Aviation Law Comes Home to the Main Street Lawyer
TO THE MAIN
JOHN C. COOPER
Over the past two decades many ambitious young men have asked, "What should
I study to become an aviation lawyer?" Even ten years ago I tried valiantly to
answer and felt I had done so fairly well. Now I am not so sure.
Whether such a subject for separate study as "aviation law" exists seems now a
very debatable question. Aviation is nothing more than another form of
transportation-aircraft the mobile instruments employed, airports; the passenger and freight
stations or docks used. The legal principles applicable to aviation generally, and
air transport, particularly, range through the old student categories of contracts,
torts, personal property, real property, etc., with, however, occasional jolts from
unexpected and somewhat concealed statutory, regulatory or treaty provisions. And
it is the average practitioner at the bar, rather than the student or specialist, who
may get the jolt.
Comparatively few companies are engaged solely in aviation-manufacturing or
transport. If consolidations continue, as will probably occur, such companies will be
fewer and not more. The number of lawyers on their staffs will always be limited.
But as aviation continues to grow and air transport becomes a more integral part of
the normal life of the business and social world, lawyers in the big cities and the
small towns will more and more frequently be called on to advise their regular
clients on its problems-and a "crack-up" may well result. The purpose of this
article is to point out a few of the danger signals.
It seems only yesterday that I first read an advance sheet copy of the opinion of
the U. S. Supreme Court in Adams Express Co. v. Croninger.' The intervening 32
years have never quite effaced the mental shock. It happened to be my first
experience, in practical form, of the ability of Congress under the "Commerce Clause" to
take over a field inolving everyday business relationships (in that case, between
shipper and common carrier) and set aside completely the common law and state
statutes as I had known them. Certain statements of the court have always remained
* A.B., igo9, Princeton University. Member of the Institute for Advanced Study,. Princeton, N. J.,
1945-. In private law practice, 19'1-1934. Vice-President, Pan American Air Ways, 1934-1945.
Chairman, Committee on Aeronautical Law of American Bar Association, 1932-1935. President, Florida State
Bar Association, 1931. Chairman of Executive Committee of International Air Transport Association.
Member of the Florida and U. S. Supreme Court Bars, American Law Institute.
1 226 U. S. 491 (913).
"The question upon which the case must turn, is, whether the operation and effect of
the contract for an interstate shipment, as shown by the receipt or bill of lading, is
governed by the local law of the State, or by the acts of Congress regulating interstate
"That the constitutional power of Congress to regulate commerce among the States
and with foreign nations comprehends power to regulate contracts between the shipper
and the carrier, of an interstate shipment by defining the liability of the carrier for loss,
delay, injury or damage to such property, needs neither argument nor citation of authority.
"But it is equally well settled that until Congress has legislated upon the subject, the
liability of such a carrier, exercising its calling within a particular State, although engaged
in the business of interstate commerce, for loss or damage to such property, may be
regulated by the law of the State. Such regulations would fall within that large class of
regulations which it is competent for a State to make in the absence of legislation by
Congress, growing out of the territorial jurisdiction of the State over such carriers and its
duty and power to safeguard the general public against acts of misfeasance and
nonfeasance committed within its limits, although interstate commerce may be indirectly
"That the legislation supersedes all the regulations and policies of a particular State
upon the same subject results from its general character. It embraces the subject of the
liability of the carrier under a bill of lading which he must issue and limits his power to
exempt himself by rule, regulation or contract. Almost every detail of the subject is
covered so completely that there can be no rational doubt but that Congress intended to take
possession of the subject and supersede all state regulation with reference to it. Only the
silence of Congress authorized the exercise of the police power of the State upon the
subject of such contracts. But when Congress acted in such a way as to manifest a purpose
to exercise its condeded authority, the regulating power of the State ceased to exist. '3
Congress having intervened and by Federal regulation occupied the field, woe to
the lawyer who thereafter advised his client based on his predetermined views of the
common law, or the statutes of his state.
