Accordingly the Pan American Convention provided that
"the registration of aircraft . . . shall be made in accordance with the
laws and the special provisions of each contracting State." This
principle was also accepted by an amendment to Article 7 of the Paris
Convention in 1929, bringing even closer the analogy with international
maritime law. The principle became thus generally accepted that
each State is the sole judge of the basis on which aircraft may be
registered and thereby assume the nationality of the State in question.
Proposed Aerial Warfare Rules
Several important doctrinal discussions between World War I and
World War II further clarified the principle of nationality. The
"Proposed Rules for the Regulation of Aerial Warfare" drafted by the
Commission of Jurists at The Hague in 1923, although never adopted
as an actual international convention, have always had great weight
as a sound statement of the rules of international air law applicable in
time of war.8 8 These rules provided for a distinction between public
and private aircraft, and also between military aircraft and others
employed in public service. They further provided that aircraft should
carry external marks to show nationality and that "no aircraft may
possess more than one nationality." The rules themselves have a
striking resemblance to certain of the accepted practices of naval warfare,
except that Rule 40 stated that "belligerent military aircraft are
forbidden to enter the jurisdiction of a neutral State," and Rule 42 stated
that "a neutral government shall use the means at its disposal to intern
any belligerent military aircraft which is within its jurisdiction after
having alighted for any reason whatsoever, together with its crew and
the passengers, if any." Similarly, in the exhaustive study on "Rights
and Duties of Neutral States in Naval and Aerial War" made by the
Harvard Research in International Law, 9 and in the draft convention
prepared as the result of its study, the nationality of aircraft was
accepted as the basis for the proposed rules so far as "aerial war" was
concerned. In an earlier study made by the Harvard Research in
International Law, dealing with "Jurisdiction with Respect to Crime,"
the conclusion reached was that "a State has jurisdiction with respect
to any crime committed in whole or in part upon a public or private
ship or aircraft which has its national character." 40 As to the status of
aircraft, the comment on this provision says that "ships and aircraft are
not territory" - that "it is recognized, nevertheless, that a State has
with respect to such ships or aircraft a jurisdiction which is similar to
its jurisdiction over its territory." 41 The commentary further notes
that "it is of course true that most aircraft are much less self-contained
than seagoing vessels at the present time" - that "it seems, however,
that in their legal relations to their own State and to foreign States
they have many points of resemblance and that they may well be
regarded, for present purposes, in substantially the same way.' 42
The Institute of. International Law reviewed its position on
international air navigation at its meeting at Lausanne in 1927, and again
held that every aircraft should have one nationality and one only, and
that this nationality should be that of the country where the aircraft
is registered. 43 Again, in 1937, when considering the question of
conflict of laws on board "private aircraft," the Institute accepted
nationality of aircraft as an existing status, using such language as "the State
of the nationality of the aircraft. '44
World War II and The Chicago Convention
With the outbreak of World War II aircraft became primary
international carriers. The normal method of crossing both the Atlantic
and Pacific Oceans, except for mass troop movements, was by air. The
nationality of aircraft was accepted into customary international law
as fully as the nationality of merchant vessels. The protective
jurisdiction of the State of the flag and the responsibility of that State were
fully recognized, whether the State of the flag of the aircraft was or
was not a party to the Paris Convention or the Havana Convention
(the Madrid Convention never having had actual international
The Convention on International Civil Aviation, signed at
Chicago in 1944, provides for classification, nationality and registration of
39 American Journal of International Law, Vol. 33, 1939, Supplement, pp.
40 Ibid. Vol. 29, 1935, Supplement, p. 508.
41 Ibid. p. 509.
42 Ibid. pp. 516-517.
43 Annuaire de l'Institut de droit international,Vol. 33 (
), 1927, p. 338.
44 Ibid. Vol. 40, 1937, p. 276.
aircraft. Certain of its provisions are a compromise between the draft
convention submitted by Canada 4 5 and that submitted by the United
States.40 The Canadian draft followed almost exactly the language of
the Paris Convention with respect to nationality. Included in its
provisions was an article providing that military aircraft in foreign
territory should enjoy, in principle, the privileges accorded to foreign ships
at war. The United States draft covered only "civil aircraft."
Article 3 of the Chicago Convention, as signed, reads in part as
"(a) This Convention shall be applicable only to civil aircraft,
and shall not be applicable to state aircraft.
"(b) Aircraft used in military, customs and police services shall
be deemed to be state aircraft.
