[PUBLIC LAW 766-77TH CONGRESS]

[CHAPTER 632-2D SESSION]
[S. 2693]

AN ACT To provide for the instruction of meteorological students in weather forecasting Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of Commerce is authorized, within the limits of available appropriations made by the Congress, to establish and provide not to exceed fifty scholarships annually for furnishing instruction and training in weather forecasting technique for students of meteorology. Such instruction and training shall be secured by contracts for tuition and laboratory charges only with educational institutions which offer accredited graduate professional courses in meteorological science. Such scholarship students shall be selected pursuant to such regulations as to desirable qualifications, ability, and aptitude for weather forecasting as the Weather Bureau, Department of Commerce, may from time to time prescribe, including regulations requiring students participating therein to agree to enter Government employ as meteorologists in the Weather Bureau or as officers in the military services after graduation and completion of training. No scholarship shall be granted under this Act after the termination of the wars in which the United States is now engaged or such earlier date as the Congress by concurrent resolution may fix, and any contract or other obligation entered into under this Act shall expire not later than one year after such termination or such earlier date, as the case may be: Provided, That no alien shall receive training under the provisions of this Act. There is hereby authorized to be appropriated such sums as may be necessary to carry out the provisions of this

Act.

Approved October 29, 1942.

NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS PROJECTS

In section 36 of the bill appearing at page 44, there is a provision whereby the Civil Aeronautics Board and the Administrator would be directed from time to time to make recommendations to the National Advisory Committee for Aeronautics concerning research projects which might most effectively contribute to the safety and efficiency of civil aeronautics. Since the concentration of matters relating to civil aeronautics in the hands of the Civil Aeronautics Board and the Administrator, it seems appropriate that these agencies be directed from time to time to advise the N. A. C. A. concerning projects which would be most useful to civil aeronautics development. The civilian representation of the N. A. C. A. is itself a recognition that its activities are to contribute to the development of the civil phases of aeronautics. And it is interesting that in a memorandum from the Smithsonian Institution transmitted to the Senate Committee on Naval Affairs in February 1915, printed as Senate Document No. 797, Sixtythird Congress, in which the Institution recommended the creation of the N. A. C. A., we find this conclusion expressed:

At the present time the thought of aviation is in connection with war; but there is no appropriate reason why, as in the case of the automobile, the flying machine will not be of far greater service in peaceful pursuits than in

war.

(See p. 9.)

Elsewhere in the same memorandum the civil possibilities of aeronautics are similarly recognized. And the consistent record of the N. A. C. A. ever since its creation has amply justified the original thought that its work might contribute greatly to the development of the science of flight for civil purposes. There is, of course, nothing now to prevent the Civil Aeronautics Board or the Administrator

from making recommendations to the N. A. C. A., but in view of their peculiar responsibility respecting civil aeronautics, it would seem most appropriate that in the aeronautical code there should be recognition of this function and that they should be encouraged to invite to the attention of the N. A. C. A. projects which would most effectively contribute to the furtherance of the civil aspects of the N. A. C. A.'s outstanding work

WORKMEN'S COMPENSATION

In section 56 of the bill beginning at the bottom of page 51 it is provided that the Civil Aeronautics Board may adopt regulations which will govern the choice of law, as between the laws of different States. for the determination of workmen's compensation liability. A provision along these lines would seem to be entirely saiutary. Again, because of the mobility of the air transport industry and the number of different States in which a given air line operates, the matter of the choice of law with respect to workmen's compensation is of considerable importance. The industry has already had some experience which has been unfortunate. It has been found, for example, that although an air line had qualified under the workmen's compensation law of one State, it was later held that it should likewise have qualified under the law of another State and, in default of doing so, it lost all protection in accident occurring in the other State. With the possibility of operations being conducted through many different States at many different times, it would be highly desirable that the Civil Aeronautics Board have the power proposed in order that the carriers and their employees may be able to tell ahead of time which law would apply under given circumstances.

POWER TO ASSURE ORDER AND SAFETY ABOARD AIRCRAFT

Section 57 of the bill appearing at pages 52 to 53 would insert in the Civil Aeronautics Act a new section 1102 which would be a very wise addition. At the present time the person in command of an aircraft apparently has no clear legal authority even to require passengers to fasten their seat belts, to say nothing of authority to impose such other regulations upon passengers which might be necessary in the interests of safety or to jettison cargo where necessary to save human life. This section would confer such authority. As the section is now worded, the authority would be conferred upon the pilot or the copilot. It is suggested that the person having such authority should be described as the person in command of the aircraift since, in the near future, it is entirely likely that in many cases some person other than the pilot or copilot, as we now know him, might be the officer in command.

