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The Beginnings of an Aërial Law

Published online by Cambridge University Press:  04 May 2017

Arthur K. Kuhn
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Extract

During the year which has elapsed since the writer first devoted attention to some of the legal aspects of aerial navigation, very material progress has been made in the art itself. Longer and more regularly controlled nights have been recorded by both the dirigible balloon and the aeroplane type of aircraft, between stated localities on land, over territorial waters and even over lanes of commercial importance upon the high seas. A great number and variety of aircraft are being built for state as well as. private uses in large establishments erected in many countries for that particular purpose. The field of experiment and demonstration has constantly broadened. Great nations have established a special aeronautic service for use in conjunction with both the army and the navy. So great is the importance ascribed to the function of aircraft in the next great war that much attention is already directed toward the construction of special means for effectual defense. Indeed, an entirely new type of ordnance has resulted, having, as we shall see, a notable influence upon some questions of international law.

Type
Research Article
Information
American Journal of International Law , Volume 4 , Issue 1 , January 1910 , pp. 109 - 132
Copyright
Copyright © American Society of International Law 1910

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References

1 Aërial Navigation in its Relation to International Law. A paper read by the writer before the American Political Science Association at its session upon International Law, at Richmond, Virginia, December 31, 1908. Proceedings of the Association, 1908, p. 83.

2 “The Prospect of Aërial Navigation,” in North American Review, 1908, p. 337.

3 James C. Carter, Law, its Origin, Growth and Function, (1907) p. 257.

4 Annuaire of the Institute, 1900, p. 262.

5 Annuaire, 1902, pp. 25–86.

6 Annuaire, 1906, p. 305.

7 Mare liberum, cap. 5.

8 Meurer, Luftschiffartsrecht, (1909) p. 5.

9 Völkerrecht, II, p. 230.

10 Archiv für öffentliches Recht, XXIV, p. 196.

11 Meurer, op. cit., p. 11.

12 Proceedings, 1908, p. 87.

13 Bluntschli, Völkerrecht, § 314; Calvo, §§ 259, 290–291. Wheaton denominates it an imperfect right, only to be effectuated by convention. International Law, § 193 (8th ed.).

14 Moore, Digest of International Law, vol. 1, p. 623. Mr. Jefferson, while Secretary of State, asserted the claim, upon “the law of nature and nations.” Ibid. p. 624.

15 Phillimore, International Law, vol. I, p. 225; Hall, International Law, 5th ed., p. 140; Lawrence, International Law, § 112.

16 Institutes of the Law of Nations, vol. 1, p. 364.

17 American Journal of International Law, Official Documents, vol. 3, No. 4, pp. 331, 332.

18 Meurer, op. cit., p. 21; Fauchille’s Code, Annuaire, 1903, p. 19.

19 In the debate before the Institute, the French authority Weiss defended the view adopted in the text by the writer (once his humble pupil) with the following trenchant remark: “La thgorie de l’air libre conduirait à des notions imprécises et à des discussions sans fin. II faut se limiter aux questions pratiques.” Annuaire, XXI. p. 304. Von Bar reached a similar conclusion: “II est trop tôt pour formuler un principe sur la condition générale de l’air.” Ibid., p. 301.

20 Hall, International Law, p. 540.

21 Zorn, Kriegrecht zu Lande in seiner netiesten Gestaltung, p. 186.

22 Regulations annexed to the Convention concerning the laws and customs of war on land, Art. 29.

23 So Zorn, op. cit., pp. 185–187. He deplores the unsatisfactory condition in which this matter has been left by the Convention. Ibid., p. 179.

24 Report of Captain Crozier to the Commission of the United States to The Hague Conference. Holls, The Peace Conference at The Hague, p. 95.

25 See table of adherences, Scott, The Hague Peace Conferences, Vol. II , p. 161.

26 Deuxième Conférence int. de la Paix. Actes et Documents, I, p. 104.

27 See table of adherences, Scott, op. cit., Vol. II, p. 531.

28 H. W. L. Moederbeck, Die Luftschiffart, p. 103; G. O. Squier, Major, U. S. Signal Corps, The Present Status of Military Aëronautics, § 201.

29 See second proposal of Count Mauravieff in his letter of Jan . 11, 1899; also remarks of Col. Gilinsky before the first commission, Conférence int. de la Paix, 1899, part II , p. 49.

