579.6L3/46

The Secretary of State to the Chairman of the American Delegation to the Third International Conference on Private Aerial Law (Cooper)

Sir: With reference to your designation as a delegate9 of the United States to the Third International Conference on Private Aerial Law to be convened in Rome, Italy, on May 15, 1933, the Department makes the following observations for your guidance in the efforts which you will make to have the drafts as finally adopted in Rome conform as nearly as possible to the viewpoint of the Government of the United States. There will be considered at the Rome Conference draft conventions relating to (1) precautionary attachment of aircraft and (2) liability for damages caused to third [Page 945]parties on the surface. These draft conventions were adopted at the Seventh Annual Session of the International Technical Committee of Aerial Legal Experts held in Stockholm, Sweden, in July, 1932. Copies of the French text and the English translation of the draft conventions adopted at Stockholm which are to be considered at the forthcoming conference in Home are hereinafter referred to in the list of enclosures to the present communication.10 This international committee on which the United States is represented by experts is engaged in the preparation of draft conventions on subjects of private aerial law for consideration at international conferences called for the purpose of taking final action on the drafts as adopted by this committee. The Conference to be held in Rome will be the third in a series of general international conferences called for the purpose of taking action on draft conventions adopted by the international committee mentioned.

The following observations have been prepared by the Department after consultation with the American experts on the International Technical Committee of Aerial Legal Experts.

Draft Convention Relative to the Precautionary Attachment of Aircraft

Prior to the Seventh Session of the International Technical Committee of Aerial Legal Experts held in Stockholm in July, 1932, the American experts on that Committee made certain observations with respect to the draft convention relative to the precautionary attachment of aircraft which had been perfected by the appropriate subcommittee of the International Technical Committee of Aerial Legal Experts and referred to that Committee for consideration at Stockholm. The observations of the American experts are contained in telegram No. 247 of July 12, 1932, to the American Embassy in Paris, the contents of which were forwarded to Stockholm. The views of the American experts were given due consideration at the Stockholm meeting and were, in part, met by the Committee in the adoption of its final draft of the convention relative to the precautionary attachment of aircraft which will be on the Agenda of the Rome Conference. The extent to which the views of the American experts prevailed at Stockholm is shown in despatch No. 550 of August 3, 1932, from the American Legation at Stockholm. The telegram to the Embassy in Paris and the despatch from Stockholm, mentioned above, are hereinafter referred to in the list of enclosures to the present communication. The draft convention relative to the precautionary attachment of aircraft as adopted at Stockholm is comparatively brief.

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You should keep in mind the observations of the American experts to the extent to which they were not adopted in Stockholm and endeavor to have the draft convention as finally adopted in Rome conform as nearly as possible to the views of the American experts as shown in the telegram to the American Embassy in Rome [Paris?] referred to above. In addition the Department calls attention to the following matters pertaining to this draft convention.

Article 1.

Article 1 in its present form is objectionable in that it is apparently sought to make it mandatory upon the governments that legislation be enacted to give effect to the convention. The American delegates should seek to have this article so amended as to provide that the contracting parties shall agree to recommend to their legislative bodies that they adopt the legislative measures referred to in the article.

Article 2.

As there would appear to be some doubt whether this Government could properly legislate by treaty or by federal statute regarding matters of attachment of property within a state and not used in interstate or foreign commerce, the American delegates to the Rome Conference should seek to have such language used in article 2 of the convention as to make it clear that its terms shall apply only to aircraft of a contracting state in the territory of another contracting state. While article 7 of the convention provides that the convention shall apply on the territory of a contracting state to any aircraft registered in another contracting state, it is not clear whether it is intended that the provisions of the convention shall be applied only to such aircraft.

Draft Convention Relative to Liability for Damages Caused to Third Parties on the Surface

The American experts have not heretofore commented on this draft or assisted in its preparation. The present draft convention which was adopted at the Seventh Session of the International Technical Committee of Aerial Legal Experts held in Stockholm in July, 1932, includes the provisions of the draft convention relative to liability for damages caused to third parties on the surface as adopted at the Fifth Session of the International Technical Committee of Aerial Legal Experts held at Budapest in October, 1930, as well as provisions concerning the guaranties to be furnished by the operator adopted by the Committee at its Seventh Session in Stockholm. The American experts were not appointed until after the meeting at Budapest and were unable to take part in the meeting at Stockholm, although appointed just prior to that time.