And so my first advice to the average practitioner at the bar is this: If a client
wants advice, or is involved in litigation concerning aviation in any of its phases,
postpone your decision until you re-read the "Civil Aeronautics Act of I938"'
(assuming that you have ever read it). In that act, Congress has quite effectively taken
over the regulation of many of the phases of aviation.
that may be found rather surprising.
Suppose, for example, that you represent a local bank in a small county seat.
Your client undoubtedly makes occasional loans on chattel mortgages. The bank
has a customer who has purchased an airplane to use locally, for instance in dusting
farm crops in the vicinity. The customer needs some funds for further business
expansion and offers his airplane as security. The bank approves the loan, sends
the customer to you to draw the chattel mortgage. This is done. You search the
records at the courthouse, find no judgments against the customer, approve the loan
And this is true to an extent
2 1d. at 499-500. 'Id. at 505-506.
4 52 STAr. 973 (1938), 49 U. S. C. (1940 ed.) §4o et seq.
and advise the bank to record the chattel mortgage under your state statute just as
would be done on farm machinery, or other similar collateral. All goes well until
a few months later when the bank hears that the customer has had some disastrous
losses and a petition in bankruptcy has been filed against the customer by creditors
in an adjoining county. Then your troubles begin.
The attorneys for the unsecured creditors challenge the bank's mortgage,
claiming that the creditors had no actual knowledge of its existence, and citing Sec. 5o3(b)
of the Civil Aeronautics Act5 as follows:
"(b) No conveyance made or given on or after the effective date of this section, which
affects the title to, or interest in, any civil aircraft of the United States, or any portion
thereof, shall be valid in respect of such aircraft or portion thereof against any person
other than the person by whom the conveyance is made or given, his heir or devisee, and
any person having actual notice thereof, until such conveyance is recorded in the office of
the secretary of the Authority. Every such conveyance so recorded in the office of the
secretary of the Authority shall be valid as to all persons without further recordation.
Any instrument, recordationof which is required by the provisions of this section, shall
take effect from the date of its recordation, and not from the date of its execution."
The chattel mortgage not having been recorded with the Civil Aeronautics
Authority in Washington, the validity of the lien is certainly open to serious attack
by the unsecured creditors having no actual notice of its existence. In the absence
of any decision which has yet come to my knowledge, I suspect that the bank will
lose its lien and that you will lose a client. (Any views to the contrary will be
welcome-there was a time when I represented a bank.) In any event, be safe and
record any instrument affecting title to an aircraft with the CAA in Washington.
Assuming that you weathered that jolt (or knew the answer in advance) and
still represent the bank, your troubles are not yet over. This time the bank decides
to lend some money on a nice real estate mortgage. A new airport is being laid
out in a nearby town and a customer of the bank owns adjoining property which
appears suddenly valuable. The customer has a very bright idea. New
airportnew travelers into that part of town-hotel needed-in fact, a nice four-story brick
hotel. The plans are drawn, and the bank will loan the money. All you do is to
approve the title for the bank or the local title insurance company. You search the
records and everything is clear. The mortgage is closed. The bank's customer lets
a firm building contract and construction on the hotel starts-and suddenly stops.
An injunction has been served on the building contractor and the bank's customer,
owner of the property. Then everyone becomes very unhappy-the contractor, the
owner, the bank, and particularly you. For the injunction papers disclose the fact
that the location of the customer's hotel is directly in line with the end of what will
be the most used runway on the airport, that the thoughtful municipal authorities
coincident with establishing the airport had adopted a local zoning ordinance
limiting the height of structures adjacent to the airport-and that the hotel as planned
r52 SrAT. xoo6 (1938), 49 U. S. C. (1940 ed.) §523(b).
AVIATION LAW TO MAIN StR
violate the zoning regulations. The fact that you never heard of this regulation'
is not going to help very much. When you examine the cases and the textbooks,6
you find that the ordinance is probable valid as a "reasonable exercise of the police
power of states and local governments," 7 that no compensation can be collected by
the landowner-and that he is probably going to be sued by the building contractor.
What happens to the banker and you, his lawyer, is fortunately not my worry. This
is written in the shadow of scholastic quiet where such matters seem far away.
An examination of the Civil Aeronautics Act might possibly have been helpful.
