sengers. (See George R. Sullivan, The Codification of Air Carrier Liability by International Convention, 7 Journal of Air Law 1, 34.) The exemption was apparently rejected as to passengers on the theory that the higher standard would promote greater safety. (See Id.) It should be noted that the Harter Act exemption does not apply to passengers. (See supra, p. 12.) As regards goods and baggage carried by airplane it seems that the same reasons for the exemption exist as in the case of ships.

The Maryland statute regarding interstate aircraft operating containing exemptions similar to the Harter Act as to both passengers and goods carried (Md. Ann, Code, 1935 Supp., Art. 1A, Sec. 46). Whether this extension is desirable is at least debatable.

A Federal statute along the lines of the Warsaw Convention would have many advantages. In the first place, it would bring our domestic law into line with the law for foreign flights. That this course has advantages is pointed out in a letter from Dr. Goedhuis to the special committee appointed by the Air Transport Association in 1937 to consider an earlier draft of the proposed act. He says in part:

"The fact that the United States of America have adhered to the Warsaw Convention proves, in my opinion, that the United States of America also realizes the necessity of submitting the air carrier to a regime based on fault. The recognition of this principle in international carriage entails as an inevitable consequence the recognition of the same principle in national air carriage. The particular character of aviation makes a distinction between these two kinds of carriage impossible. To give an example: If a passenger traveling by air from Brownsville to New York suffers damage owing to the plane being struck by lightning, the carrier will, by virtue of the proposed uniform State law, be liable; if, however, the passenger started his journey at Tamplico, the carrier in the same case will not be liable because he will fall under the rules of the Warsaw Convention, 'which stipulate that the carrier is not liable when he proves that he and his representatives have taken the necessary measures to avoid the damage.

"As the tendency of countries all over the world is to apply the rules of the Warsaw Convention also to national air carriage, it is obvious that air carriers in the United States of America would be in a very unfavorable position as compared to air carriers in other parts of the world, if any absolute liability was imposed upon them."

Secondly, as was indicated above, the Warsaw plan takes care of proving negligence in a just and workable way.

Thirdly, it would not involve aviation in the difficulties of compulsory insurance.

Finally, the plan has stood the actual test of experience in many countries and has been found to be workable and satisfactory.

INTERNATIONAL CONVENTIONS

(At this point there appear certain data relating to international conventions which Col. Edgar S. Gorrell had been asked to supply :) The attached is a copy of the International Convention for the Regulation of Aerial Navigation signed at Paris on October 13, 1919, with modifications which, according to information available to the Department of State, had been made in the convention up to June 16, 1926. Since that date there have been a number of revisions of the convention and of its technical annexes, and the text herewith enclosed is very much out of date. Since the United States signed but never ratified this convention, it has never been printed in the treaty series of the Department of State. If it is desired to obtain the text showing modifications of the convention and changes in the annexes made since 1926, it will be necessary to refer to the official bulletins of the International Commission for Air Navigation, a permanent body set up under article 34 of the convention. The latest bulletin of which the Department of State has any record containing the amended text of the Convention and its annexes is Official Bulletin No. 26 (December 1938) of the International Commission for Air Navigation. The text of the convention and its annexes, A to H, will be found beginning on page 1 of the second part of the Bulletin.

The Library of Congress is in possession of Bulletin No. 26 referred to above, and it is suggested that an effort might be made to ascertain whether the Library of Congress would be willing to make a loan of the bulletin for the purpose of copying the text of the convention and its annexes.

A discussion of the convention contained in pages 359-364 of volume IV of a Digest of International Law, recently published by Green H. Hackworth, legal adviser of the Department of State, may be of interest.

Although the United States did not ratify the Paris Convention, it adopted a policy of entering into bilateral agreements, nearly all of which contained the basic principles of the Paris Convention but did not contain the technical annexes. Such arrangements were concluded with Canada, Denmark, France, Germany, Great Britain, Ireland, Italy, Liberia, Norway, Sweden, and the Union of South Africa. The United States also became a party to a convention on commercial aviation signed at Habana on February 20, 1928, which also contains certain basic principles found in the Paris Convention but does not have technical annexes.

In addition to the air-navigation agreements, as you doubtless know, arrangements were entered into through diplomatic negotiations with Canada, Great Britain, and Ireland for the establishment of trans-Atlantic air transport service. These negotiations resulted in permits being issued to Pan American Airways and to Imperial Airways in 1937. The negotiations were not printed in the Executive Agreement Series of the Department of State. In addition, mention might be made of the bilateral air-transport arrangements entered into with Canada and France.

(The attached is, according to the information of the Department of State, the text of the International Convention for the Regulation of Aerial Navigation signed at Paris on October 13, 1919, as modified up to June 16, 1926.)