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general observations

The convention in its present form has to do particularly with damages caused to third persons and to their property on the ground resulting from the flight of aircraft. The status of such liability has never been clearly determined in the United States. It has been contended that under the common law and without statute the rule in the United States is and should be that the owner or operator of aircraft is responsible for damages caused to third persons on the ground by the falling of an aircraft only when it is proven by the injured person that the injury was caused through the negligence of such owner or operator of such aircraft. On the other hand, in approximately twenty States of the United States, the rule has been changed by statute and the liability of the owner of the aircraft has been held to exist from the mere fact that the injury was caused to third persons on the ground through the flight of such aircraft or because of some object being thrown from or falling from such aircraft. During the last two years the entire question has been actively discussed by lawyers interested and at this time the Air Law Committee of the Commissioners on Uniform State Laws, as well as the Committee on Aeronautical Law of the American Bar Association, are engaged in seeking to agree upon the form of a new statute to be offered to the several States to cover this question.

These comments are made for the benefit of the delegates to the Third International Conference on Private Aerial Law to be held in Rome in May, 1933, so that the delegates will understand that the rule of absolute liability for damages to third parties on the ground has never been finally and definitely accepted in the United States as the proper rule of damages. The draft convention which will be considered at Rome is based primarily upon the acceptance of that rule. The experts representing the United States on the International Technical Committee of Aerial Legal Experts understand from a careful consideration of prior minutes of that Committee that this question was fully and thoroughly discussed over a number of years and that the members of that Committee who took part in these discussions finally agreed upon accepting the rule of absolute liability for damages caused to third persons or to their property on the surface and that all discussions and all draft conventions on the subject thereafter were based upon this theory. In the present status of the statute law and the common law of the United States, it is not clear that this theory can be said to have been accepted in the United States as a basis for liability to third persons and their property on the surface, although it is understood that at this time a majority of the two legal Committees, above mentioned, are in favor of the adoption [Page 948]of this rule. Less than half of the States of the United States as above indicated have adopted this rule in their statutes. This American position should be borne in mind by the American delegates at Rome in the discussions which will there take place.

Ostensibly the draft as now submitted was prepared to make aircraft operators absolutely liable, except in case of contributory negligence, for any damage to persons or property on the surface and in return for this liability to provide a reasonable limitation for the operator’s protection. It appears, however, that in the latter purpose the draft fails due to the following provision in Article XI:

“The operator shall not be entitled to avail himself of the provisions of the present convention which limit his liability if the damage results from his own negligence.”

It is believed that this provision will largely nullify the value of limitation since, in many cases, there may be found palpable negligence charges. Professor Antonio Ambrosini, Reporter for the draft convention, takes the position that this section would only remove the limitation in the event it could be shown that the operator personally was guilty of “evil intent” or “gross negligence”. However, the draft convention as translated by this Department is susceptible of a broader interpretation.

The draft does not differentiate between aircraft operated for commercial work and for private pleasure flying. Private flyers will undoubtedly have a great deal of difficulty in meeting the requirements of the convention. In addition, the draft convention does not discuss the status of Government aircraft or aircraft used in Government services. It is felt that the Government of the United States would probably be unwilling that aircraft used and operated by the Army and Navy, or other Government services, should be covered by a convention of this character and it is believed that the Government of the United States would probably not desire to obligate itself to carry liability or other similar insurance as required by this draft convention. In the circumstances, you should make every possible effort to have the convention in its final form so worded as to exempt Government aircraft from these provisions.

comment by paragraph

Article 1, Paragraph 1.

