Aviation Regulation – History and Practice – Part 1
1 December 2015 Leave a comment
Aviation Regulation – History and Practice
It would not be an overstatement to say that the history of aviation regulation can be a history of commercial aviation. Indeed, the rules and regulations promulgated since the Paris Convention of 1919 have been largely driven by the technological advances of manned flight, beginning that December day in Kitty Hawk, North Carolina when the Wright Brothers first went airborne with the powered Wright Flyer.
This history will be presented in several parts. This first part will cover the Paris Convention of 1919, the Havana Convention of 1928, the Warsaw Convention and U.S. airmail contracts. Subsequent parts will cover foreign airmail contracts, early U.S. regulation, early European aviation, European airmail, European consolidation and expansion, the situation leading up to World War II, the Road to Chicago, the Chicago Convention, the Bermuda Agreement of 1946, the International Air Transport Association, the Federal Aviation Act of 1958, the role of the airline industry in international politics, the deregulation movement, the Airline Deregulation Act of 1978, the International Air Competition Act of 1979, Open Skies, liberalization of European aviation, the US-EU Air Transport Agreement, the Montreal Convention, Consumer Protection, Airline Certification/Fitness, the National Transportation Safety Board and a discussion of current issues.
EARLY ISSUES AND CONVENTIONS
Sovereignty over Airspace
Before manned flight, the “Air” was considered “free” and no individual state had authority over it. However, with no authority, state and national sovereignty, national interests and security were compromised. This was most apparent during World War I with the development of the flying machine as an instrument of war.
Paris Convention of 1919
The technical developments in aviation arising out of World War I created a completely new situation at the end of the hostilities, especially with regard to the safe and rapid transport of goods and persons over prolonged distances. However, the war had also shown the ugly potential of aviation; it had therefore become much more evident that this new and now greatly advanced means of transport required international attention and an urgent need for some kind of international regulation of aviation. Thus, at the Paris Peace Conference (Congrès de la Paix) of 1919 the idea of international collaboration in aviation matters was brought forward and, on 13 October 1919 the Convention Relating to the Regulation of Aerial Navigation was signed by 27 States. The convention also created the International Commission for Air Navigation (ICAN).
The convention recognized a state’s full and absolute sovereignty over its airspace; recognized the desirability of the greatest freedom of international air navigation consistent with state sovereignty and security concerns; and recognized the requirement that every aircraft possess the nationality of the contracting state. In addition, the convention provided for the safe conduct of air navigation, including provisions for airworthiness certificates, licenses for pilots and international rules for the air, including signals, lights, collision prevention and procedures for landing and moving on the ground.
Havana Convention of 1928
As a consequence of the failure of the United States to ratify and the join the League of Nations, and therefore not joining the convention, the rules and provisions of the Paris Convention did not apply to the Americas. As a result, there was a need for a separate form of international cooperation on a regional American basis.
During the 5th International Conference of the American States in Santiago, Chile, in 1923, a resolution was adopted providing for the creation of an Inter-American Commercial Aviation Commission to consider problems related to aviation. The Pan American Convention on Commercial Aviation was finalized in Havana on 20 February 1928. The Havana Convention was modeled after the Paris Convention and it applied exclusively to private aircraft (government aircraft were not included) and laid down basic principles and rules for aerial traffic, recognizing that every State had complete and exclusive sovereignty over the airspace above its territory and adjacent territorial waters. Clauses also enabled U.S. owned airlines to freely operate services within North and South America.
Warsaw Convention of 1929
With the growth of commercial international air transportation in the 1920s, there came a need to protect air carriers (at the time mostly state-owned with the notable exception of the privately owned air carriers in the United States) from open-ended liability in case of damage to or loss of cargo or baggage and injury or death of passengers. And, on the other hand, shippers and passengers needed to be reassured that if something went wrong they would have an effective remedy against the carrier and be compensated.
Thus after a series of conferences starting in 1927, the Convention for the Unification of Certain Rules relating to International Carriage by Air was signed in Warsaw in 1929, known as the Warsaw Convention.