"(c) No state aircraft of a contracting State shall fly over the
territory of another State or land thereon without authorization
by special agreement or otherwise, and in accordance with the
"(d) The contracting States undertake, when issuing
regulations for their state aircraft, that they will have due regard for
the safety of navigation of civil aircraft."
While there may be some seeming ambiguity between the provisions
of subparagraph (a) of Article 3 and the subparagraphs (c) and (d)
of this article, it was certainly intended to mean that the convention
as a whole, with the exception of subparagraphs (c) and (d), should
be applicable only to "civil aircraft." 47 The terms "public" and
"private" are not used in the convention in the classification of aircraft.
The convention is therefore applicable to all aircraft, whether owned
and operated by a State, unless such aircraft are actually "used in
military, customs and police services" by a contracting State. Due to
the fact that the convention is primarily concerned with international
civil air transport, no provision is made (as it was in the Paris
convention) to define the privileges to be accorded in foreign territory
to military aircraft as distinguished from other State aircraft.
The articles applicable directly to nationality of aircraft include:
"Article 17. Aircraft have the nationality of the State in which
they are registered.
"Article 18. An aircraft cannot be validly registered in more
than one State, but its registration may be changed from one State
"Article 19. The registration or transfer of registration of
aircraft in any contracting State shall be made in accordance with its
laws and regulations.
45 See: Canadian Revised Preliminary Draft of an International Air
Convention [Chicago Conference Document 50], reprinted in: U.S. Dept. of State,
Proceedings of the International Civil Aviation Conference, Chicago, Illinois,
Nove4m6bSeere:1-UDneciteemdbSetra7te,s19P4r4op[Doseaplt.ofofaSCtaotnevPenutbio.nNoo.n2A82ir0]N,aVvoilg. a1t,iopnp. [5C7h0i-c5a9g1o.
Conference Document 16], reprinted in: ibid. Vol. 1, pp. 554-566.
47 The writer of this study was chairman of the drafting committee which
reported out parts of the convention, including Article 3, and therefore has no
hesitation in criticizing and taking some responsibility for the draft.
"Article 20. Every aircraft engaged in international air
navigation shall bear its appropriate nationality and registration
It will be noted that the Chicago Convention adopts the principle
that each State will decide for itself the basis on which it will permit
aircraft to be registered. Article 17, providing that aircraft have the
nationality of the State in which they are registered, accepts the
principle of Article 6 of the Paris Convention that "aircraft possess the
nationality of the State of the register on which they are entered."
This is a rule as between contracting States, but it certainly does not
mean that "state aircraft" of all States and civil aircraft of
non-contracting States are without nationality. By the time the Chicago
Convention was drafted, customary intetnational air law had so completely
accepted the concept of nationality of aircraft that no question could
possibly exist as to the fact of nationality of any aircraft lawfully
carrying national insignia of a particular State.
Registration does not create nationality. It is simply an evidence
of nationality, and nothing in the Chicago Convention should be read
to the contrary.
State Is Protectorof Aircraft and Guarantorof Its Conduct
The Chicago Convention assumes that aircraft are legal entities
and directly recognizes the State as the guarantor of the conduct of
aircraft possessing its nationality, as well as the protector of such
aircraft. For example, Article 5 is a direct commitment of each
contracting State to accord to "all aircraft of the other contracting States"
certain transit and non-scheduled traffic privileges. If an aircraft has the
nationality of a contracting State, it has the privileges contemplated
under this article, and the State of its flag may proceed against any
other State to enforce these privileges in international law for the
benefit of its aircraft. Such aircraft are dealt with in the article
directly as objects of international law. The resulting general position
is quite analogous to that created since the fourteenth century by those
international maritime law commercial treaties which accorded to
merchant vessels of one contracting State the privilege of entering the
ports and harbors of another contracting State. 48 The nationality of
the operator is immaterial.
The status of an aircraft as a legal entity is further emphasized by
such provisions as Article 11, providing that the laws and regulations
of a contracting State relating to the admission to or departure from
its territory of aircraft engaged in international air navigation, or to
the operation or navigation of such aircraft while within its territory
"shall be applied to the aircraft of all contracting States without
dis48 See, for example, treaties between England and various other countries
described in: David Macpherson, Annals of Commerce, Manufactures, Fisheries,
and Navigation . .. , London, Nichols, 1805, Vol. 1, p. 551, 617, 631, 713, Vol. 2,
p. 8 .
tinction as to nationality and shall be complied with by such aircraft
upon entering or departing from or while within the territory of that
State." [italics supplied] Under this article the State of the nationality
of the aircraft will be entitled to protect its aircraft in case of
discrimination, but will also be responsible to guarantee the conduct of its
aircraft as to compliance with the local rules.
