There is thus considerable doubt whether a State can require interstate motor carriers to carry insurance against liability for injuries to passengers and goods carried.

Eighteen States have passed so-called financial-responsibility laws. (See Young B. Smith, Austin J. Lilly, Noel T. Dowling, Compensation for Automobile Accidents: A Symposium, 32 Col. L. Rev. 785, 795-796.) Typical of this type of legislation is the Uniform Automobile Liability. Security Act, which has been enacted in most of the said States. It provides that when the license of a motor-vehicle operator is suspended for driving while under the influence of liquor, reckless driving, driving without a permit, etc., it shall not be reinstated until the operator shall give proof of financial responsibility, which may consist of a bond, a deposit of collateral, or an insurance policy. If anyone fails within 15 days to satisfy a judgment in excess of $200 for personal injuries, death, or property damage resulting from the negligent operation of a motor vehicle owned or operated by him or his agent, his operator's license and all his registration certificates shall be suspended until the judgment is satisfied and proof of financial responsibility given. Persons once having to prove financial responsibility have to continue to maintain it until relieved of the duty by the Commissioner of Motor Vehicles. In cases of good behavior the Commissioner may grant relief after a period of not less than 3 years has elapsed from the time when proof of financial responsibility was first required.

At common law, by the majority rule, the operator of a private motor vehicle owes a duty of due care to guests or invitees in his automobile (Marple v. Haddad, 103 W. Va. 508, 138 S. E. 113, 61 A. L. R. 1248). The minority rule is that the operator is liable only for gross negligence (Manning v. Simpson, 261 Mass. 494, 159 N. E. 440; and Trotter v. Bullock, 148 Wash. 516, 269 Pac. 825).

According to the Martindale-Hubbell Law Digests of 1938, 27 States have passed guest statutes which make the operator liable to nonpaying guests only in cases of gross negligence.

3. Shipping.

* *

There is a series of statutory provisions regulating the liability of shipowners. The Harter Act (46 U. S. C. A., secs. 190-195, 27 Stat. 445) is perhaps the chief one. It provides that it shall be unlawful for the owner of a vessel engaging in foreign trade to relieve himself by contract of liability for loss or damage to property carried arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery. Section 2 provides that it shall not be lawful for a shipowner by contract to lessen, weaken, or avoid his obligation to exercise due diligence, properly to equip, man, provision, and outfit his vessel, and to make her seaworthy, or the obligation of the master, officers, or agents carefully to stow her cargo and to care for and properly deliver the same. Section 3 provides that if the owner has exercised due diligence to make his vessel "in all respects seaworthy and properly manned, equipped, and supplied, * neither owner, vessel, nor charterer shall be held responsible for damage or losses resulting from faults or errors in navigation or in the management of said vessel," nor for "losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality, or vice of the thing carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service." For many of these causes the carrier was not liable even before the act. Section 3 has been construed in conjunction with the rest of the act to apply only to the responsibility of a carrier to the owner of a cargo carried for damage to the cargo. It does not relieve the shipowner from liability for damage to another vessel with which his ship collides through faulty navigation (The Delaware, 161 U. S. 459), nor for damage to cargo on the other vessel (The Chattahoochee, 173 U. S. 540, 555). Moreover, it does not relieve the owner from liability for injuries to passengers. It has also been held that the act does not apply to damage to passengers' baggage (The Rosedale, 88 Fed. 324). The exemptions in the act apply wherever goods enter or leave a port of the United States (In re Piper Aden Goodall Co., 86 Fed. 670).

Under section 1 of the Harter Act a steamship company may by stipulation in its bill of lading limit its liability to a given amount unless a greater value is declared and extra freight paid (Reid v. Fargo, 241 U. S. 544).

Another statutory provision limits all liability of owners of vessels to the value of the vessel and freight, as they exist at the end of the voyage (Ship

ping Act of 1884, sec. 18, 46 U. S. C. A., sec. 189, 23 Stat. 57). This provision is applicable to all seagoing vessels and also to all vessels used on lakes or rivers in inland navigation (Revised Statutes, sec. 4289, as amended, 46 U. S. C. A., sec. 188). This means that where the ship is lost, the owner is freed from liability. A related provision states that for any damage or injury incurred without the privity or knowledge of the owner or owners, the liability of any owner shall not exceed the value of his interest in the vessel and her freight (Revised Statutes, sec. 4283, 46 U. S. C. A., sec. 183). Thus if a vessel is owned by several people, no one of them can be held for more than his share in the vessel and cargo.