(The resolutions which are cited in the footnotes have to do with the resolutions of the International Commission for Air Navigation, which was established in accordance with article 34.of the Convention. The initials O. B. used in the footnotes relate to the official bulletins Issued periodically by that Commission.)

[NOTE. This convention has been modified since 1926.]

CONVENTION RELATING TO THE REGULATION OF AERIAL NAVIGATION

DATED 13TH OCTOBER 1919 CORRECTED TEXT1

CHAPTER I. GENERAL PRINCIPLES

ARTICLE 1. The High contracting Parties recognise that every Power has complete and exclusive sovereignty over the air space above its territory. For the purpose of the present Convention the territory of a State shall be understood as including the national territory, both that of the mother country and of the colonies, and the territorial waters adjacent thereto.

ART. 2. Each contracting State undertakes in time of peace to accord freedom of innocent passage above its territory to the aircraft of the other contracting States, provided that the conditions laid down in the present Convention are observed.

Regulations made by a contracting State as to the admission over its territory of the aircraft of the other contracting States shall be applied without distinction of nationality.

ART. 3. Each contracting State is entitled for military reasons or in the interest of public safety to prohibit the aircraft of the other contracting States, under the penalties provided by its legislation and subject to no distinction being made in this respect between its private aircraft and those of the other contracting States, from flying over certain areas of its territory.

In that case the locality and the extent of the prohibited areas shall be published and notified beforehand to the other contracting States.

ART. 4. Every aircraft which finds itself above a prohibited area shall, as soon as aware of the fact, give the signal of distress provided in Paragraph 17 of Annex D and land as soon as possible outside the prohibited area at one of the nearest aerodromes of the State unlawfully flown over.

1 Note by the general secretary of the International Commission for Air Navigation: This text contains all the modifications (in italics) made by the international commission for air navigation in the original text of the 13th October 1919, including those adopted at the eighth session (London, April 1925) by resolutions 222, 229, and 230 reproduced in official bulletin No. 8 and which will not come into force until the 2nd November 1925. The reader is referred by notes to complementary texts, when necessary.

CHAPTER II. NATIONALITY OF AIRCRAFT

ART. 5. No contracting State shall, except by a special and temporary authorisation, permit the flight above its territory of an aircraft which does not possess the nationality of a contracting State.2

ART. 6. Aircraft possess the nationality of the State on the register of which they are entered, in accordance with the provisions of Section I (c) of Annex A. ART. 7. No aircraft shall be entered on the register of one of the contracting States unless it belongs wholly to nationals of such State.

No incorporated company can be registered at the owner of a aircraft unless it possess the nationality of the State in which the aircraft is registered, unless the president or chairman of the company and at least two-thirds of the directors possess such nationality, and unless the company fulfills all other conditions which may be prescribed by the laws of the said State.

ART. 8. An aircraft cannot be validly registered in more than one State. ART. 9. The contracting States shall exchange every month among themselves and transmit to the International Commission for Air Navigation referred to in article 34 copies of registrations and of cancellations of registrations which shall have been entered on their official registers during the preceding month.3

ART. 10. All aircraft engaged in international navigation shall bear their nationality and registration marks as well as the name and residence of the owner in accordance with annex A.

CHAPTER III. CERTIFICATES OF AIRWORTHINESS AND COMPETENCY

ART. 11. Every aircraft engaged in international navigation shall, in accordance with the conditions laid down in annex B, be provided with a certificate of airworthiness issued or rendered valid by the State whose nationality it possesses. ART. 12. The commanding officer, pilots, engineers, and other members of the operating crew of every aircraft shall, in accordance with the conditions laid down in annex E, be provided with certificates of competency and licences issued or rendered valid by the State whose nationality the aircraft possesses.

ART. 13. Certificates of airworthiness and of competency and licenses issued or rendered valid by the State whose nationality the aircraft possesses, in accordance with the regulations established by annex B and annex E and hereafter by the International Commission for Air Navigation, shall be recognized as valid by the other States.*

2 See O. B. 8, p. 86, the téxt of the additional protocol dated May 1, 1920. Declarations concerning the application of article 5: Belgium, Bolivia, British Empire, France, Greece, Portugal. Kingdom of the Serbs. Croats and Slovenes, Siam (Official Bulletin No. 1, p. 3, par. 3); Japan (O. B. 1, p. 5); Persia (O. B. 1, p. 6); Italy (0. B. 4, p. 3) ; Czechoslovakia (O. B. 5, p. 4, par. 3); Bulgaria (0. B. 6, p. 4); Poland (O. B. 8, p. 4). Decisions made in accordance with the preceding declarations: Japan (0. B. 2, p. 3); Great Britain, India, Canada (O. B. 2, p. 4); France (O. B. 2. p. 5); Union of South Africa (O. B. 3, p. 4); New Zealand, Australia (O. B. 3, p. 5); Siam (0. B. 4, p. 3); Belgium (O. B. 4, pt. 4); Portugal (0. B. 5, p. 4); Czechoslovakia (O. B. 6, p. 5); Persia, Kingdom of the Serbs, Croats and Slovenes (O. B. 6. p. 6); Poland (O. B. 8, p. 4).