Article 12 provides that each contracting State "undertakes to,
adopt measures to ensure.., that every aircraft carrying its nationality
mark, wherever such aircraft may be, shall comply with the rules and
regulations relating to the flight and maneuver of aircraft there in
force." The same article contains an entirely new principle in
international air law to the effect that over the high seas the rules in force
shall be those established under the convention. Each State therefore
guarantees that aircraft having its nationality will comply, while over
the high seas, with the rules set up under the convention, and, when
in national territory of another State, will comply with the rules there
Considering the present text of the Chicago Convention and the
history which preceded it, we can hardly deny that aircraft, like
seagoing vessels, and unlike railway trains and automotive vehicles, now
have that quality of legal quasi-personality in public international law
known as "nationality." The development of air law, both by custom
and international legislation, has demonstrated the soundness of the
statement used in the report of the First Commission of the 1910
conference.4 9 No one today can question the basic theses: (
) that an
aircraft, to engage in international flight, should be placed under the
control of a State which would be responsible to other States for the
conscientious exercise of such control; (2) that setting off the
obligations imposed on the aircraft in such international flight are the rights
accorded to it, and that to enforce these rights the aircraft may need
the protection of a State which, within the limits of international law,
may intervene in its interest; (
) that this role belongs naturally to
the State charged with control of the aircraft; (4) that the
responsibility and right of protection joined in the hands of one and the same
State constitute between that State and the aircraft a tie analogous to
that existing between a vessel and the State whose flag it carries and
which is called "the nationality of the vessel."
Major Problems Created by Acceptance of Nationality for Aircraft
But the acceptance into international air law of the principle that
every aircraft must have nationality and that this nationality is at least
similar to that of vessels has created cognate problems some of which
still require settlement. These problems are of two general classes:
(a) the rights of state aircraft, and (b) the respective jurisdiction and
competence of the State of the flag of the aircraft and of other States,
49 See note 22 supra.
in whose territory the aircraft may be, to deal with matters occurring
on board the aircraft. These questions must be resolved before it can
be said that the legal status of aircraft has been finally determined for
all places and for all conditions arising in international flight.
The Chicago Convention, as stated earlier, divides aircraft into
two classes: state aircraft and civil aircraft, abandoning the .older use
of the terms "public" and "private." The provisions of Article 3 (b)
and 3 (c) quoted above raise two questions. First, is the definition of
state aircraftadequate? Second, in the absence of special terms in the
authorizationcontemplated by Article 3 (c), are military, customs and
police aircraft to be treated alike when in foreign territory?
As to the first of these questions it must be said that the Chicago
Convention is purposely less definite than some of its predecessors.
The language used was understood to be vague but was considered a
more practical solution than any of the several attempts which had
been made in the past to define such classes as, for example, military
aircraft. The determining factor under the Chicago definition is
whether a particular aircraft is, at a particular time, actually used in
one of the three special types of services. If so, it is a "state aircraft."
Otherwise, it is a "civil aircraft." This solution leaves for settlement,
under the facts of a particular case, such difficult problems as those
arising when aircraft operated by the armed services carry non-military
passengers and cargo. These questions the governments affected must
settle from time to time.
The second question, as to the status of state aircraft, is more
difficult. The Paris Convention provided that in the absence of special
stipulation military aircraft, when authorized to fly over the territory
of another contracting State or to land therein, should enjoy "the
privileges which are customarily accorded to foreign ships of war," but
that these privileges should in no case be enjoyed by police and
customs aircraft. It was felt that military aircraft had the same character
of a political organ removed from every intervention by another
sovereign power as had a foreign warship in a national port. 50
Although the Chicago Convention is silent in the matter, the pres-'
ent writer feels that the rule stated in the Paris Convention is sound
and may be considered as still part of international air law. But if it
is desired that police and customs aircraft should enjoy similar
exemption in the absence of stipulation to the contrary in the authorization
given them to proceed to a foreign country, such exemption must be
covered by an amendment to the Chicago Convention or by other
The general and most important question still unsettled involves
the'respective competence and jurisdiction of the State of the flag of
the aircraft and other States to deal with the matters occurring on board
the aircraft. In the draft of the Paris Convention, as prepared by the
50 Conference de la paix, op. cit. pp. 433-434; La Paix de Versailles, op. cit.
Aeronautical Commission, this matter was proposed to be dealt with
by the following article:
"Article 23. All persons on board an aircraft shall conform to
the laws and regulations of the State visited.