The ordinary basis of collision liability is negligence, but where both parties are negligent, the rule is to divide the total damages equally. As Mr. Justice Bradley said in The North Star (106 U. S. 17, 22) :

*** * * according to the general maritime law, in case of collision occurring by the fault of both parties, the entire damage to both ships is added together in one common mass and equally divided between them, and thereupon arises a liability of one party to pay to the other such sum as is necessary to equalize the burden."

For a discussion of questions concerning contribution for cargo loss under the Harter Act, see Frederick Green, The Harter Act (16 Harv. L. Rev. 157, 174, 177).

Another important statutory provision is a recently enacted one which provides that where the claims against an owner exceed his interest in the vessel and cargo, and the portion of such amount applicable to loss of life and personal injury claims is less than $60 a ton, the portion shall be increased to $60 a ton, If the portion so increased is insufficient to pay off such losses, they shall be paid proportionately (acts of Aug. 29, 1935, and June 5, 1936, 46 U. S. C. A., sec. 183, 49 Stat. 960, 49 Stat. 1479). The act of June 5, 1936, also provides that no owner of a vessel operating in foreign trade shall be able by contract to limit his liability for personal injuries or death of passengers to a fixed amount.

A common carrier by water is under a duty to use the highest standard of care toward its passengers, but it is not an insurer of their safety (The Arabic, 34 F. (2d) 559). Hence, it is not liable for injuries which the proper degree of care, skill, and diligence could not anticipate or prevent (Kohn v. International Mercantile Marine Co., 180 Fed. 495). Contributory negligence generally bars the passenger's recovery (Gretschmann v. Fix, 189 Fed. 716). Some cases have held that contributory negligence merely diminishes the amount of recovery (The Tourist, 265 Fed. 700).

The vessel and its employees are under a duty to use the utmost care to protect passengers from the negligent and reckless acts of fellow passengers (Northern Commercial Co. v. Nestor, 138 Fed. 383).

The vessel is not liable to passengers for the negligent or willful acts of third persons which could not reasonably have been anticipated or guarded against (The Lusitania, 251 Fed. 715; and Anda v. Chicago, etc., Transit Co., 231 Mich. 567, 204 N. W. 761). Under the admiralty law of the United States a ship owner cannot contract himself out of liability for negligence (Oceanic Steam Nav. Co. v. Corcoran, 9 F. (2d) 724).

The liability of a ship owner for passengers' baggage is, generally speaking, the same as for merchandise or goods being carried for hire (The Thessaloniki, 267 Fed. 67, cert. denied 254 U. S. 649).

4. General.

A word should be said concerning wrongful death acts. In 34 States and Territories the wrongful death acts place no limitation upon the amount of damages recoverable. In 9 of these States there are constitutional provisions prohibiting the limitation of liability for wrongful death: Arizona, Arkansas, Kentucky, New York, Ohio, Oklahoma, Pennsylvania, Utah, and Wyoming. In most of these States specific constitutional provision was made to permit the passage of workmen's compensation acts.

Eighteen States and Territories have statutes which limit the maximum amount recoverable for wrongful death. They are Alaska, Colorado, Connecticut, District of Columbia, Illinois, Indiana, Kansas, Maine, Massachusetts, Minnesota, Missouri, New Hampshire, New Mexico, Oregon, South Dakota, Virginia, West Virginia, and Wisconsin. In the great majority of these States the limit is $10,000. Maine and Colorado have a $5,000 limit and Connecticut goes up to $15,000.

Mention should also be made of the federal Death on the High Seas by Wrongful Act statute (46 U. S. C. A., sec. 762, 41 Stat. 537), which provides for suit in an admiralty court with no limitation on maximum recovery.