Special agreements kept in force by virtue of the preceding decisions: Agreement between Great Britain and Switzerland (O. B. 2, p. 6); convention between France and Switzerland (O. B. 2, p. 9); agreement between Great Britain and Denmark (0. B. 2, p. 11); agreement between Great Britain and Sweden (O. B. 2, p. 14 and O. B. 6, p. 11); agreement between Great Britain and Norway (0. B. 2. p. 17 and O. B. 4, p. 7): arrangement between Belgium and the Netherlands (O. B. 4, p. 5); arrangement between France and the Netherlands (O. B. 5, p. 6); agreement between the United Kingdom and the Netherlands (O. B. 5, p. 7); arrangement between Belgium and Switzerland (O. B. 6, p. 9); agreement between Belgium and Denmark (O. B. 7, p. 7); agreement between Denmark and Poland (O. B. 8, p. 8). Protocol concerning an amendment to article 5: Resolution No. 32 (0. B. 2, p. 27); text of this protocol (O. B. 8, p. 87).

Ratifications of this protocol: Belgium (O. B. 4, p. 5) British Empire, Siam (0. B. 6, p. 7) Portugal (0. B. 7, p. 6); France (O. B. 8, p. 5); Greece (O. B. 8, p. 6).

Entry into force of this protocol: This protocol will come into force as soon as Japan, Persia, and the Kingdom of the Serbs, Croats and Slovenes shall have deposited their ratifications.

Adhesions to this protocol: Italy, Bulgaria (O. B. 6, p. 8) Czechoslovakia (O. B. 8, p. 7).

3 Resolution No. 7 (0. B. 1. p. 16).

The rules concerning the preparation of the certificates of airworthiness and of competency and licences were the subject of three resolutions of the I. C. A. N. which are operative. as regards the contracting States, in like manner as the annexes of the convention.

(a) Resollution No. 102 (0. B. 4, pp. 24 to 31) in force as from Feb. 10, 1924. (b) Resolution No. 114 (0. B. 5, pp. 19 and 20) in force as from Feb. 10, 1924. (c) Resolution No. 129 (0. B. 5, p. 29) in force as from Feb. 20, 1924.

The rules concerning the minimum requirements for airworthiness certificates were the subject of seven resolutions of the I. C. A. N. See hereinafter, Annex B, Note 1.

Each State has the right to refuse to recognize for the purpose of flights within the limits of and above its own territory certificates of competency and licenses granted to one of its nationals by another contracting State.

ART. 14. No wireless apparatus shall be carried without a special licence issued by the State whose nationality the aircraft possesses. Such apparatus shall not be used except by members of the crew provided with a special license for the purpose.

5

Every aircraft used in public transport and capable of carrying ten or more persons shall be equipped with sending and receiving wireless apparatus when the methods of employing such apparatus shall have been determined by the International Commission for Air Navigation.

This Commission may later extend the obligation of carrying wireless apparatus to all other classes of aircraft in the conditions and according to the methods which it may determine."

CHAPTER IV. ADMISSION TO AIR NAVIGATION ABOVE FOREIGN TERRITORY

ART. 15. Every aircraft of a contracting State has the right to cross the air space of another State without landing. In this case it shall follow the route fixed by the State over which the flight takes place. However, for reasons of general security it will be obliged to land if ordered to do so by means of the signals provided in Annex D.

Every aircraft which passes from one State into another shall, if the regulations of the latter State require it, land in one of the aerodromes fixed by the latter. Notification of these aerodromes shall be given by the contracting States to the International Commission for Air Navigation and by it transmitted to all the contracting States."

The establishment of international airways shall be subject to the consent of the States flown over.

ART. 16. Each contracting State shall have the right to establish reservations and restrictions in favour of its national aircraft in connection with the carriage of persons and goods for hire between two points on its territory.

Such reservations and restrictions shall be immediately published, and shall be communicated to the International Commission for Air Navigation, which shall notify them to the other contracting States."

ART. 17. The aircraft of a contracting State which establishes reservations and restrictions in accordance with Article 16, may be subjected to the same reservations and restrictions in any other contracting State, even though the latter State does not itself impose the reservations and restrictions on other foreign aircraft.