"In case of flight made without landing from frontier to frontier,
all persons on board shall conform to the laws and regulations of
the country flown over, the purpose of which is to ensure that the
passage is innocent.
"Legal relations between persons on board an aircraft in flight
are governed by the law of the nationality of the aircraft.
"In case of crime or misdemeanor committed by one person
against another on board an aircraft in flight the jurisdiction of
the State flown over applies only in case the crime or misdemeanour
is committed against a national of such State and is followed by a
landing 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
safety and its military and fiscal laws;
2. In case of a breach of its regulations concerning air
But before the Paris Convention was actually signed, this article
was omitted nor does any article in the Chicago Convention cover the
same subject matter except to the very limited extent of Article 13
which is as follows:
"Article 13: The laws and regulations of a contracting State as
to the admission to or departure from its territory of passengers,
crew or cargo of aircraft, such as regulations relating to entry,
clearance, immigration, passports, customs, and quarantine shall
be complied with by or on behalf of such passengers, crew or cargo
upon entrance into or departure from, or while within the territory
of that State."
In an effort to provide for settlement of the possible conflict in
competence of the courts and applicability of the laws of the State of
the flag and the State of the territory where the aircraft might be, in
case they were not the same, the International Law Association drafted
an international convention containing the following provisions:
"(a) Civil Jurisdiction:
"The airship which is above the open sea or such territory as is
not under the sovereignty of any State is subject to the laws and
civil jurisdiction of the country of which it has the nationality.
"A public airship which is above territory of a foreign State
remains under the exclusive jurisdiction of the State of which it has
"A private airship which is above the territory of a foreign State
is subject to the laws and jurisdiction of such State only in the
1. With regard to every breach of its laws for the public
safety and its military and fiscal laws.
51 Conference de la paix, op. cit. p. 155.
2. In case of a breach of its regulations concerning air
3. For all acts committed on board the airship and having
effect on the territory of the said State.
"In all other respects a private airship follows the laws and
jurisdiction of the State of the flag.
"If at the commencemment or during the progress of any flight
of any aircraft passing over any State or States or their territorial
waters or over the high seas without landing, any person on board
such aircraft commits any crime or misdemeanour, the person
charged shall forthwith be arrested if necessary. Such felony or
misdemeanour may be enquired into and the accused tried and
punished in accordance with the Rules given under Art. 2. The State
of the place where such aircraft lands shall be bound to arrest the
accused if necessary and to extradite him to the State which has
jurisdiction over him.
"Acts committed on board a private aircraft not in flight in a
foreign State shall be subject to the jurisdiction of such State, and
any person or persons charged with the commission of such act
shall be tried and, if found guilty, punished according to the laws
of such State." 52
This draft convention, prepared twenty-five years ago, still stands
as the position of the International Law
matter which it covers has not been included in any international
legislation, nor have sufficient cases arisen to assume that the questions
covered are settled as part of customary international law.
problem is still open. It can be settled only by an international convention
which should be promptly adopted.
the statute laws of certain States.5 3
Conflicts already exist between
As Lemoine has well said:
"The determination of the law applicable to events occurring
and acts performed on board an aircraft is a complex and difficult
problem. It is only fragmentarily settled by positive law and the
different national systems do not furnish altogether consistent
52 International Law Association, Report of the 33rd Conference, Stockholm,
1924, London, Sweet & Maxwell, 1925, pp. 117-118.
For other proposals on the same subject, see: (
) "Chapitre VI, Code
international de l'air," 5th Congress, Comit6 juridique international de l'aviation,
Prague, 1922; (2) Articles 1-7 of proposal as to crimes committed on board
aircraft, 9th Congress, CJIA, Budapest 1930; (
) Harvard Research draft
convention on Jurisdiction with Respect to Crime, Article 1 (d), 3, 4, published in
American Journal of InternationalLaw, Vol. 29, 1935, Supplement, pp. 439-635;
Convention proposed by Institute of International Law, Luxembourg, 1937, in:
Annuaire de l'Institut de droit international, Vol. 40, 1937, pp. 276-278;
proposals of Dr. Alex Meyer in 1946 contained in "Crimes et d~lits a bord des
a~ronefs, Revue g6niralede l'air,IXann4e (nouvelle s4rie), 1946, pp. 544-558, 614-632.