IV. AIRCRAFT LIABILITY LAW

We may now briefly examine the law of liability in the field of aviation,

1. United States, Domestic Law.

First, let us examine the statutes now in force in the United States upon this subject. Most important with regard to domestic flying is the Uniform Aeronautics Act. It provides in section 5 that the owner of an aircraft is absolutely liable for injuries to persons or property upon the ground, except where the person injured was negligent. Section 6 provides that the liability of the owner of one aircraft to the owner of another aircraft, or to aeronauts or passengers on either aircraft, for damage caused by collision on land or in the air, shall be determined by the rules of law applicable to torts on land. Except for collision cases, no provision is made regarding liability for injury to passengers or for loss or damage to goods carried. These are the chief provisions which bear upon our problem. Twenty-one States have adopted the uniform act. They are Arizona, Delaware, Idaho, Indiana, Maryland, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, North Carolina, North Dakota, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Wisconsin, and Wyoming. Hawaii has also adopted it.1

3

Wyoming, Missouri, and Montana have omitted the ground damage section and Arizona provides for a negligence standard for damage done by forced landings. Idaho enacted the uniform law in 1925. In 1931 it was repealed and reenacted with certain modifications, one of them being to change liability for damage on the land from absolute liability to that “applicable to torts on land." Just what change this has made is not clear. If the trespass doctrine is applied (discussed infra), the alteration in language probably has not changed the rule of liability. The experience of these States illustrates vividly the difficulties of ever reaching complete uniformity through State action.

Pennsylvania has adopted a statute which provides that liability shall be determined by the rules of law applicable to torts on land (Pardons, Penn. Stats. Ann. 1936, secs. 1467-1473).

Although Connecticut at one time had a statute providing for absolute liability for injuries to persons or property on the ground, the present statute provides for a negligence standard for all injuries (Conn. Gen. Stats. 1930, sec. 3077).

Maryland has a statute very similar to the Federal marine limitation of liability to the owner's interest in the ship. It provides that the liability of the owner of an aircraft operating in interstate commerce shall be limited to the amount of his interest in the plane and its freight (Md. Ann. Code, 1935 Supp., art. 1A, sec. 41). There is some question whether this section will be construed to apply to both goods and passengers or merely goods. (See Rittenburg, Limitation of Passenger Liability, 6 Journal Air Law, 365, 389, and 398). Maryland also has a statutory provision similar to the Harter Act relieving owners of aircraft engaged in interstate commerce from liability for errors in navigation, handling, etc. (Md. Ann. Code, 1935 Supp., art. 1A, sec. 46). The exemption covers both passengers and goods carried.

Louisiana has a statute which requires compulsory insurance. It provides that the owner of any airplane engaged in the business of carrying passengers for hire in the State must execute an indemnity bond for $15,000 for one plane and an additional $1,000 for each additional airplane. The bond is to run in favor of "any person who may be injured in person or property" by the operation of any airplane used in said business (La. Gen. Stats. 1932, secs. 1-11).

Virginia at one time had regulations issued by the State corporation commission requiring commercial aviators operating in intrastate commerce to insure against

Ariz. Rev. Code, 1936 Supp., secs. 175222-175244. Del. Rev. Code, 1935, secs. 57765786. Id. Code Ann., 1932, secs. 21-101 to 21-110. Ind. Burns' Stat., Supp. 1929, secs. 3843.1-3843.12. Md. Ann. Code, 1935 Supp., art. 1A, secs. 1-12. Mich. Stat. Ann., secs. 10.21-1029. Minn. Stats., 1938 Supp., secs. 5494-7 to 5494-21. Mo. Stat. Ann., secs. 13905-13915. Mont. Rev. Code, 1935, ch. 248. Nev. Comp. Laws, 1929, secs. 175-288. N. J. Rev. Stats., 1937, secs. 6: 2-1 to 6: 2-10. N. Car. Code, 1935, secs. 1911-191x. N. D. Comp. Laws. Supp. 1926, secs. 2971c1-2971c12. R. I. S. L., 1929, ch. 1234. S. Car. Code, 1932, secs. 7100-7112. S. D. Comp. Laws, 1929, secs. 8666L-8666W. Tenn. Code, 1938, secs. 2716-2726. Utah Rev. Stat. Ann., 1933, secs. 4-0-1 to 4-0-9. Vt. Pub. Laws, 1933, ch. 216. Wis. Stat.. 1937, ch. 114. Wyo. Rev. Stat., 1931, secs. 4-101 to 4-110. 4 Hawaii Rev. Stat., 1935, ch. 229.

injuries to passengers in the amount of $5,000 a person and $10,000 an accident. Insurance against liability for property damage to anyone was required in the amount of $2,000. (See 1929 U. S. Av. Rep. 855.) It is interesting to note that these regulations have been repealed. The State corporation commission informs us that Virginia now has no insurance requirements whatsoever for aircraft.

