579.6L1A/294: Telegram

The Secretary of State to the Ambassador in France (Edge)

247. Clarence M. Young, Assistant Secretary of Commerce, and John C. Cooper, junior, member of Aeronautical Committee of American Bar Association, have been designated to represent United States on International Technical Committee of Aerial Legal Experts2 but will be unable to attend Stockholm meetings beginning July 20. So inform Secretary General and communicate to him before his departure from Paris following comment of American members on Draft Convention Relative to Precautionary Attachment of Aircraft approved First Commission April 7, 1932,3 which will be considered at Stockholm:

“We have carefully considered the foregoing draft and respectfully submit the following comments:

Article 2. In defining aircraft exempt from precautionary attachment, sub-paragraph (1) purports to exempt aircraft assigned exclusively to a Government service, including postal service, but excluding commerce. Sub-paragraph (2) exempts aircraft placed in service on a regular line ot public transportation, et cetera. Interstate and foreign United States mail is handled under contracts entered into between the Post Office Department of the United States and aircraft operators. Under sub-paragraph (1) such aircraft might not be exempt from precautionary attachment because in some cases such aircraft operators carry passengers as well as mail. Such aircraft [Page 941]carrying mail would not be exempt from attachment under sub-paragraph (2) unless mail happened to be carried upon an aircraft included within the definition ‘on a regular line of public transportation’. We therefore respectfully suggest that either sub-paragraph (1) or sub-paragraph (2) be amended to exempt from attachment aircraft carrying mail under Governmental contracts.

“With further reference to sub-paragraph (2) we realize that the terminology ‘regular line of public transportation’ was carefully discussed at the meeting of the First Commission. Nevertheless we respectfully suggest that this terminology is not yet clear to us, and perhaps might be further clarified if the words ‘regular line of public transportation’ were further defined by reference to lines ‘operating on fixed schedules,’ or some such similar terminology. It is assumed that the words ‘public transportation’ would include only aircraft operating as common carriers. In that connection we call attention to the fact that almost all American Companies operating aircraft insist that they are not doing business as common carriers, but have a right to limit and select business to be accepted, either passenger, baggage or freight. Perhaps, therefore, it would be better to further define the words ‘public transportation’ so as to include all commercial carriers, whether or not they be technically common carriers.

“With further reference to sub-paragraph (2) and sub-paragraph (3), we are not clear as to the exact effect of the words ‘ready to depart.’ It is not clear to us as to when an aircraft is considered ‘ready to depart.’ This definition might be limited only to such aircraft as are on a runway with engines warmed up, or it might refer to aircraft generally prepared for departure on its next ordinary or customary schedule. We understand that the purpose of the contemplated exemptions is to prevent interruption of commercial air navigation. Therefore, with reference to sub-paragraph (2) governing regular lines of public transportation, we suggest that aircraft ought not to be subject to seizure within a fixed time, for example, twenty-four (24) hours of the next scheduled departure of such aircraft. This provision is almost necessary to carry out the purpose of the exemption, and to give the carrier time to provide substitute equipment for the attached aircraft.

“With reference to sub-paragraph (3), this free time prior to departure is not so necessary, but we would prefer, as above stated, if the words ‘ready to depart’ were defined with somewhat more technical accuracy with particular reference to the manner of preparing commercial aircraft for departure.

Article 3. Sub-paragraph (1) provides that in case attachment is not forbidden by reason of the preceding article, a sufficient bond shall prevent attachment. We are not clear as to the situation with reference to threatened attachment of aircraft included within the classification of aircraft exempt from attachment. If a creditor threatens attachment of an aircraft which should be exempt, the present sub-paragraph (1) does not apparently authorize giving of a bond so as to prevent such attachment. If bond is given by the owner or operator to prevent attachment, it might thereafter be said that by giving such bond the owner or operator had admitted that his aircraft was subject to attachment. We therefore respectfully suggest that provision be made for giving bond in every case of threatened attachment.

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“With further reference to sub-paragraph (2), we suggest that more definite provision should be made as to the terms and conditions of the bond. The present paragraph covers only what shall be a sufficient amount of the bond without the customary statements of the condition of a sufficient bond.

Article 5. We have considered with interest the discussion at the meeting of the First Commission on April 7, 1932, where the language of the present article was adopted. We are inclined to believe that attachments should be discouraged. Nevertheless we respectfully suggest that the language of the article as now drafted be clarified so that it will definitely state whether or not the burden of proof is upon the attaching creditor to establish that the aircraft is not exempt from seizure. Ordinarily, and in most States of the United States, the burden is upon the owner of attached property to prove that it was exempt from attachment at the time of the seizure. In the United States the matter of exemption is always a matter of defense, which must be raised by and proved by the owner of attached property.

Article 7. We suggest that the words ‘international transportation’ be more exactly defined, as for example, in the Warsaw Convention, signed on October 12, 1929.”4

American members have no comment to make on draft convention on the guaranties to be furnished by the operator for damage caused third parties on the surface, to be considered at Stockholm. This draft supplements a draft convention adopted at the fifth session of the Committee held in Budapest before the designation of American members. Both drafts will be studied with a view to possible representation by the United States at the Third International Conference on Private Air Law to which these drafts will presumably be referred.

Request Secretary General to have assignments on commissions made for American members.

Legation at Stockholm being instructed by telegraph to designate member of the Legation staff to attend Stockholm meetings as observer to report on proceedings.5

Mail copy of this telegram to Stockholm.

Stimson
  1. This Committee, frequently referred to by the initials C.I.T.E.J.A., was established by a resolution adopted at the First International Conference on Private Air Law held at Paris, October 27, 1925. In May of 1926, the Committee held its first session; subsequently annual sessions were held (579.6L1A/297).
  2. For report of the First Commission, see Comité International Technique d’Experts Juridiques Aeriens (C.I.T.E.J.A.), Rapport et Avant-Projet de Convention relatifs à la saisie conservatoire des aéronefs, etc. (Document No. 163, Juin 1932).
  3. 49 Stat. 3000.
  4. Edward Savage Crocker 2d, Second Secretary of Embassy in Sweden, attended the meetings as observer.