53 Harvard Research in International Law-Jurisdiction with Respect to
Crime, op. cit. p. 515; Meyer, op. cit. p. 619.
54 Maurice Lemoine, Trait6 de droit adrien,Paris, Recueil Sirey, 1947, p. 201.
For a general discussion of conflicts of law affecting aircraft, see: Fernand de
Visscher, "Les Conflits de lois en mati~re de droit a~rien," Hague, Acad4mie de
droit international, Recueil des cours, Vol. 48, 1934-I, pp. 279-385.
B. Responsibility of Aircraft. As stated earlier in this study,
aircraft unlike vessels and like railway trains and automotive vehicles are
not yet considered as having the quality of responsibility in private
law. As instrumentalities of international transport, aircraft are not
directly responsible as are Vessels for supplies, services and
wrongdoings recognized as the bases for what are ordinarily known as
maritime liens. Aircraft, like other chattels generally, may be held for the
debts of the owner or, under certain local statutes, may be held for the
satisfaction of specifific liens. But such claims against an aircraft do
not have the characteristics of a maritime lien for which a vessel is
responsible, in many cases. irrespective of the responsibility of the
owner, nor does international law recognize (in the absence of a
statute or convention) the validity of claims against an aircraft when the
aircraft has passed into the hands of a bona fide purchaser without
notice of the prior claim.
It has been held, for example, that a lien for repairs performed on
a seaplane in a shop on land is not a maritime lien and does not have
precedence over a penalty government lien which accrued later in time.
Without deciding what would have been the case if the repairs had
been performed on the seaplane while it was in the water, the court
held that the claim for repairs "is no better than a lien against an
ordinary airplane," thereby holding that there is no claim generally
recognized in international air law for a lien for repairs against an airplane
as there would be in maritime law against a vessel. 55
As to supplies furnished an aircraft, it may be noted that Article 25
of the Pan American Convention provided that "the commander of
an aircraft shall have rights and duties analogous to those of a captain
of a merchant steamer," but this provision was not repeated in the
Chicago Convention. While it might have been argued that under
the Pan American Convention the aircraft commander could obligate
the aircraft in a foreign port for repairs and supplies as the captain of a
merchant vessel may do, this provision is no longer in force even as
between those States which were parties to the Pan American
Convention. In fact, the draft convention "on the Legal Status of the Aircraft
Commander" (originally drafted by CITEJA and now before the
Legal Committee of the International Civil Aviation Organization) 56
does authorize the aircraft commander to buy items necessary for the
55 United States of America, Libellant of one FairchildSeaplane, etc.,
appellant, v. Northwest Air Service, Inc., appellee, U.S. Circuit Court of Appeals, 9th
Circuit, December 20, 1935, 80 F. (2d) 804, cited in: U.S. Aviation Reports, 1936,
See also: Andrew Foss v. Airplane Crawford Bros. No. 2, U.S. District
Court, Western District of Washington, June 27, 1914, 215 Fed. 269, cited in:
U.S. Aviation Reports, 1928, pp. 1-3; Arnold D. McNair, The Law of the Air,
London, Butterworth, 1932, Chap. 8, pp. 144-151.
The statements in 1921 by Judge Cardozo in Reinhardt v. Newport Flying
Service Corporation, et al., [232 N.Y. 115, cited in: U.S. Aviation Reports, 1928
pp. 4-7] to the effect that a hydroplane moored in navigable waters is a vessel
was, in the judgment of the present writer, dicta and not necessary to the
determ5in6aItniotenrnoaftitohnealissCueivsilprAesveinatteiodn. Organization, Document No. 5190, LC/88,
March 2, 1948, p. 3.
completion of the trip and to have repairs made which are necessary to
enable the aircraft to proceed promptly. But the terms of the draft
convention make it clear that this power given the aircraft commander
is a power to obligate the owner and not to bind the aircraft itself.
Further, Article 4 states definitely that "the Commander may not,
without special authority, sell the aircraft, or, by any contractual act,
mortgage or subject it to any similar claim." This draft convention
appears to be a repudiation of any suggestion that the aircraft,
irrespective of special authority from the owner, is responsible as a vessel would
be for supplies and repairs in a foreign port.
Responsibility of the Aircraft for Salvage and Collision Claims
The characteristic responsibility of vessels for salvage services has
been held not to apply to aircraft in the absence of special statute.
This was held in a leading case in which it was determined that even a
seaplane does not satisfy the definition or description of a ship or a
vessel, and that the British Air Navigation Act of 1920 (10 & 11 Geo.