For you would have found that the Federal government had not sought to regulate
airport zoning, even could it practically or constitutionally do so. The field was
therefore left to the state or local governments, as the case might be. And the moral
is-wherever you see an airport, be sure to find out the status of restrictions on the
use of nearby real property before you approve another mortgage or accept a tide.
But these difficulties are quite simple compared to another field into which you
as a lawyer with a normal general practice may unexpectedly be plunged. Few of
us have not at times been called on to advise a client on the right to or extent of
recovery arising from the death of or injury to a passenger, or damage to or loss of
baggage or cargo. If the carrier involved is an air carrier, you will be very wise to
determine immediately whether the transportation in question involved directly or
indirectly actual or intended carriage beyond the forty-eight states of the continental
United States. If you fid that a simple intrastate or interstate movement is alone
to be considered in connection with the accident or loss involved, you have (as yet)
no general Federal statutory intrusion into the field of procedure or right of recovery
normally covered by your state statutes or decisions. You will note, I stated "as yet."
Actually, legislation is now pending in the Congress which, if passed, might change
the situation to some extent.
But if, in getting the facts from your client, you find that the air transport
movement in question involved a trip or shipment actually or intended to extend beyond
the forty-eight states, quite a different situation must be faced. You must deal with
an almost unique situation in our jurisprudence in which the Constitution of the
United States, and the treaty making power delegated through it to the Federal
government, have preempted a field of commercial relations and thereby set aside all
common law or state statutory rights and remedies otherwise applicable.
The provisions of Article VI, paragraph 2, of the Constitution are, or were in
student days, familiar to us:
"This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof and all Treaties made, or which shall be made, under the Authority of
the United States, shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any thing in the Constitution or Laws of any State to the
6 RHYNE, AIrpORTS AND TnE CouRT-s (1944). See also Hunter, The Conflicting Interests of Airport
Owner and Nearby Property Owner, supra this symposium, p. 539.
1 RHYNE, supra note 6, at 189.
But the effect of this provision, so far as a treaty being part of the "supreme Law
of the Land" is something which is not often brought home to the average lawyer.
Briefly, the signature of, or adherence to, a treaty by the United States, and
subsequent ratification, without further act of Congress can quite effectively amend
prior inconsistent Federal legislation and set aside all conflicting state statutes. And
this is exactly what has occurred in reference to the rights and remedies of
passengers and shippers in international air transport.
In 1943 the United States by adherence under the constitutional procedure
applicable became a party to and hence bound by the so-called "Warsaw Convention,"
more formally known as the "Convention for the Unification of Certain Rules
Relating to International Transportation by Air."8 Before you ever advise another
client on the rights of passengers and shippers against an air carrier, read the treaty
very carefully. Otherwise, you will get a most unexpected and unpleasant jolt.
Because without an accurate understanding of its provisions, you cannot possibly
decide what constitutes "international transportation" by air, nor the rights of your
The Warsaw Convention was signed at an international conference held in 1929,
at which most of the principal nations of the world were represented, except the
United States. It was part of a general international program initiated at an earlier
conference in Paris in 1925, having for its object uniformity of private air law
throughout the world. The advisability, if not necessity, of such uniformity is
obvious. And a series of multilateral treaties, each dealing with one subject, was
wisely determined to be the only sound method of attaining such international
uniformity. Later conferences were held at Rome in 1933' and at Brussels in 1938 to
consider other treaties in the contemplated series. But these have not yet been
ratified by the United States.
At the outbreak of World War II the Warsaw Convention was in force through
most of Europe (except Portugal), Australia, New Zealand, India, British, French
and Dutch colonies, Mexico and Brazil, as well as the United States. In the extent
of its territorial effect and importance of its subject matter, it takes first rank in the
various existing pieces of private international air law. If at any time you are in
doubt as to the extent of its coverage, the Department of State will furnish you
with a down-to-date list of the countries in which it is effective. Without this
information you are quite helpless to determine whether a particular cause of action
is or is not governed by its terms. For the convention, before setting out the
detailed rights of passengers and shippers and the liability of the carrier, thus defines
the scope of the convention and the term "international transportation":
"(i) This convention shall apply to all international transportation of persons,
bag,gage, or goods performed by aircraft for hire. It shall apply equally to gratuitous
transportation by aircraft performed by an air transportation enterprise.