As heretofore pointed out, this article states the basis of the entire draft convention. The following comments are submitted:

(a)
The clause “any damage caused by an aircraft in maneuvers or in flight to persons or property on the surface” might be used as the basis for claims of liability for damage to passengers before leaving [Page 949]the ground or damages to persons who have already legally become passengers and are on a recognized airport waiting to embark. The liability of aircraft to passengers has already been fixed by the Convention for the Unification of Certain Rules Relative to International Transportation by Air signed at Warsaw, Poland, on October 12, 1929,11 during the Second International Conference on Private Aerial Law and should not be varied or changed by the proposed convention relative to liability for damages caused to third parties on the surface to be considered at Rome.
(b)
It is felt that the proposed convention should be so modified as to show that employees of the carrier, voluntarily assuming the risk of injury from aircraft in flight, are not to be included among those persons entitled to the benefit of the convention.

Article 1, Paragraph 2.

This paragraph provides that the absolute right of compensation to the person on the ground who has been injured or whose property has been damaged “may be reduced or avoided only in case of negligence on the part of the injured person and in accordance with the provisions of the law of the Court before which the case is brought”. Attention is directed to the fact that subsequent articles of the draft convention contemplate the possibility of suits being brought in different courts by different persons injured in a single accident or giving to a single person injured the choice of different jurisdictions. It is submitted that the carrier ought not to be subjected to different rules of liability arising out of a single accident, and that some provision should be made to cover this situation. It is, of course, realized that if suit is brought against the carrier at the home office of the company because of an accident which has occurred in a foreign country, serious difficulty might arise in applying the law of the country of the accident in the court in which suit is being brought. The problem is a difficult one, but the present language of the draft convention ought not to be agreed to without most careful consideration as to its results.

Article 2.

It is felt that this article should be so amended as to make it clear that it refers solely to liability to third parties on the surface.

Article 2, Paragraph (a).

As at present drafted, paragraph (a) is objectionable in that strictly construed it might be held to make the carrier liable for damage resulting from a falling object even in cases where the object is dropped by a passenger over whom the operator has no practical control. This objection would seemingly apply also to the language of paragraph 2.

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Article 2, Paragraph (b).

Strictly construed, paragraph (b) of article 2 might be held to include liability of the operator of the aircraft for some injury inflicted by one passenger on a fellow passenger, but it is not believed that such is the intention of the present draft of the convention. With reference, however, to third persons on the surface, the operator is apparently held to be liable if a passenger over whom the operator has no practical control intentionally drops something from the aircraft and causes injury on the surface. Suppose, for example, that a passenger, without the knowledge of the operator of the aircraft, should carry a bomb on board the aircraft, and should drop the bomb from the aircraft while in flight and cause tremendous damage on the surface. It is submitted that the present language of paragraph (b) would leave the operator of the aircraft responsible for that damage unless such operator could prove that he could not have prevented the passenger from causing the damage. This leaves too heavy a practical burden of proof on the operator. It is believed that the words “and without the operator or his agents being able to prevent it” should either be omitted or followed by some such language as “by the exercise of reasonable care or precautions”.

Article 3.

Under this article the liability Attachés to “the operator of the aircraft”. Paragraph 2 has been translated by this Department as follows:

“Any person who makes use of the aircraft on his own account shall be considered operator of the aircraft.”

It is suggested that this definition is very broad and might be construed to cover (a) the commercial transport operators, (b) any person who travels by air, particularly if the aircraft is not on a regular scheduled trip, and (c) persons shipping freight or goods by air who have directed the carrier as to the route to be used in reaching his destination or have otherwise indirectly controlled the flight. In recent years shippers of goods in the United States by automobile truck have been held responsible in certain cases for damages caused by the truck in transit when the owners of the freight exercised some degree of control over the route traversed by the truck from the time of the departure, et cetera. It is believed that the definition of the word “operator” in the draft convention needs further consideration.

Article 3, Paragraph 3.

At the present time the Department of Commerce regulations in the United States do not provide for the registration of the name of [Page 951]any person other than the owner of the aircraft. It is believed, however, that if the proposed convention should be adopted and ratified by the Government of the United States proper provision could be made by Departmental regulation for the registration of the name of the operator as distinguished from the owner. On the other hand, no protection seems to be included in the convention against the registration of a dummy operator, without responsibility, thereby possibly affecting the rights of injured persons.