5, c. 80) was restricted to British and foreign aircraft within the limits
of British territorial jurisdiction and to British aircraft all over the
world, but they did not apply to salvage claims against a foreign
aircraft or its cargo.57 Section 11 of this Act had provided that the law
relating directly to salvage of life or property should apply to aircraft
on or over the sea or tidal waters as it applies to vessels. But this area
was held to be insufficient to cover salvage by British vessels on the
cargo of an American seaplane wrecked on the coast of Greenland.
After the Watson case was decided, the British Air Navigation Act of
1936 (25 Geo. 5, 8 1 Edw. 8, c. 44) sought to extend the provisions of
British law to cover salvage claims against foreign aircraft and claims
for salvage services generally outside the limits of British territorial
waters. But irrespective of how these new provisions may be
construed, obviously they are statutory provisions and not statements of
existing international law. This is further borne out by the fact that
the convention signed at Brussels entitled "The Salvage of Aircraft at
Sea Convention, 1938" provides for an indemnity payable by the
operator of the aircraft assisted, and for remuneration in case of salvage
also payable by the operator of the aircraft, but no provision is included
giving a lien against the aircraft such as would exist in maritime law
against a vessel for which salvage services had been rendered.5
As further indication that international air law has developed in
the general direction of denying that aircraft are responsible in
private law as are vessels, it should be noted that Article 23 of the Paris
Convention provided that with regard to the salvage of aircraft wrecked
at sea "the principles of maritime law will apply in the absence of any
agreement to the contrary," and in the Pan American Convention it
was provided that "the salvage of aircraft lost at sea shall be regulated,
in the absence of any agreement to the contrary, by the principles of
maritime law." 59 But the Chicago Convention omits any reference
to salvage. If it be said that Article 23 of the Paris Convention and
Article 26 of the Pan American Convention indicated an intent to
adopt the general principles of salvage, including a lien against the
aircraft or cargo which had been salved, the omission of these
provisions from the Chicago Convention and the signature at Brussels in
1938 of a specific convention applicable to salvage omitting any claim
for lien against the aircraft is adequate evidence that no such lien now
exists in international air law.
The characteristic lien against a vessel for damages caused by it
when in collision with another vessel also does not apply to aircraft.
As authoritatively stated by McNair, collisions between aircraft are
governed by principles applicable to torts generally.6 0 Even in the case
of damage to a ship caused by an aircraft, though the admiralty court
might have jurisdiction, no maritime lien would attach to the
aircraft. The action "on behalf of the ship against the person responsible
for the aircraft would be in personam and could not lie in rem."6' 1 In
the draft convention "for the Unification of Certain Rules Relating
to Aerial Collisions," 62 now pending before the Legal Committee of
the International Civil Aviation Organization, provision is made for
the payment of an indemnity by the operator of the aircraft
responsible in case of collision between aircraft. No provision is made for a
lien against the aircraft itself irrespective of the indemnity due by the
operator. The principle of responsibility of the aircraft as a legal
quasi-personality is entirely absent in the draft convention on collision
just as it is also absent in the salvage at sea convention applicable to
aircraft signed at Brussels in 1938 and discussed above.
The Convention on "the International Recognition of Rights in
Aircraft" signed at Geneva in 1948 provides the first recent (and very
limited) international legislation for what might be called
responsibility of aircraft. In Article 4 of that convention it is provided that in
the event that any claims in respect of compensation for salvage or
extraordinary expenses give rise "under the law of the Contracting
State where the operations of salvage or preservation were terminated,
to a right conferring a charge against the aircraft, such right shall be
recognized by Contracting States and shall take priority over all other
rights in the aircraft." Such rights may be noted on the record within
three months and shall not be recognized by other contracting States
59 For the possible effect of these two conventions, had they remained in
force, see: Arnold W. Knauth, "Aviation and Salvage: The Application of
Salvage Principles to Aircraft," Columbia Law Review, Vol. 36, 1936, p. 234.
60 McNair, op. cit. p. 99.
61 Ibid. p. 102.
62 International Civil Aviation Organization, Legal Committee,
Sub-committee "Rome," Working Draft No. 27, May 27, 1949, p. 17.
after expiration of the three months period unless the right has been
noted on the record and the amount has been agreed upon or judicial
action on the right has been commenced.63 It would appear that this
convention will give international force to compensation due for
salvage or preservation services if the State in which such operations are
completed creates a lien against the aircraft for such charges, and
provided the claimant carries out the technical requirements of
recording the claim in the State of the registry of the aircraft and proceeds
to enforce it as required by the convention. The inclusion of these
provisions seems conclusive proof that international air law generally
does not recognize responsibility of the aircraft for such claims.
