gage or personal effects carried on aircraft not carrying passengers or goods for compensation. No insurance is required for loss or damage to baggage, personal effects or goods.

Absolute liability is imposed upon the owners of all aircraft for injuries or death to persons upon the ground and for damage to property upon the ground. Liability is limited to actual damage with a maximum of $10,000 for the death or injury of one person, and there is a maximum liability per accident for personal injuries or death based upon the horsepower of the plane. It runs from $20,000 for a plane of 200 or less horsepower to $100,000 for a plane of over 900 horsepower. Liability for property damage is limited to $5 for each pound of weight of the aircraft, and in on case to exceed $100,000 for one accident. Compulsory insurance against both property damage and personal injuries or death is required. If insurance is not carried, the liability imposed is unlimited, and there is a criminal penalty. Contrary to the provisions regarding passengers, the plaintiff has an option to sue the owner for negligence. In such a suit, the amount of recovery is unlimited. No insurance against this liability is required. As regards collisions, owners of aircraft are made liable to the owners, passengers, and employees of other aircraft involved therein upon the basis of negligence. Where a collision is caused by the negligence of two or more aircraft, liability is determined upon a comparative negligence basis. The owner of an aircraft in a collision is absolutely liable for injuries to his own passengers and goods carried and for injuries to persons or property on the land. He has a right over against other owners of aircraft in the collision for negligence, however.

II. FACTS AND FIGURES REGARDING AIRPLANE ACCIDENTS

Let us consider briefly the magnitude and character of the problem of aviation liability. The picture is necessarily fragmentary because facts and figures upon many questions of interest are not available.

It seems incontrovertible that the soclial importance of a question like aviation liability must be measured in terms of the total lives lost, persons injured, and property damaged. The relative importance of the question in comparison with the question of liability in the case of other forms of transportation must be measured by the total lives lost, etc., in the course of each mode of transport. Figures based upon the fatality rate per mile traveled give the relative risks of various forms of travel, but this is a different question from their social importance. For instance, the fact that the fatality rate per mile traveled by automobiles on the race track may be extremely high does not make the handling of liability for such fatalities a matter of great social moment.

For these reasons we include the following table from Vital Statistics-Special Reports, published by the Department of Commerce, Bureau of the Census, April 29, 1938, volume 4, No. 54, showing the total number of deaths occurring in the United States from the various types of transportation accidents.

1

It will be seen that fatalities from air accidents in 1936 were slightly less than 0.9 of 1 percent of the total deaths from transportation accidents. The problem is comparable in size to motorcycle fatalities. Moreover, it should be noted that these figures cover all fatalities including Army and Navy and employees and persons who operate their own planes. Such fatalities are not covered by the proposed act. The figures should first be reduced to eliminate military fatalities. The Civil Aeronautics Authority statistics show that total deaths from civil flying in 1936 were 333. In addition, Civil Aeronautics Authority statistics show that in 1936, 17 of the persons killed on scheduled air lines were employees. The 1936 figures show that as to other civilian flying, which the Authority classes as "private flying," there were 130 pilot fatalities and 6 crew fatalities. The great majority of these persons would either be employees or persons owning their own plane. Consequently, the 1936 fatalities throughout the United States which would come under the proposed act, were it passed in all States, is probably in the neighborhood of 170 persons. This figure includes passengers of planes not carrying passengers for compensation. Such persons would only be affected in a slight degree by the act. While it is impossible to state accurately the number of fatalities which would fall in this

1 The Civil Aeronautics Authority has superseded the Bureau of Air Commerce, which formerly published the aircraft-accident statistics.

category, a rough idea of them can be gained from the Civil Aeronautics Authority figure regarding passenger fatalities occurring in "pleasure flying." This figure for 1936 was 61.2

A clearer picture of our problem can be obtained by breaking down the aviation figures. The Civil Aeronautics Authority divides its accident statistics into two main classifications, (1) scheduled air transport and (2) private flying. The latter comprises student instruction, experimental, commercial, and pleasure flying. The following table gives figures taken from the statistics compiled by the Authority:

2 Comparison of accident statistics for railroads and for air transport should be made only with great care. The two industries at the present time are at entirely different levels of development. It should be remembered that in earlier years, the railroads were a far less safe form of travel than they are today. In 1907 the total number of railroad passengers killed in the United States was 610, instead of 41 as in 1936. (See Interstate Commerce Commission Accident Bulletin No. 105 (1937), p. 96.) As railroads have grown safer with the passage of years, so air transport is growing safer. Civil Aeronautics Authority accident statistics show that the passenger fatalities on scheduled air lines per 100,000,000 passenger miles flown were 28.57 in 1930, while in 1937 they dropped to 8.39less than one-third as many. As to other civil flying, the passenger fatalities per 100,000,000 passenger miles were 350 in 1928 and 109 in 1937-again less than one-third as many. The total number of accidents in the United States on scheduled air lines has gone down correspondingly. In 1929 there were 124 accidents. Whereas in 1937 there were only 42. This was in spite of the fact that during the same period the number of miles flown annually on scheduled air lines increased from 22,380,020 to 66,071,301. Furthermore, in any comparison with railroad statistics, care should be taken to include all persons killed by the railroads. The railroad situation, if taken as a basis of comparison, should not be considered in terms of passenger deaths only. Out of a total of 5,550 persons killed in steam railway accidents in the United States in 1936 only 41 were passengers. (See Interstate Commerce Commission Accident Bulletin No. 105 (1937), p. 96.) There were 720 employees killed. With these we are not concerned in this paper. Of the remaining 4.789 persons about 95 percent were trespassers and persons killed at grade crossings. (See Id., p. 1, chart 1.) Since the proposed act is aimed at all persons, exclusive of employees, killed in aircraft accidents whether in the plane or on the ground, comparison between rail and air fatality statistics should include persons hit by planes and trains as well as those aboard them. The Civil Aeronautics Authority accident statistics show that there were no aircraft fatalities on scheduled air lines to persons on the ground in 1936. Therefore, the social problem with which the proposed act is concerned, when considered as a whole, is far less acute than is the comparable social problem involved in railroad fatalities.

As to collisions of aircraft, we have only some Civil Aeronautics Authority figures of collisions, defined to exclude taxying, landing, or taking off. They are:

We have no way of knowing how serious the collisions were or how much damage was done in them. Because of the limited definition of collision, the above figures may not include all the collisions covered by article V of the proposed act.

Incomplete as is the picture given by the foregoing, it demonstrates clearly that the crux of the problem is passenger liability. Injuries to persons on the ground and collisions are relatively trivial matters.

We have gone into the above figures, not to make aviation appear safer than it really is, or to argue that the problem of its liability is so small that it does not deserve careful treatment, but rather to give a concrete idea of the size of the problem which this statute is intended to meet and to compare it with the problem presented by railroad and automobile accidents. Of course, it is important that the matter of aviation liability be carefully worked out. To the individual suffering loss it is vital that proper compensation be made quickly and simply. It should be realized, however, that the aviation problem comprises a very small fraction of the whole problem of transportation accidents and that since airlines actively compete with both railroads and automobiles, it is unfair to impose upon them a burden of liability which is out of line with that borne by railroads and automobiles.

III. LIABILITY LAW FOR OTHER FORMS OF TRANSPORTATION

Inasmuch as a bird's-eye view of the liability law of other forms of transportation will assist us in determining what is fair and wise for aviation, we shall summarize the railroad, automobile, and shipping law.

1. Railroads.

There is no Federal statute covering the question of railroad liability to passengers for injuries or death. The matter is ordinarily governed by the common law of the States. The general rule is that while the railroad is not liable as an insurer, it must exercise the highest degree of practicable care toward its passengers (Pennsylvania R. Co. v. Rogers, 244 Fed. 76; Central of Ga. Ry. Co. v. Robertson, 203 Ala. 358, 83 So. 102; and MacGilvray v. Boston Elevated Co., 229 Mass. 65, 118 N. E. 166).

Where a fare is paid, the general rule is that the carrier cannot free itself from liability for negligent injuries to passengers (Pittsburgh, etc. Ry. Co. v. Higgs, 165 Ind. 694, 76 N. E. 299, 4 L. R. A. (N. S.) 1081). The railroad can exempt itself from liability for negligent injuries to a person traveling on a pass (Ulrich v. New York Cent. & H. R. Co., 108 N. Y. 80, 15 N. E. 60). With regard to limitation of passenger liability by contract to a limited amount, there is little common-law authority. What there is indicates that in the absence of statute the law is completely unsettled on this point (See Saul N. Rittenburg, Limitation of Airline Passenger Liability, 6 Journal of Air Law 365, 379). Of course, in a wrongful death action the recovery may be limited in amount if the State wrongful death act so provides. (See infra section III, subsection 4, of this paper.) Contributory negligence on the part of the passenger is a defense to the carrier (Winters v. Baltimore & Ohio Ry. Co., 163 Fed. 106).

A number of States have statutes forbidding common carriers to exempt themselves from liability by contract for injuries to persons or property carried, resulting from the negligence or gross negligence of the carrier. Some statutes specifically forbid limitations on the amount of liability. Among the States having special statutes as to negligence of common carriers are: Arkansas (railroads only), California, Illinois, Indiana, Iowa (railroads only), Kansas, Kentucky, Maryland, Massachusetts, Michigan (railroads only), Minnesota, Mississippi, North Dakota, Oklahoma, and South Dakota. (See Arnold W. Knauth, Compulsory Aviation Liability Insurance in Great Britain and the United States, 8 Journal of Air Law 460, 466).