' The official French text, with English translation will be found in U. S. Treaty Series 876, 49
STAT. 3000 (1936), Eng. trans. at 3014. Also in 1934 U. S. Av. R. 245.
' The writer of this article was chairman of the United States Delegation to the Rome Conference
AvIATION LAw To MAIN STREET LAWYER
"(2) For the purposes of this convention the expression 'international transportation'
shall mean any transportation in which, according to the contract made by the parties,
the place of departure and the place of destination, whether or not there be a break in
the transportation or a transshipment, are situated either within the territories of two
High Contracting Parties, or within the territory of a single High Contracting Party, if
there is an agreed stopping place within a territory subject to the sovereignty, suzerainty,
mandate or authority of another power, even though that power is not a party to this
convention. Transportation without such an agreed stopping place between territories
subject to the sovereignty, suzerainty, mandate, or authority of the same High
Contracting Party shall not be deemed to be international for the purposes of this convention.
"(3) Transportation to be performed by several successive air carriers shall be deemed,
for the purposes of this convention, to be one undivided transportation, if it has been
regarded by the parties as a single operation, whether it has been agreed upon under the
form of a single contract or of a series of contracts, and it shall not lose its international
character merely because one contract or a series of contracts is to be performed entirely
within a territory subject to the sovereignty, suzerainty, mandate, or authority of the
same High Contracting Party."10
An examination of the above provisions discloses among other things, the
(a) The convention applies equally to transportation for hire and to gratuitous
transportation. (Query: Does it thereby set aside the customary "no
liability" pass agreements?)
(b) The contract of carriage of the passenger or shipper, not the destination
of the aircraft, will determine whether the convention applies in a particular
case. Consequently, in an airplane scheduled from Country A to Country
B, thence to Country C, when A and C but not B are parties to the
convention, the airplane having crashed between A and B, passengers with
tickets to B as destination are not covered by the convention, while those
destined for C are covered.
(c) In an airplane scheduled from a point in Country A (party to the
convention) via a point in Country B (not a party to the convention), thence to
another point in A, passengers with tickets to B are not covered, while those
with tickets to the last stop in A are covered, although their departure and
destination points are in the same country. (Your client proceeding from
the United States by air to Alaska via a Canadian stop is covered. If the
flight to Alaska is non-stop, he is not covered!)
(d) Paragraph (3) above-transportation by successive carriers-is open to
varying interpretations-all difficult. Your client is proceeding from Chicago to
London via New York. The trip from New York to London is certainly
covered by the convention. He takes a ticket from Carrier X from Chicago
to New York, and requests Carrier X to make a reservation on Carrier Y
from New York to London. The passsenger is injured while a passenger
with Carrier X between New York and Chicago, an interstate operation.
But is the entire trip "regarded by the parties as a single operation" so that
the convention applies? Please do not quote me as advising you-you are
advising the client, and I am (again in the safety of scholastic quiet) simply
pointing out the danger signals.
Having decided that your client's case is covered by the convention, an
examination of its later technical provisions will disclose that it:
(a) Requires certain forms of passenger tickets, baggage checks, and air way
bills to be used by the carrier;
(b) Declares the carrier liable for death or injury to passengers, damage to or
loss of baggage or goods (as well as delay); but the carrier can rebut such
presumption of liability by proving that "he and his agents have taken all
necessary measures to avoid the damage or that it was impossible for him
or them to take such measures"; that as to goods and baggage, the carrier has
an additional defense if he proves "that the damage was occasioned by an
error of piloting, in the handling of the aircraft, or in navigation, and that
in all other respects he and his agents have taken all necessary measures to
to avoid the damage"; that the defense of contributory negligence will be
applied by the trial court under local law;
(c) Limits the liability of the carrier in terms of gold francs so that such
limitation is approximately $8,30o for death or injury of a passenger, and $16.6o
per kilogram for loss of or damage to goods or baggage;
(d) Makes void any agreement to relieve the carrier of liability or to fix a lower
limit than stated above;
(e) Prevents the carrier from limiting his liability if the damage is caused by his
"wilful misconduct" or that of his agent within the scope of his employment;
(f) Provides for the place at which acti 6 n may be brought and fixes a two-year
statute of limitation.