It is apparent from the foregoing that the question of liability for injuries to passengers or property carried by aircraft has been very little regulated by statute. With the exception of Maryland, which applies the liberal rules of maritime law, the few State statutes covering it provide that liability shall be determined by the rules of law applicable to torts on land or set up a negligence standard. Thus one is led back to the ordinary law of carriers. As regards the liability of common carriers to passengers, it has been held that while the air carrier is not an insurer of the passenger's safety, it must exercise the highest degree of care consistent with practical operation (McCusker v. Curtiss-Wright Flying Service, Inc., 269 Ill. App. 502; Smith v. O'Donnell, 215 Cal. 714, 12 P. (2d) 933; and Wilson v. Colonial Air Transport, Inc., 278 Mass. 420, 180 N. E. 212).

Although the regular rule regarding private carriers by air is that reasonable or ordinary care only is required, some courts have imposed upon private carriers of passengers a duty to use the highest degree of care (North American Accident Ins. Co. v. Pitts, 213 Ala. 102, 104 So. 21; and Berg v. Seitz, 1931 U. S. Av. Rep. 111 (Dist. Ct. Kan.)).

Several cases, however, use the test of reasonable or ordinary care with regard to private carriers (Bird v. Louer, 272 Ill. App. 522; Seaman v. Curtiss Flying Service, 1931 U. S. Av. Rep. 229 (N. Y. Sup. Ct.); and Stoll v. Curtiss Flying Service, 1930 U. S. Av. Rep. 148 (N. Y. Sup. Ct.).

Contributory negligence by the passenger is a defense. (See Berg v. Seitz,

supra.)

It has been held that a common carrier by airplane cannot by contract exempt itself from liability to a passenger for negligence (Law v. Transcontinental Air Transport, Inc., 1931 U. S. Av. Rep. 205 (Dist. Ct. E. D. Pa.)). It has also been held that a common carrier by airplane cannot limit its liability for negligence to a certain amount by a provision printed on the ticket (Curtiss-Wright Flying Service, Inc. v. Glose, 66 F. (2d) 710). However, in Conklin v. Canadian Colonial Airways, 266 N. Y. 244, 248, 194 N. E. 692, 693, it was indicated that a limitation on the amount of liability could be made in the case of a passenger if he was offered a reduced fare in exchange. This was said to be in accordance with the New York rule regarding passengers on railroads and the general rule regarding goods shipped.

The doctrine of res ipsa loquitur has been applied in a number of cases for injuries to passengers (Smith v. Pacific Alaska Airways, 89 F. (2d) 253; Smith v. O'Donnell, 215 Cal. 714, 12 P. (2d) 933; Seaman v. Curtiss Flying Service, Inc., 231 App. Div. 867, 247 N. Y. Supp. 251; and English v. Miller, 43 S. W. 2d. 642 (Tex.) (here plaintiff defeated the theory of res ipsa loquitur by alleging specific acts of negligence).

In the Canadian case of McInnerny v. McDougall decided Nov. 16, 1937, by the King's Bench, Manitoba, it was held that the rule of res ipsa locquitur applied as against the estate of a deceased pilot in favor of a non-paying guest passenger.5 Many other decisions have refused to apply the doctrine on the theory that its application was improper under the particular circumstances involved (Wilson v. Colonial Air Transport, Inc., 278 Mass. 420, 180 N. E. 212; Boulineaux v. Knoxville, 20 Tenn. App. 404, 99 S. W. 2d. 557; Parker v. James E. Granger, Inc., 4 Cal. 2d. 668, 52 P. (2d) 226; and Budgett v. Soo Sky Ways, 266 N. W. 253 (S. Dak.).

Since the carrier is not an insurer of the passenger's safety, the latter assumes the ordinary risks of transportation, but not the negligence of the carrier (Boulineaux v. Knoxville, supra).