A number of cases for personal injuries to passengers have applied the doctrine of res ipsa loquitur where the nature of the accident was such as to indicate negligence on the part of the carrier (Breen v. New York Central, etc. R. Co., 109 N. Y. 297, 16 N. E. 60); and Vischer v. Northwestern El. R. Co., 256 Ill. 572, 100 N. E. 270).

Carriers are under a duty to use the highest degree of care to protect passengers from negligent and willful acts of fellow passengers and third persons (Flint v. Norwich, etc. Transportation Co., 9 F. Cas. No. 4873; and McCumber v. Boston Elevated Ry. Co., 207 Mass. 559, 93 N. E. 699).

With regard to goods carried, the old common-law rule was that common carriers were liable as insurers except for loss or damage through acts of God or the public enemy, inherent nature of the goods, fault of the owner or shipper, or public authority. (See William F. Elliott, Law of Bailments and Carriers, sec. 164.) The carrier was permitted to limit its liability for loss by contract provided such limitation was just and reasonable and did not exempt the carrier from liability for its own negligence or that of its servants (Cleveland, etc. R. Co. v. Blind, 182 Ind. 398, 105 N. E. 483). Aside from this exception, the limitation could be as to amount of liability or for certain types of loss (Ellictt, Bailments and Carriers, secs. 188 and 189.)

A number of States have passed statutes forbidding common carriers to limit liability for loss or damage to goods. (See supra, and Elliott, Bailments and Carriers, sec. 181.)

The Carmack amendment to the Interstate Commerce Act, passed in 1906 (38 Stat. 1197), provided that common carriers, railroads, or transportation companies subject to the Interstate Commerce Act receiving property for interstate transportation should issue a receipt or bill of lading and become liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or connecting carriers. It was further provided that no contract, rule, or regulation could exempt the carrier, railroad, or transportation company from the liability imposed. Finally, the initial carrier was given a right over against connecting carriers for injury or loss occurring on their lines. In Adams Express Co. v. Croninger (226 U. S. 491), it was held that carriers under this section could limit their liability to a declared value by fair and reasonable agreements with shippers if the charge for carriage was proportionately lower. It was further held that with respect to interstate shipments the Carmack amendment overrode a State statute forbidding limitation of liability. The "exemption" forbidden by the statute was held to be a contract for exemption of liability for negligence. The statute in this respect was held to be declaratory of the common law. (See Bernard v. Adams Express Co., 205 Mass. 254, 259, 91 N. E. 325, 327.) There have been several amendments to the Carmack amendment. It now provides that there can be no limitation of liability by contract except upon baggage and upon property regarding which the Commission has ordered or authorized the carrier to establish or maintain rates based upon the declared value. In such cases liability can be limited to the declared value. (See 49 U. S. C. A., sec. 20 (11).)

A private carrier of goods, like other ordinary bailees, is liable only for negligence (White v. Bascom, 28 Vt. 268; Baird v. Daly, 57 N. Y: 236; and Holtzdaw v. Duff, 27 Mo. 392). Since private carriers are liable as bailees, they can limit their liability by contract (Hanes v. Shapiro, 168 N. C. 24, 84 S. E. 33). The power to restrict liability is not unlimited, however. Although some cases hold that a bailee can exempt himself from liability except for "gross neglect or wanton carlessness" (Evans v. Nail, 1 Ga. A. 42, 57 S. E. 1020), the more general rule is that he cannot free himself from liability for negligence (Pilson v. TipTop Auto Co., 67 Oreg. 528, 136 Pac. 642).

A common carrier is liable for loss or damage to baggage as for freight (Illinois Central R. Co. v. Fontaine, 217 Ky. 211, 289 S. W. 263, 52 A. L. R. 1064). Where property which does not properly constitute baggage was delivered to a carrier by a passenger as baggage it has been held that the carrier is not liable for damage in the absence of gross negligence (Humphreys v. Perry, 148 U. S. 627). If, however, the carrier had knowledge that the property delivered as baggage was not properly such, it is liable for the loss thereof as with respect to baggage generally (Hannibal Railroad v. Swift, 12 Wall. 262).

The common carrier is only held to a standard of ordinary care with respect to personal effects carried by a passenger in his own possession (Tower v. The Utica & Schenectady R. Co., 7 Hill (N. Y.) 47; Sperry v. Consolidated R. Co., 79 Conn. 565, 65 Atl. 962; and see Nashville, C. & St. L. R. Co. v. Lillie, 112 Tenn. 331, 340, 78 S. W. 1055, 1057).