4. CONCLUSIONS AND RECOMMENDATIONS
From the foregoing it is submitted that aircraft, like vessels, and
unlike railway trains and automotive vehicles, now have that quality
of legal quasi-personality in public international law discussed above
as nationality, but that unlike vessels, and like railway trains and
automotive vehicles, aircraft are not yet considered as having the quality
of personal responsibility in private law. The legal status of aircraft
is therefore sui generis and places them in a class apart from other
instrumentalities of commerce.
Resulting from the acceptance into international air law of the
nationality of aircraft, certain cognate problems require solution. As
to the first of these - whether the distinction between state and civil
aircraft in the Chicago Convention is sufficient - it is submitted that
the solution there presented should be allowed to stand unless and
until international practice indicates that confusion has resulted. No
such evidence is at this time available. As to the treatment to be
accorded State aircraft when in foreign territory, it is likewise submitted
that no additional international legislation is at this time needed. The
Chicago Convention provides that no state aircraft, whether military,
customs or police, may enter foreign territory except under special
authorization. No good reason seems to exist as to why such
authorizations cannot from time to time determine the extent to which such
state aircraft may be exempt from local jurisdiction when entering
such foreign territory, although this question deserves further study.
But the general question as to the conflict of competence of the
courts and applicability of laws of the State of the flag of the aircraft
and other States does require solution. This must be found in new
68 For text of the convention and an excellent analysis of the difficult
problems created by these provisions, see: Nathan G. Calkins, Jr., "Creation and
International Recognition of Title and Security Rights in Aircraft," Journal of
Air Law and Commerce, Vol. XV, 1948, pp. 156-181, and Text of the Convention
at page 348 of Vol. XV. Richard 0. Wilberforce, "The International Recognition
of Rights in Aircraft," InternationalLaw Quarterly,Vol. 2, 1948, pp. 421-458.
Some of these matters may be discussed at the meeting of the
International Law Association to be held in Copenhagen in August 1950.
In preparation for that meeting, the American Branch of the
Association has adopted, among others, the following recommendations:
a) that the question of the legal status of aircraft and interna
tional law problems arising therefrom be the subject of further
study by the International Law Association and its Committee
on Air Law;
b) that this study include the question of whether or not the
Chicago Convention should be amended so as to provide a
uniform basis internationally for the registration of aircraft, or
whether the convention should be left as now drafted so that
each State may determine for itself the conditions and legal
requirements to be fulfilled by aircraft registerd in such
Statesuch conditions as to the status of persons applying for
c) that this study include the question as to whether agreements
should be made internationally as to the status of aircraft
operated by international agencies or other "stateless aircraft";
d) that an international convention should be drafted and adopted
to cover conflicts arising in the jurisdiction of courts and the
law applicable to occurrences on board aircraft;
e) that the draft convention recommended by the International
Law Association at Buenos Aires in 1922 and at Stockholm in
1924 be used as the basis for the preparation by the
International Law Association of a modernized draft;
f) that the International Law Association call to the attention of
the International Civil Aviation Organization the need for such
a convention and offer to cooperate in its final preparation.
1Harvard Research in International Law-Nationality, in: American Journal of InternationalLaw , Vol. 23 , 1929 , Supplement, pp. 13 , 22 .
2 Gilbert Charles Gidel , Le Droit internationalpublic de la mer, Chateauroux, Les 6tablissements Mellott6e , 1932 - 34 , Vol. 1 ( 1932 ), p. 72 .