Article 4, Paragraph 1.

In providing liability to the extent of the value of the aircraft at the place and time it was first put into service, it is not entirely clear whether this refers to the value of the aircraft (a) when new, (b) when first put into service by the operator, (c) or to the value at the commencement of the flight during which the accident occurred. In this connection the question arises as to whether the owner of a second-hand airplane should be held liable up to the value of the original cost or the value at the time he purchased it and placed it in the service.

Article 4, Paragraphs 2, 3 and 4.

The maximum liability figure of approximately $200,000 exclusive of liability for damage to passengers and cargo appears to be out of all proportion to experience thus far with aircraft operation. The provisions referred to differ fundamentally from the method of insuring in this country in that there is no individual loss limitation. Thus, if only one person on the surface were killed, it would seem from the wording of the present draft convention that he might recover $200,000. In this connection it should be borne in mind that experience in this country has conclusively proved that where insurance is compulsory and limits are set by regulation, juries will bring in verdicts corresponding to those limits. It may also be observed that in the United States statutory limits have been set for wrongful death in a large number of states and that these limits range from $5,000 to a maximum of $15,000. The so-called limitations in the present draft convention are not at all consistent with those fixed for passengers and cargo by the terms of the Convention for the Unification of Rules Relative to International Transportation by Air signed at Warsaw on October 12, 1929. That Convention provides for a 125,000 franc limitation per person which seems to be a much fairer treatment of the operators than is provided for in the proposed convention relative to liability for damages caused to third parties on the surface to be considered at Rome.

While persons under no contractual relation with the operator may be entitled to more than persons in that relation, nevertheless, the [Page 952]$200,000 figure seems hardly justifiable. It is believed from a thorough consideration of the matter that, in order to be of practical value, the proposed convention should provide for a maximum limitation for each person killed or injured. The American delegates at the forthcoming conference in Rome should, therefore, advocate such a maximum limitation. As of interest in this connection your attention is invited to the comments of the United States Aviation Underwriters in a communication dated January 13, 1933, to Colonel Clarence M. Young, one of the American members of the International Technical Committee of Aerial Legal Experts, a copy12 of which is included in the enclosures to the present communication.

Article 5.

As a practical consideration, it is believed that this provision may cause serious difficulty in settling and adjusting claims. If the carrier makes any settlement or adjustment of claims after an accident and before the time has elapsed for the filing of claims, the carrier may find it has paid more than the proportional amount which the party settled with would have been entitled to. In addition, difficulty may be found in determining what proportion a death claim shall have as against a claim for minor injury unless, as above suggested, the proposed convention is modified to show the maximum amount of liability caused to the several persons injured in a single accident.

Article 7.

In connection with article 7, it is again pointed out that in fixing maximum liability, such liability for injuries to persons should, in any event, be stated in terms of the maximum liability to each person injured.

Article 8, Paragraph 1.

It is not clear as to how this paragraph could be complied with by the United States if it should become a party to the proposed convention, unless it should require by statute that aircraft take out an insurance policy good in every country which ratified the convention. If, for example, an American aircraft leaves the United States on a voyage to Cuba and is insured for flights over Cuba, that aircraft would apparently violate the convention if it flew over some Central or South American country also a party to the convention but which country is not named in the insurance carried by the aircraft. It would seem that the only way in which the authorities of this Government could prevent this occurring would be to require every American aircraft before leaving the United States to be insured [Page 953]for flights over every contracting state. This might create an insurance burden on the operators which would be difficult for the insurance companies to calculate. As a practical matter, it is suggested that insurance practice in this country restricts the liability of the insurer to flights which are in strict accordance with the rules and regulations of the Department of Commerce and restricts the use of aircraft to the agreed purposes as covered in the policy and with approved personnel.