The Convention applied to any international transportation of persons, baggage or merchandise by aircraft and provided for airline liability for death or injury to passengers; loss or damage to baggage; and loss resulting from delay in the transportation of passengers, baggage or merchandise. The dollar amount of liability was limited.
The Convention has been amended, most notably by the Hague Protocol of 1955, but will be superseded by the Montreal Convention of 1999 upon full ratification.
EARLY U.S. GOVERNMENT INVOLVEMENT IN AVIATION
Air Mail Contracts
Early U.S. government involvement in aviation dealt with the issuance of airmail contracts. The first act of Congress related to this was the Contract Air Mail Act of 1925 (Kelly Act) that authorized the Postmaster General to award contracts to private individuals or companies involved in the air transportation of the mail. Routes and tariffs were established and the airlines were given subsidies that encouraged the introduction of passenger service.
The Air Mail Act of 1930 (McNary-Watres Act) changed the way air mail contracts were awarded and eliminated competitive bidding. The Act encouraged companies to buy large aircraft and also stimulated the carriers to fill space on the aircraft with passengers. The Act was a product of Postmaster General Walter F. Brown’s request for legislation giving him authority to change postal policy. As a result, the Act gave Brown strong authority over the nationwide air transportation system. There were three main provisions of the Act: The first provision changed the way payments to airlines were calculated, rating them based on volume of mail, rather than weight. It also set a fee on planes of a certain size, whether it was flying mail or not, to discourage the flying of large amounts of junk mail and to encourage the carrying of passengers to increase revenue.
The second provision allowed any airmail carrier with an existing contract of at least two years standing to exchange its contract for a “route certificate” giving it the right to haul mail for 10 additional years. The third and most controversial provision gave Brown authority to “extend or consolidate” routes in effect according to his own judgment.
Soon, at what later became known as the “Spoils Conference” Brown invoked his authority under the third provision to consolidate the airmail routes to only three companies, friends of the administration of President Hoover, forcing out the small competitors: Boeing Air Transport (the northern airmail route), Transcontinental Air Transport, later Transcontinental and Western Air (TWA), (the mid-United States route) and Robertson Aircraft Corporation, later American Airways (the southern route). Brown also extended the southern route to the West Coast of the United States, and awarded bonuses for carrying more passengers and purchasing multi-engine aircraft equipped with radios and navigation aids.
Although this led to increased productivity and efficiency in the airline industry, the small airlines complained that they were left out of Brown’s scheme and a Congressional investigation followed. The “spoils” were exposed and as a result, the legality of the contracts awarded under Brown’s leadership were questioned.
On 19 February 1934, President Roosevelt canceled all existing airmail contracts, and, as a temporary measure, directed Army Air Corps General Benjamin D. Foulois to organize a new airmail operation using military planes and pilots. It did not work. The airmen were inexperienced in cross-country flying and the aircraft were ill-equipped. There were numerous crashes and the cost of flying the mail skyrocketed. By 10 March, 12 pilots had died in 66 crashes or forced landings. Could it be that these problems were a product of those provisions of the Havana Convention of 1928 that excluded government aircraft from its application? On 8 May, Roosevelt and then Postmaster General James Farley returned to private contract airmail.
The return to private airmail contracts came in conjunction with the Air Mail Act of 1934 (Black-McKellar Act). Under the Act, no airline that had held a contract before the government takeover could bid for a contract. To circumvent this, however, the airline companies simply changed their names: Boeing Air Transport became United Air Lines; TWA became TWA Inc., and American Airways became American Airlines. The Act’s main provision broke up the aviation holding companies, large corporations that owned both aircraft manufacturing companies and airlines. The Act also stated that the government would set airmail contracts, routes and schedules; fix subsidy rates and airmail payments; and regulate the airways and license pilots. The Interstate Commerce Commission (ICC) regulated rates and the Secretary of Commerce specified the equipment to be used.
END OF PART ONE
The next installment of this story, Part Two, will cover Foreign Air Mail Contracts, early U.S. Regulation of Air Transportation, European Air Transportation and the situation prior to World War II.