3 Charles Cheney Hyde , International Law . .2 ., d rev. ed., Boston, Little Brown, 1945 , Vol. 1 , Sec . 243A, p. 809 .
8 The United States v . The Cargo of the Brig Malek Adhel , ( 1844 ), 2 Howard (43 U.S.) 210 , pp. 233 - 234 .
9 The China ( 1868 ), 7 Wallace (74 U.S.) 53 , p. 68 . See also: The Bold Buccleugh , 7 Moore, P.C.C. 267 .
10 The Western Maid ( 1922 ), 257 U.S. 419 , p. 433 .
11 See: (1) Convention with Respect to the International Circulation Motor Vehicles , Paris, October 11, 1909 , in: U.S. Dept. of State, Treaty Infoorf-° mation Bulletin , No. 13 , October 31 , 1930 , pp. 25 - 36 ; Br. and For . St. Papers , Vol. 102 , p. 64 ; (2) International Convention Relative to Motor Traffic, Paris, April 24, 1926 , in: Treaty Information Bulletin, op. cit. pp. 36 - 55 ; Manley 0. Hudson, International Legislation, Washington, Carnegie Endowment for International Peace, 1931 , Vol. 3 , pp. 1859 - 1872 ; (3) Convention on the Regulation of Automotive Traffic , Washington, October 6, 1930 , in: Treaty Information Bulletin, op. cit. pp. 20 - 24 ; Hudson, International Legislation, op. cit . Vol. 5 , pp. 786 - 792 ; (4) Convention on Inter-American Automotive Traffic , Washington, December 15 , 1943 (Treaties and Other International Acts Series 1567).
12 Text of this agreement is given in Erwin Riesch, "Das erste Luftfahrtabkommen der Welt," Archiv fir Luftrecht , Vol. 10 , 1940 , p. 41 .
1sJames Brown Scott , ed., The Hague Conventions and Declarations of 1899 and 1907 , New York, Oxford Univ. Press, London/Toronto et al., H. Milford , 1915 (Carnegie Endowment for International Peace, Division of International Law, Washington, D. C.).
14 Paul Fauchille , Le Domaine adrien et le regime juridique des adrostats , Paris, A. Pedone, 1901 . Also in: Revue g6ndrale de droit internationalpublic, Vol. 8 , 1901 , pp. 414 - 485 . Text at p. 471 .
15 Annuaire de l'Institut de droit international,Vol. 19 , 1902 , pp. 19 - 86 .
16 Ibid . Vol. 23 , 1910 , p. 305 .
17 Karl Hilty , "Die v6lkerrechtlichen Gebriiuche in der atmosphlirischen Zone," Archiv ffir bffentliches Recht , Vol. 19 , 1905 , pp. 87 - 94 ; Friedrich von Grote, Beitrilge zum Recht der Luftschiffahrt , Borna-Leipzig, R. Noske , 1907 , pp. 22 - 23 ; Alex Meyer, Die Erschliessung des Luftraumes in ihren rechtlichen Folgen, Frankfurt a . M., Gebrilder Knauer , 1908 , pp. 26 - 33 ; Friedrich Meili, Das Luftschiff im internen Recht und Vdlkerrecht, Zurich, 0 . Ffissli, 1908 , pp. 10 - 52 ; Edgar Daus, Die Luftschiffahrt in staats--undv6lkerrechtlicher Hinsicht,
28 Annuaire de l'Institut de droit international,Vol. 24 , 1911 , p. 117 .
29 Spaight, op. cit. p. 203 .
80James Molony Spaight , Air Power and War Rights , 3d ed., London/New York/Toronto, Longmans Green, 1947 , pp. 420 - 428 .
81 Henry Woodhouse , Textbook of Aerial Laws . .. , New York, Stokes, 1920 , p. 12 ; Brower V. York , "International Air Law in the American Republics," ournal of Air Law and Commerce , Vol. 3 , 1932 , p. 415 .
82 Institut Am6ricain de droit international, Acte final de la session de la Havane, 22 - 27 janvier 1917 , Resolutions et projects , New York et al., Oxford Univ. Press, 1917 , p. 92 .
35 International Law Association , Report of the 29th Conference , Portsmouth, 1920 , London, Sweet & Maxwell, 1920 , p. 396 .
36 Hudson, InternationalLegislation, op. cit. , Vol. 3 , pp. 2019 - 2032 .
87 Ibid . Vol. 4 , pp. 2354 - 2369 .
85 For text of The Hague air rules of 1923, see: Kenneth W . Colegrove, International Control of Aviation , Boston, World Peace Foundation, 1930 , Appendix VI , pp. 211 - 223 ; Spaight, Air Power and War Rights, op. cit. pp. 498 - 508 .
57 Thomas Watson v. R.C.A. Victor Company, Inc., Great Britain , Aberdeen Sheriff Court, October 31 , 1934 , 50 L1.L.R. 77 , cited in: U.S. Aviation Reports, 1935 , pp. 147 - 156 .
58 For text of the Brussels aircraft salvage convention , see: Hudson, International Legislation, op. cit . Vol. 8 , pp. 135 - 147 ; Christopher N. Shawcross and Kenneth M. Beaumont , Air Law, London, Butterworth, 1945 , Secs. 794 - 810 , pp. 405 - 409 ; U.S. Aviation Reports, 1938 , pp. 253 - 273 .