Apparently, under the suggested draft of the convention, the insurer would be liable for damages occasioned by the aircraft even though operated in violation of laws and agreements. It is extremely doubtful whether such insurance could be obtained or would be written by responsible insurance companies in this country or perhaps elsewhere and the general purpose of the convention might therefore be defeated. Furthermore, it is not clear as to whether each aircraft must have a separate policy in the amount specified in article 4 or whether the policy can be a fleet policy in behalf of an owner of several aircraft, nor is it clear as to whether the policy must be taken out by the owner or operator if they are different persons. The American delegates to the Rome Conference should endeavor to have the provisions on these subjects clarified. It may be remarked in this connection that ordinarily insurance companies object to the issuance of policies insuring anyone other than the owner.

Paragraph 1 of article 8 should be so amended as to provide that each contracting state shall agree to recommend to its legislative body that the necessary legislation be adopted.

Article 8, Paragraph 2.

The very high limitation proposed in article 4 makes the suggested deposit of no practical value. With reference to the use of a bank guarantee in place of a policy of insurance, attention is called to the fact that under the laws of this country national banks are not authorized to act as a surety (U. S. C., Title 12, Section 92, p. 26513) and it is doubtful whether the Congress of the United States would ever be willing to enact legislation authorizing the national banks in this country to become sureties. However, in view of the fact that the provision of paragraph 2 concerning a bank guaranty instead of insurance would be optional with each contracting state, it is not believed that the adoption of a provision such as is called for by paragraph 2 would be a serious matter so far as this Government is concerned.

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Article 8, Paragraph 3.

There is doubt as to what is meant by the term “public insurance institution”. The Department is informed that in prior drafts of the proposed convention provision was made that the insurer might be approved for the risk by any state which is a party to the convention. It is believed that it would be preferable to substitute this provision for the present proposal that the insurer must be approved by the state of the registry of the aircraft. If the aircraft operator should be limited to obtaining insurance in companies approved solely by the state in which his aircraft is registered, situations might develop where the cost of such insurance would be much greater than if the operator could obtain his insurance in the open market and in a company or companies approved by one or more states parties to the convention, even though not specifically approved by the state of the registry of the aircraft. On the other hand, it is realized that there may be some difficulty in bringing about the adoption of the rule suggested in view of the fact that some states may insist on the rule as now drafted because otherwise they would have no control over the validity of the insurance on aircraft registered in their own territory and flying over that territory while engaged in international flight.

Article 9, Paragraph 4.

This paragraph should, it is believed, be clarified since it leaves very broad powers in the authorities of a foreign country to hold irregular the documents of insurance issued in the state of the registry of the aircraft and the paragraph does not make plain who has a right to determine whether the insurance documents are regular or irregular.

Article 11.

This is in some respects the most important provision of the proposed convention. It has been suggested that paragraph 1 of article 11 does not apply unless it happens that the negligence is the negligence of the operator of the aircraft and not that of his employees. The convention is ambiguous if this is its intention. If, for example, the operator of the aircraft is a corporation, then the negligence of the pilot of the aircraft would certainly be the negligence of the operator, and the operator would not have the benefit of the so-called limitation of liability. Moreover, it appears that a presumption is raised against limitation of liability instead of in favor of limitation of liability and that the operator might not be able to limit his liability unless he can prove positively that the damage did not result from his negligence. The Department desires to have the American delegates to the forthcoming conference at Rome submit for consideration the following two propositions. [Page 955]First, that the convention ought to provide for a definite limitation of liability irrespective of negligence; otherwise the convention will hinder seriously the development of transport by air. Second, if any other rule is to be adopted, then the limitation of liability ought to be available to the owner or operator of the aircraft if the aircraft sets out on its voyage in an airworthy condition and properly manned. This would create a rule somewhat analogous to limitation of liability applicable in maritime law. If paragraph 1 of article 11 is included in the draft of the convention, it is believed that much litigation will necessarily follow. In every case of serious damage contention would probably be made on behalf of the person injured that negligence existed and that the limitation of liability could not apply. One of the great advantages of any law authorizing limitation of liability is the lessening of litigation and this should be borne in mind in the formulation of the final draft of the convention.

Article 11, Paragraph 2.