(1) We have that today on clipper ships.

(2) Make it like the commander of a ship at sea.

With aircraft operating high in the air and perhaps far from land extraordinary authority of this nature is necessary. There occasionally have arisen cases, even in our limited experience thus far, where extraordinary steps had to be taken in order to preserve order on board the aircraft and to avoid disaster. There should be no doubt whatsoever as to the legal authority to take whatever steps may be required.

LIABILITY

Section 58 of the bill, beginning at page 53, sets forth a proposed new act to be called the Air Carriers Liability Act.

This is a subject which has received elaborate study by a number of different agencies in the last few years. It is a matter of historical interest to observe that this committee, in the legislation it proposed prior to the adoption of the Air Commerce Act of 1926, actually prepared a bill and favorably reported it to the House which would have included certain provisions governing the liability of common carriers by air. The report of this committee in 1925 was made at a time when there was no such thing as an airline. Nonetheless the committee showed its awareness of the general problem at that early date, and as the years have passed increasing attention has been given to the matter.

The most recent expression is to be found in the report of the House Select Committee to Investigate Air Accidents to which I have referred on a number of occasions. The committee refers to the matter at pages 36 and 44 of its report and recommends Federal legislation. Between the report of this committee in 1925 and the report of the Select Committee issued last month, the Civil Aeronautics Board, the Commissioners on Uniform State Laws, the American Bar Association, the air-line industry, and many others have studied the question at length. A staff report has been prepared for the Civil Aeronautics Board which examines the subject at length. This report was made public and it will undoubtedly assist the committee.

Our international aviation is already subject to special legislation on this matter in cases where our international air lines operate from this country to other nations which are parties to the Warsaw convention. That convention was concluded in 1929 and was adhered to by our country in 1934. It sets forth the international standard governing liability to passengers and shippers on the part of air carriers. The proposal before the committee is, in effect, a combination of the principles of the Warsaw convention applicable to our international operations and the principles of the Carmack amendment applicable to our rail transportation. In general, the proposal places definitely upon the aircraft operator the burden to show freedom from all negligence with a limitation on liability somewhat higher than the limitation in effect under the Warsaw convention. As the House select committee has pointed out in its report and as has been forcefully brought out in numerous other exhaustive studies of the subject, the situation at present under the laws of the different States results in great diversity of standards and regulations. It would appear eminently desirable to adopt a Federal act along the lines proposed.

The subject, of course, is a highly technical one and undoubtedly further study should be devoted to the provisions proposed in the bill. The proposal in the bill includes nothing on the subject of liability to persons or owners of property on the ground. This matter is dealt with internationally in the Rome convention which has never been ratified by this country. It is suggested, however, that careful consideration be given by the committee to the desirability of adopting Federal legislation which would regulate ground liability as well as liability to passengers and shippers. In the staff report made to the

Civil Aeronautics Board, to which I have referred, there is included a very full analysis of the problem of ground liability. In its further investigations the committee may wish to give favorable consideration to appropriate legislation on that subject.

So much has been said and written about this problem that I can add very little at this time. I would, however, appreciate the opportunity to submit more detailed suggestions which our industry is now endeavoring to work out for your study.

RAILWAY LABOR ACT

The final section of the bill appearing at pages 66 to 67 contains a small amendment to title II of the Railway Labor Act. That title, as you know, places air carriers under the labor legislation included in the Railway Labor Act. While it seems perfectly evident from the present law that all employees of an air carrier are intended to be subject to that act, whether or not they are actually engaged in air transportation, it would appear desirable to adopt a clarifying amendment so that there can be no question at all but that the industry's labor relations are all subject to the one statute. The proposed amendment is somewhat similar to the language used in connection with the definition of employees subject to the Railroad Retirement Act. Whatever language may be adopted should be as broad as possible. It would be an absurdity were it ever to be held that different employees of the industry are subject to different labor legislation. Any such result, I am sure, would be contrary to the intention of Congress, and the suggested amendment included in this bill would put at rest any possible question.