Railroads are required to use reasonable or ordinary care at public crossings (Grippen v. New York Central R. Co., 40 N. Y. 34; and Kansas City Southern Ry. Co. v. Drew, 103 Ark. 374, 147 S. W. 50). The same standard is required of the railroad as to persons rightfully using private crossings (Hawkins v. Interurban Ry. Co., 184 Iowa 232, 168 N. W. 234). Where the person crossing is a trespasser or mere licensee, the general rule is that the only duty of the railroad is to use due care after knowledge of the impending danger and not to inflict willful or wanton injury (Cherney v. Fitchburg R. Co., 160 Mass. 211, 35 N. E. 554; and Cunningham v. Toledo, etc., R. Co., 260 Ill. 589, 103 N. E. 594). Contributory negligence is a defense in crossing accidents (Schrader v. New York, etc., R. Co., 254 N. Y. 148, 172 N. E. 272).

There are apparently no statutes requiring railroads to carry liability insurance of any kind.

2. Motor vehicles.

The general rules of common law liability for carriers for injuries to passengers and damage to property carried, as set forth above with respect to railroads, apply also to carriers by motor vehicle.

Under section 129 of the Motor Carrier Act, 1935 (49 U. S. C. A., sec. 319, 49 Stat. 563), the Carmack amendment is extended to cover goods shipped on common carriers by motor vehicle in interstate commerce.

Operators of motor vehicles are under a common law duty to operate with due care for the safety of others on the street (Fraser v. Flanders 248 Mass. 62, 142 N. E. 836; and Marsh v. Boyden, 33 R. I. 519, 82 Atl. 393). A few States have passed statutes requiring operators to exercise the "highest degree of care.” (See Hopkins v. Sweeney Automobile School Co. (196 S. W. 772 (Mo. App.).)

In general, contributory negligence is a defense in an action for personal injuries or for damages resulting from a collision of motor vehicles of from being hit by a motor vehicle (Gibb v. Hardwick, 241 Mass. 546, 135 N. E. 868; and Dircks v. Tonne, 183 Iowa 403, 167 N. W. 103).

It is generally held that the defense of contributory negligence can be abrogated if the defendant had the "last clear chance" to avoid the accident after he became aware of the other's peril. (See Osgood v. Maxwell, 78 N. H. 35, 39, 95 Atl. 954, 956.)

In Mississippi there is a statute providing that in actions for personal injuries contributory negligence shall not bar recovery but damages shall be assessed according to the respective degrees of negligence of the parties. (See Krebs v. Pascaoula St. R., etc. Co., 117 Miss. 771, 78 So. 753, which holds that the statute does not apply to an action for damages for injury to a motor vehicle.)

Massachusetts has a statute requiring all motor vehicles registered in the State, with a few exceptions, to take out a liability policy or a bond in the amount of at least $5,000 on account of injury or death to any one person, and $10,000 on account of injury or death to more than one person in any one accident. The policy covers all persons injured or killed through the operation of the motor vehicle except guests and employees of the owner or person responsible for the operation of the motor vehicle. (Ann. Laws of Mass. vol. III, ch. 90, secs. 34A-34J).

Several other States have statutes requiring motor carriers to carry compulsory liability insurance to protect third persons from injuries to their persons or property (Continental Baking Co. v. Woodring, 286 U. S. 352 (Kansas); Stephenson v. Binford, 287 U. S. 251 (Texas); Johnson Transfer & Freight Lines v. Perry, 47 F. (2d) 900 (Georgia); and Hicklin v. Coney, 290 U. S. 169 (South Carolina)). A Washington statute required motor carriers to take out insurance for injuries to persons and property carried as well as injuries to the person and property of third persons. Its constitutionality was upheld in the State court in Williams v. Denny (151 Wash. 630, 276 Pac. 858). (See Clark v. Poor, 274 U. S. 554, where a somewhat similar Ohio statute was mentioned but not passed upon.) But in Michigan Public Utilities Comm. v. Duke (266 U. S. 570), the Supreme Court held that a Michigan statute imposing upon all motor carriers for hire the burdens and duties of common carriers and requring insurance for liability for injury to property carried violated the commerce clause when applied to interstate operations. It is not made clear whether the insurance provision alone would have been unconstitutional.

In Sprout v. South Bend (277 U. S. 163), a municipal ordinance requiring persons operating busses for hire to carry liability insurance against injuries to third persons was held to be not violative of the commerce clause or the due process clause. The ordinance did not require insurance of passengers, and the language of the opinion was carefully limited so as to not cover this point.