In no event should you rely on this summary. The convention is quite
technical and must be carefully read. The sole purpose here is to give you a very
general outline of its scope and importance. You will at least note, however, that
within its field, the treaty has fully taken over practically every important right or
remedy as between the carrier on the one side and passengers and shippers on the
Technically the treaty is self-executing. No statute was passed, nor was one
needed to put it into effect. As part of the "law of the land" under the
Constitution, it overrides and entirely displaces state statutes or decisions as fully as if it
had been enacted by Congress under the Commerce Clause of the Constitution. If
you have occasion to consider the Warsaw Convention in more detail, some of the
pertinent authorities are cited below. 1
"Wyman v. Pan American Airways, i8x Misc. 963, 43 N. Y. S. (2d) 420 (x943), afl'd 293 N. Y.
878, 59 N. E. (2d) 785, cert. den. 324 U. S. 882 (1945); Indemnity Ins. Co. of No. America v. Pan
American Airways, 58 F. Supp. 338 (S. D. N. Y. x,944); Garcia v. Pan American Airways, 269 App.
The three examples cited in this brief discussion include, as you have noticed,
one situation (created by certain provisions of the Civil Aeronautics Act) in which
Congress under the Commerce Clause, has preempted part of the "aviation law"
field; a second (airport zoning) in which it has left another part of the field to
state and municipal authorities; and a third (the Warsaw Convention) in which
the exercise by the Executive and the Senate of the treaty making power of the
United States has taken from the states still another part of the field.
If Congress should amend the Civil Aeronautics Act to include provisions for
interstate carrier liability similar to those applicable under the Warsaw Convention
to international operations, or if the Senate should ratify the Rome Convention as
to liability for damage to third parties on the ground, and the lesser known Rome
Convention which limits the rights to attach (prior to judgment) aircraft used in
international commerce, then additional parts of the aviation law field will be
removed from the states and be unified by Federal action. These are problems which
the average lawyer must understand if he is to advise a client whose rights or
remedies are affected.
This discussion has purposely omitted many problems, both statutory and
regulatory, which are of great importance but applicable largely to the practice of the
aviation law specialist, as, for example, such questions as obtaining certificates of
convenience and necessity by a carrier before engaging in air commerce, pilots' and
other airmen's licenses, safety regulations, etc. In all of these, and many other
technical sectors, Congress has by legislation or delegation of regulatory powers
preempted the field to the exclusion, more or less, of the states. But such questions are
not of the same day-to-day concern to the average lawyer. His problem arises
when aviation affects his client who is engaged in quite other lines of endeavor.
Perhaps these rather desultory remarks may save such a lawyer some future
Div. 287, 55 N. Y. S. (2d) 317 (1945), motion for leave to appeal to Court of Appeals granted, 56
N. Y. S. (2d) 526 (July IS, 1945); Grein v. Imperial Airways, Ltd.  2 A. . R. 1258, 52 T. L. R.
681, 155 L. T. 380, 1936 U. S. Av. R. 211; Latchford, The Growth of Pritate Interneaional A, Law
(945) 13 Gao. VsH. L. Rav. 276; Latchford, The Warsaw Convention and the C.LT.E.I.A. (1935) 6
J. oF AIR L. & CoM. 79; Orr, The Warsaw Convention (1945) 31 VA. L. RaV. 423; Sack, Intemationd
Unification of Private Law Rules on Air Transportation and the Warsaw Convention (1933) 4 AIR L
REV. 345; GOaDHuis, NATIONAL AIR LEGISLATION AN]D THE WARSAW CONVENTION (1937);
TONMBS,INTERNATIONAL ORGANIZATION IN EURoPFA AIR TRANSPORT (1936) 130-135.