In the case of Hansen v. Lewis, decided Dec. 9, 1937, by the Common Pleas Court, Belmont County, Ohio, it was held that a motor vehicle guest statute making the operator of the motor vehicle liable only in case of willful or wanton misconduct was not applicable to an airplane accident.5

The only case we have been able to find bearing on the subject of liability for goods carried in the plane is the case of Wilson v. Colonial Air Transport, Inc., supra. It involved an action for loss and damage to personal effects and wearing apparel when the plane in which plaintiff was a passenger made a nose dive into

This case was referred to by George B. Logan in his Report on Aeronautical Law Developments for the Year 1938 at the Eighth Annual Convention of the National Association of State Aviation Officials held at Omaha, Nebr., on October 15, 1938.

the water. The defendant was a private carrier, and the court indicated it was to be held to an ordinary or reasonable standard of care. There was a dictum that the degree of care to which a common carrier would be held would be higher. This dictum is not quite in line with the general railroad rule of ordinary care regarding personal effects. There is no explanation of why a higher degree of care should be imposed in the case of aircraft. The remark in the opinion is of a casual nature and probably not to be taken too seriously.

Thus, generally as regards aircraft liability for injuries to passengers or loss or damage to property carried, the rules of law which have been applied by the courts have with minor variations been those of the law of carriers generally.

With regard to ground damage, in Rochester Gas and Electric Corp. v. Dunlop (189 Misc. 849, 266 N. Y. Supp. 469), it was held that an airplane which crashed into a person's land or building was a trespasser and absolutely liable for property damage done. The doctrine of res ipsa loquitur was held not to apply because there was no issue of negligence. In Smith v. New England Aircraft Co. (270 Mass. 511, 170 N. E. 385), it was held that while flying at extremely low altitudes constituted a trespass, it did not entitle the landowner to injunctive relief. Hinman v. Pacific Air Transport (84 F. (2d) 755), held that flying at a low altitude (100 feet diminishing to a height of within 5 feet, at one end of plantiff's land) did not constitute even a technical trespass unless it interferred with the plaintiff's enjoyment of his land. It was said that if the plaintiff had showed damage, he would have stated a case of trespass. Thus if there had been a crash, it seems that the absolute liability of the common law trespass doctrine would have ap plied. This case, therefore, seems in line with the Rochester case.

In Sollak v. State of New York (1929 U. S. Av. Rep. 42 (N. Y. Ct. Cl.)), an airplane operated by the State of New York collided with an automobile in which the claimant was riding on a public highway. The court applied a negligence standard and permitted a recovery for personal injury and property damage.

In State, to Use of Birckhead v. Sammon, (171 Md. 178, 189 Atl. 265), the Maryland Court of Appeals held that the provision of the Uniform Aeronautics Act providing for absolute liability for ground damage or injuries did not apply to authorized landings at an airport. Thus although Maryland had passed the statute, defendant was not held to be absolutely liable for injuries to a boy riding a bicycle across the airport who was hit by defendant's plane in landing. It was held that the operator of the plane was under a duty to use reasonable or ordinary care.

Although the law cannot be considered settled on the matter of ground injuries and damage, the above cases illustrate certain tendencies: (1) A plane owner will be held absolutely liable for damage to property caused by an unauthorized landing or crash on that property. By common law personal injuries to the owner of the land or someone properly on it might fall in the same category. The Uniform Aeronautics Act places them there. Whether at common law there would be absolute liability to a trespasser on the property is doubtful; (2) at an authorized landing place the operator of a plane will be held to a negligence standard only; (3) as to injuries occurring at public places, such as on a highway, the Sollak case applies a negligence standard, but some courts might impose absolute liability.

The leading case on collisions is Greunke v. North American Airways Co. (201 Wis. 565, 230 N. W. 618). A plane carrying a student for instruction collided while landing with a plane at rest on the landing field. The owner of the latter plane brought suit for damage to his plane. Neither plane was a common carrier. Wisconsin had adopted the Uniform Aeronautics Act which provides that liability in collision cases shall be determined by the rules of law applicable to torts on land. The court said that this was declaratory of the common law. It was held that the defendant was under a duty to use ordinary or reasonable care. The lower court judgment for the plaintiff was reversed because the jury had been instructed that the defendant had to exercise the highest degree of care that men of reasonable vigilance and foresight ordinarily exercise in the operation of an airplane.

2. United States, International Law.

The Warsaw Convention of 1929 was adopted by the United States in 1934 and applies to international flying between the United States and countries which have adopted it. At present it applies to all our international flying except Canada, Cuba, Argentina, the west coast of South America and Portugal. The Warsaw Convention covers liability for injuries to passengers and for loss