This paragraph is objectionable, especially in view of the fact that article 8, paragraph 1, gives full authority for the state of registry of the aircraft to provide proper penalties for failure to carry insurance. As being of interest in connection with this paragraph, the attention of the American delegates is invited to the discussion in regard to article 11 by Major K. M. Beaumont in a report submitted by him to the International Chamber of Commerce’s Committee on Transportation by Air in which Major Beaumont discussed the draft convention relative to the liability for damages caused to third parties on the surface as adopted in Stockholm in July, 1932. Major Beaumont’s report14 is referred to in the description of enclosures to this communication.

Article 13.

The meaning of this article is not clear. If it means that the courts in the domicile of the defendant and the courts of the state where the damage was caused have sole jurisdiction to hear actions for compensation, then the provision is not objectionable. It is believed, however, that the article should be amended so that it would be clear that the right of action, as, for example, against the insurer as authorized under article 12, could not be brought wherever that insurer may happen to be found. For example, the insurer might be doing business in Germany. That insurer may be an American company which has written a policy of insurance on American aircraft involved in an accident in South America. It should be clear that the insuring company could be sued only in the United States (domicile of the [Page 956]insured owner or operator of the aircraft) or in the country where the accident occurred.

Article 14, Paragraph 1.

The phrase “if the injured party proves that he has been unable to have knowledge …15 of the damage” might leave an easy path to fraudulent claims. Lawyers familiar with personal injury litigation have had much experience with claimants contending that internal or other injuries developed after the accident. As this article is now drafted, an alleged injured person could contend that he did not have knowledge until almost four years after the accident of the fact that the accident had resulted in a later developed injury when, under the provisions of articles 1 and 2, he could then bring suit. With reference to suspension of limitation from delay by the injured person in learning the identity of the person liable, it is suggested that this is also of doubtful advisability. The convention contemplates that the name of the owner will be shown on the registry and that the registered owner will be liable if the operator is other than the owner, and if the name of the operator is not shown on the registry. The present draft of the article seems to give an unnecessary advantage to the injured person. Certainly within the space of two years any person injured should be able to ascertain the name of the registered owner of the aircraft. Experience in the United States has indicated that any provision giving elasticity to statutes of limitation has been the cause of filing fraudulent claims. It is realized that this situation is attempted to be cured in paragraph 2 of article 14, making a final limitation of four years, but this seems to be perhaps excessive.

Article 14, Paragraph 3.

It seems that this paragraph is in conflict with paragraph 1 of Article 14. Paragraph 1 provides for suspension of limitations in the cases enumerated. Paragraph 2 may provide for other causes of suspension, or may mean that the causes of suspension set up in paragraph 1 are not applicable to those countries where lack of knowledge is not a recognized cause for suspension of the statute of limitations. The delegates to the forthcoming conference at Rome should advocate that article 14 provide a definite, fixed and final limitation on all actions arising under the convention without qualifications. Otherwise, grave difficulties may be encountered in obtaining the insurance required by the convention. Insurance companies necessarily must and will insist on knowing when and under what circumstances their liability has terminated and the longer the period of limitation, the greater will be the premium necessarily charged.

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Article 15.

There is some uncertainty as to the meaning of the French text of this article. If any provision such as is contemplated by the article is to be included in the convention, the American delegates should suggest that language be used which clearly means that the executors, administrators or other personal representatives may be made defendants in actions for damages after the death of persons liable. If such a provision is adopted, it should be definitely provided that an action such as is contemplated by the article may not be brought against the executors, administrators or other personal representatives after the estate has been settled and distributed in accordance with the provisions of the local law.

Article 16.