30 T. G. Tulloch, “The Aerial Peril,” Nineteenth Century, May, 1909.

31 German writers unhesitatingly ascribe this as the cause. Meurer, op. tit., p. 38. Hilty broadly declares that the original proposal was made purposely for the protection of London; in a note he adds: “Written 1903; confirmed February. 1904, in respect of all island nations; these have heretofore enjoyed a privileged situation.” He entirely overlooks that Great Britain never ratified the Convention of 1899. See also Archiv für oeffentliches Recht, Vol. XIX, p. 81.

32 Dienstbach and MeMeehen, “The Aërial Battleship,” in McClurc’s Magazine, August, 1909.

33 “The slaughter of our kind proceeds by land and sea and the Conference opened up a new element, the air, so that the bowels of the earth — unless infected by mines — are the only refuge of peace.” J. B. Scott, The Hague Peace Conferences, Vol. I, p. 654.

34 Meurer, op. cit., p. 39.

35 See Convention respecting the rights and duties of neutral powers and persons in case of war on land. Articles 3, 8, 9.

36 Meurer proposes that the Conference consider the advisability of excluding neutral air craft only from so much of belligerent air space as constitutes the actual field of operations. Op. cit., p. 40.

37 Article 24 (8). Correspondence and documents respecting the International Naval Conference held in London, December, 1908–February, 1909, p. 79 (official publication of the British Government).

38 Cooley’s Blackstone, 4th ed., Book II, p. 18.

39 Thomas’ ed. (Philadelphia, 1836), Book II, ch. I.

40 Digest, 42, tit. 24, pr. 22, § 4.

41 (1815) 4 Camp. 219.

42 (1865) Kenyon v. Hart, 34 L. J. M. C. 87.

43 Meyer v. Metzler, (1875) 51 Oal. 142; Electric Improvement Co. v. San Francisco, (1891) 45 Fed. 593.

44 (1870) L. R. 9 Eq. 671.

45 (1887) 4 T. L. R. 8.

46 Engineering. June, 1909, p. 793; L. Fox, “The Law of Aërial Navigation,” in North American Review, July , 1909, p. 101.

47 Reference is here made only to so much of the case as refers to the shooting of bullets in vacuo. Plaintiff in fact also proved that shots fired across another of his farms actually fell upon the land.

48 (1887) 4 T. L. R. 8, at page 9. As to this farm, “his Lordship did not look upon the ground of complaint as constituting a trespass in the strict technical sense of the term; but he did look upon such firing of bullets as grievances, which, under the circumstances, afforded the plaintiff a legal cause of action.” Ibid.

49 Pollock on Torts, 8th ed., p. 348.

50 Brett, Master of the Rolls, in Wandsworth Board of Works v. United Telephone Company, (1884) 13 Q. B. D. 904, at p. 915. In this case it was held that the maxim had no application to streets and highways, for the reason that only such property passes to the community as is necessary for and appurtenant to their use as such.

51 Coke upon Littleton, ut cit.

52 In effect 1862; § 185.

53 German Civil Code (in effect 1900), § 905.

54 Meurer, op. cit., p. 14.

55 To take effect 1912; § 667.

56 Pollock & Wright, The Expansion of the Common Law, pp. 125–6.

57 Das Luftschiff und die Rechtswissenschaft. p. 14. In the event of collision between voyaging air craft, the determination as to who is the guilty party will be a fine point indeed for the solution of the sufferers beneath! Ibid., p. 15.

58 Guille v. Swann, (1822) 19 Johns. 381; 10 Amer. Dec. 234.

59 “Law in the Air,” in National Review, March, 1909, pp. 78, 82.

60 Article 15, Annuaire of the Institute of International Law, 1902, p. 51.

61 Wharton, Criminal Law, 10th ed., §§ 274, 275.

62 Meili, Das Luftschiff im internen Recht und Völkerrecht, p. 43, n. 8.

63 See e. g. New York Penal Code, § 1991. This section enumerates a large number of offenses specifically directed against security of travel upon railroads; “if thereby the safety of any person is endangered, the offense is punishable by imprisonment for not more than twenty years.”

64 See e. g. Alex. Meyer, Die Erschliessung des Luftraumes in ihren rechtlichen Folgen, pp. 30–32.

65 Dienstbach and McMechen, op. tit., p. 350.