AERONAUTICAL CODE

If legislation along the lines of H. R. 1012 is adopted, a further step will have been taken toward bringing together within either a single statute or a very limited number of statutes all statutory provisions affecting civil aeronautics. While, perhaps, of no great practical significance, it would be highly desirable were the Congress to adopt and adhere to a definite civil aeronautical code within which all laws affecting civil aeronautics would appear.

Consideration, therefore, might be given by the committee to further amendments to the Civil Aeronautics Act which would have the result of moving into the framework of that act the remnants of statutes still existing elsewhere dealing with civil aeronautics. It will be recalled that while the Civil Aeronautics Act itself was a far-reaching step toward the adoption of such an all-inclusive civil aeronautics code, it nevertheless did leave in effect certain other statutes applicable to civil aeronautics, such as certain provisions of the Air Commerce Act of 1926. It would be a constructive step for this committee now to consider moving all such legislation into the Civil Aeronautics Act itself. Similarly, certain other statutes of general application which in one way or another affect air carriers might be so treated.

Our attorney, Mr. Howard C. Westwood, has prepared a number of legal memoranda on some of the constitutional questions involved in connection with several of the provisions of this bill. Mr. Westwood will be glad to furnish those memoranda to you for your record and

to discuss any of such questions in which you may have a particular interest.

May I suggest that perhaps you may care to have the briefs inserted at this point in the hearings. Also, Mr. Westwood is now in the room and available for questioning or testimony either now or later.

(Herewith Mr. Howard C. Westwood submitted the following discussions of the questions indicated:)

REGULATION OF INTRASTATE COMMERCE IN THE AIR SPACE

1. Air space a highway for interstate and foreign commerce.

In two reports on the bill which became the Air Commerce Act of 1926 the House Committee on Interstate and Foreign Commerce has already passed judgment on the constitutional question involved in proposed extension of Federal regulation throughout the air space. In House Report No. 1262 (68th Cong.), on January 20, 1925, and again in House Report No. 572 (69th Cong.), on March 17, 1926, this committee said:

"The declaration of what constitutes navigable air space is an exercise of the same source of power, the interstate-commerce clause, as that under which Congress has long declared in many acts what constitutes navigable or nonnavigable waters. The right of flight in the navigable air space owes its source to the same constitutional basis which, under decision of the Supreme Court, has given rise to a public easement of navigation in the navigable waters of the United States, regardless of the ownership of the adjacent or subjacent soil."

The committee's statement concerning the Federal Government's constitutional power respecting the air space is at least as sound today as it was in 1925 and 1926.

The Constitution, it is true, does not state in so many words that the Congress may regulate the use of the air space. However, neither does it state that the Congress may regulate the use of navigable waters. The power of Congress to regulate navigable waters springs solely from the commerce clause, that is, the power to regulate commerce among the States. The reason that Congress has plenary power with respect to navigable waters is as expressed by the Supreme Court in The Daniel Ball (10 Wall. 557 (1870)), that such waters "are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted

*

* * "

Having asserted that the navigable waters are highways which are used for commerce among the States, or can be used for such commerce, the courts have gone further and have asserted that Congress has full power to regulate any use of such waters. In United States v. Appalachian Electric Power Co. (311 U. S. 377 (1940)), the Court held that this power under the commerce clause exists whether or not the particular waterway is actually used for the flow of interstate traffic. Indeed, the full regulatory power of Congress applies even though artificial improvements are necessary in order to make the waterway suitable for use. As the Supreme Court put it:

"Nor is it necessary that the improvements should be actually completed or even authorized. The power of Congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic" (311 U. S. at 408).

Moreover, this power under the commerce clause is not limited to regulations necessary to promote navigation. What the Court has held is that, in effect, any commercial use of the waterways, whether for generating power or for any other commercial activity, however local, is subject to the regulatory power of Congress. The Court has summed up its position in these words:

"The point is that navigable waters are subject to national planning and control * * *" (311 U. S. at 426).

Since, therefore, as this committee held in its 1925 and 1926 reports, the power of Congress with respect to the air space is the same as its power with respect to the navigable waterways, it follows that Congress has the power to regulate all use of the air space.

In other words, Congress can fully regulate use of the air space simply because the air space is either used or is susceptible of use as a medium for commerce among the States.