The delegates of the United States to the forthcoming conference in Rome should endeavor to have this article clarified. It is believed that provision should be made to limit the application of the article so as not to include collisions between hydroplanes. In view of the reference to vessels in this article, it may be stated for your information that an international convention for the unification of certain rules relating to collisions at sea was signed at Brussels on September 23, 1910, during the Third International Conference on Maritime Law. This convention was signed on behalf of the United States with certain reservations but has never been ratified by this Government which is, therefore, not a party to this convention. However, in view of the fact that some references to the convention may be made by delegates to the Rome Conference representing countries which are parties to the convention and the American delegates may therefore desire to be acquainted with its terms, there is listed in the enclosures to this communication Treaty Information Bulletin No. 21 of June, 1931, issued by the Department of State, which contains, on page 22, an English translation of the convention as signed at Brussels. For your further information it may be stated that the instructions to the American delegates who signed the Brussels Convention of September 23, 1910, referred to above, are printed in Foreign Relations of the United States, 1910, pages 105 et seq. The report of the delegates who signed the Convention is printed in Foreign Relations of the United States, 1911, pages 18 and 19. This publication may be consulted at the American Consulate General or the American Embassy in Rome. As of possible further interest, it may be added that international rules for navigation at sea as in force under the statute law of the United States are contained in the United States Code, Title 33, Chapter 2, pages 1050 et seq. 16 This publication may also be consulted [Page 958]at the American Consulate General or the American Embassy in Rome.

On May 31, 1929, the delegates to the International Conference on Safety of Life at Sea signed at London an international convention for the safety of life at sea, article 4017 of which contains provisions recommending the adoption of certain alterations in the international regulations for preventing collisions at sea. This convention was signed on behalf of the United States but has not yet been ratified by this Government, nor has this Government adopted the proposed alterations in the international rules for the prevention of collisions at sea embodied in Annex 2 to the Convention. A copy of a pamphlet entitled “International Conference on Safety of Life at Sea, 1929. Convention and Final Act”, is among the enclosures to this communication.

Article 40 of the Convention for the Unification of Certain Rules Relative to International Transportation by Air signed at Warsaw, Poland, on October 12, 1929, reads as follows:

  • “(1) The High Contracting Parties may, at the time of signing, of depositing their ratifications or adhering, declare that their acceptance of the present Convention does not apply to all or part of their colonies, protectorates, territories under mandate, or any other territory subject to their sovereignty or authority, or to any other territory under suzerainty.
  • “(2) They may, accordingly, subsequently adhere separately in the name of all or part of their colonies, protectorates, territories under mandate, or any other territory subject to their sovereignty or authority, or any other territory under suzerainty.”

The American delegates to the Third International Conference on Private Aerial Law should advocate the incorporation of a similar article in the proposed conventions relating to (1) precautionary attachment of aircraft and (2) liability for damages caused to third parties on the surface in order that it may be discretionary with each contracting state to have the conventions made applicable to territories under its jurisdiction. In view of the fact that these conventions deal with new and untried principles, this Government considers that, in the event that it should become a party to the conventions their application should be limited to continental United States of America, excluding Alaska. If, therefore, such an article is agreed to, you should, at the time of signing the conventions, make a declaration such as is referred to in paragraph 1 of article 40 of the Warsaw Convention.

The comments herein made are considered necessary in order that the American delegates to the Third International Conference on Private Aerial Law may fully understand the aviation conditions in the [Page 959]United States which would be affected by the proposed conventions. Compulsory insurance is almost unknown in the United States. It exists in one or two states in connection with the issuance of automobile licenses. In some states there is no uniformity of opinion as to whether it has worked well. The application of compulsory insurance to aircraft is a far-reaching experiment. Its cost may seriously deter private operation of aircraft except for the wealthy. On the other hand, it is realized that proper protection should be given innocent third persons on the ground who, for instance, may be injured by falling aircraft and whose property may be seriously damaged thereby. It is felt that the convention relating to the liability for damages caused to third parties on the surface should be carefully redrafted to provide as herein indicated (a) that the limitation of liability shall be applicable to every accident, whether or not caused by negligence and (b) that the limitation of liability shall apply as a maximum to each person injured as well as a total maximum liability to all injuries resulting from a single accident.

The Department is in receipt of despatch No. 3478 of April 8, 1933, from the American Embassy at Paris transmitting a copy of a communication dated March 27, 1933,18 from the Secretary General of C.I.T.E.J.A. (International Technical Committee of Aerial Legal Experts) in which the Secretary General asks the experts on this Committee to have their Governments consider whether they would be in favor of instructing their delegates to the Third International Technical Conference on Private Aerial Law to favor the adoption by the Conference of a resolution reading as follows:

“The Conference,

“Considering the advantage to all users of air navigation of being able, in a proper case, to be informed on the text elaborated by the international conferences on private air law,

“Considering that the C.I.T.E.J.A. constitutes its permanent expression,

“Entrusts to the C.I.T.E.J.A. the duty of giving its opinion or interpretation on the texts of international conventions on private air law when it is requested to do so through a public administration or an international organization, without prejudice to the right of interpretation belonging to the judicial power whenever a difference shall have been laid before the latter.”