ART. 18. Every aircraft passing through the territory of a contracting State, including landing and stoppages reasonably necessary for the purpose of such transit, shall be exempt from any seizure on the ground of infringement of patent, design or model, subject to the deposit of security the amount of which in default of amicable agreement shall be fixed with the least possible delay by the competent authority of the place of seizure.

CHAPTER V. RULES TO BE OBSERVED ON DEPARTURE WHEN UNDER WAY AND ON LANDING

ART. 19. Every aircraft engaged in international navigation shall be provided with:

(a.) A certificate of registration in accordance with Annex A;

(b.) A certificate of airworthiness in accordance with Annex B;

(c.) Certificates and licences of the commanding officer, pilots and crew in accordance with Annex E;

(d.) If it carries passengers, a list of their names;

(e.) If it carries freight, bills of lading and manifest;

(f.) Log books in accordance with Annex C;

(g.) If equipped with wireless, the special licence prescribed by Article 14.

ART. 20. The log books shall be kept for two years after the last entry.

ART. 21. Upon the departure or landing of an aircraft, the authorities of the country shall have, in all cases, the right to visit the aircraft and to verify all the documents with which it must be provided.

5 Resolution No. 234 (B. O. 8, p. 36).

These regulations are fixed by resolution No. 201 (0. B. 7, p. 40) of the I. C. A. N., which is operative, as regards the contracting States, in like manner as the annexes of the convention and is in force as from June 28, 1925.

7 Resolution No. 11 (0. B. 1, p. 18).

ART. 22. Aircraft of the contracting States shall be entitled to the same measures of assistance for landing, particularly in case of distress, as national aircraft. ART. 23. With regard to the salvage or aircraft wrecked at sea the principles of maritime law will apply, in the absence of any agreement to the contrary.

ART. 24. Every aerodrome in a contracting State, which upon payment of charges is open to public use by its national aircraft, shall likewise be open to the aircraft of all the other contracting States.

In every such aerodrome there shall be a single tariff of charges for landing and length of stay applicable alike to national and foreign aircraft.

ART. 25. Each contracting State undertakes to adopt measures to ensure that every aircraft flying above the limits of its territory and that every aircraft wherever it may be, carrying its nationality mark, shall comply with the regulations contained in Annex D.

Each of the contracting States undertakes to ensure the prosecution and punishment of all persons contravening these regulations.

CHAPTER VI. PROHIBITED TRANSPORT

ART. 26. The carriage by aircraft of explosives and of arms and munitions of war is forbidden in international navigation." No foreign aircraft shall be permitted to carry such articles between any two points in the same contracting State.

ART. 27. Each State may, in aerial navigation, prohibit or regulate the carriage or use of photographic apparatus. Any such regulations shall be at once notified to the International Commission for Air Navigation, which shall communicate this information to the other Contracting States.10

ART. 28. As a measure of public safety, the carriage of objects other than those mentioned in articles 26 and 27 may be subjected to restrictions by any contracting State. Any such regulations shall be at once notified to the International Commission for Air Navigation, which shall communicate this information to the other contracting States.10

ART. 29. All restrictions mentioned in Article 28 shall be applied equally to national and foreign aircraft.”

CHAPTER VII. STATE AIRCRAFT

ART. 30. The following shall be deemed to be State aircraft:(a.) Military aircraft.

(b.) Aircraft exclusively employed in State service, such as posts, customs, police.

Every other aircraft shall be deemed to be a private aircraft.

All state aircraft other than military, customs and police aircraft shall be treated as private aircraft and as such shall be subject to all the provisions of the present Convention.

ART. 31. Every aircraft commanded by a person in military service detailed for the purpose shall be deemed to be a military aircraft.

ART. 32. No military aircraft of a contracting State shall fly over the territory of another contracting State nor land thereon without special authorisation. In case of such authorisation the military aircraft shall enjoy, in principle, in the absence of special stipulation the privileges which are customarily accorded to foreign ships of war.

A military aircraft which is forced to land or which is requested or summoned to land shall by reason thereof acquire no right to the privileges referred to in the above paragraph.

ART. 33. Special arrangements between the States concerned will determine in what cases police and customs aircraft may be authorised to cross the frontier. They shall in no case be entitled to the privileges referred to in Article 32.

CHAPTER VIII. INTERNATIONAL COMMISSION FOR AIR NAVIGATION

ART. 34. There shall be instituted, under the name of the International Commission for Air Navigation, a permanent Commission placed under the direction of the League of Nations" and composed of:

8 Resolution No. 18 (0. B. 1, p. 23). Resolution No. 228 (0. B. 8, p. 34).

10 Resolution No. 11 (O. B. 1. p. 18).

11 Resolutions Nos. 19 and 20 (O. B. 1, p. 23).