It is the understanding of this Government that the International Technical Committee of Aerial Legal Experts is an international organization charged with the duty of preparing and adopting draft conventions on private air law for consideration at international conferences called for the purpose of considering the drafts. It is the view of this Government that an international organization acting [Page 960]as a drafting committee in the preparation of draft conventions on air law should not be clothed with the authority of interpreting the conventions after they have been adopted by that committee and finally acted upon at an international conference such as the one to be held in Rome in May, 1933. Notwithstanding the reservation of the right of the judicial power to pass upon the conventions as set forth in the resolution proposed by the International Technical Committee of Aerial Legal Experts for adoption at the forthcoming conference in Rome, it is believed that the proposed resolution would greatly increase the powers of this international committee. It is suggested in this connection that the adoption of a resolution such as the one proposed might place an obstacle in the way of a possible decision on the part of this Government to become a party to the Convention for the Unification of Certain Rules Relating to the Liability of Aerial Carriers signed at Warsaw on October 12, 1929. It is not understood how such a resolution as the one proposed could, if adopted at the Rome Conference, be made binding on countries which are parties to the Warsaw Convention. Nevertheless, the mere adoption of the resolution would seem to have potentialities which it is believed might well be avoided. In this connection, you are informed that the American Embassy in Paris has been instructed by telegram to inform the Secretary General of the International Technical Committee of Aerial Legal Experts that this Government does not concur in the proposed resolution and is therefore not in a position to instruct its delegates to the Third International Conference on Private Aerial Law to support the resolution.

For your information and guidance in the event that it should be proposed at the Rome Conference that the conventions include an article containing a general arbitration clause with respect to any differences that may arise between countries parties to the conventions, you are advised that this Government is not represented on the Permanent Court of International Justice. However, the American delegates at the Rome Conference are authorized to support a general arbitral clause which would provide in the alternative for the submission of disputes to the Permanent Court of International Justice or, if any party so demands, to arbitration as provided for by the Convention for the Pacific Settlement of International Disputes, signed at The Hague on October 18, 1907.19

There are enclosed herewith copies of a number of documents which the Department feels may be of interest for reference purposes to the American delegates to the Third International Conference on Private Aerial Law. These documents are described in detail in the [Page 961]list of enclosures to this communication. The observations and instructions in the present communication have also been communicated to the other American delegates to the Rome Conference, who have likewise been furnished with copies of the enclosures to this communication.

Very truly yours,

For the Secretary of State:
Wilbur J. Carr
  1. The American delegation was as follows: Chairman of the delegation: John C. Cooper, Jr., Chairman of the Committee on Aeronautical Law of the American Bar Association; delegates: Theodore Jaeckel, Consul General at Rome; John Jay Ide, Technical Assistant in Europe for the National Advisory Committee for Aeronautics; alternate delegate: Harold H. Tittman, First Secretary of Embassy, Rome.
  2. For English translations of the draft conventions on the agenda of the Conference at Rome, see Department of State, Treaty Information, Bulletin No. 36, September 30, 1932, pp. 13–18.
  3. Effective February 13, 1933; as to the United States, October 29, 1934; adherence of the United States declared June 27, 1934; declaration of adherence deposited at Warsaw, July 31, 1934; proclaimed by the President, October 29, 1934; 49 Stat. 3000.
  4. Not printed.
  5. 1926 edition.
  6. IIIeme Conférence Internationale de Droit Privé Aérien, vol. ii, p. 53.
  7. Omission indicated in the original instruction.
  8. 1926 edition.
  9. 50 Stat. 1121, 1166.
  10. Neither printed.
  11. Foreign Relations, 1907, pt. 2, p. 1181.