Pan Am Series – Part XLVIV – Pan Am’s 90th Anniversary Book

747-cover-1

SPECIAL ANNOUNCEMENT

Ninety years ago, Pan American Airways was modestly launched with a contract to fly the U.S. Mail from Key West to Havana, Cuba. This year, friends and supporters of Pan Am will commemorate this landmark event with the publication of a special 90th Anniversary volume that looks back at the history of the airline that helped mold the international commercial airline industry of today.

Pan Am – Personal Tributes to a Global Aviation Pioneer is being published by the Pan Am Historical Foundation (PAHF). A true collector’s item, this commemorative hard cover edition measuring ten and a half by twelve and a half inches will be the perfect coffee-table book and will feature a colorful dust jacket. It will contain more than 80 stories written by former Pan Am employees and international media friends who had personal experience with many of Pan Am’s key events during its history.

The anthology will recount the history of Pan Am from its first flight to its very last. It will be illustrated with more than 300 images, many in full color, from a variety of sources including the Pan Am Historical Foundation’s unique photo library. It will also include posters, promotional brochures, timetables and baggage tags, the very essence of our industry.

The expected publication date is early May.

The publisher is now offering the book for a pre-publication special price of $40 per copy with free domestic shipping ($25 for international). The offer is good through February 28.

Please visit the book’s  Website for purchase information

For additional information, visit the book’s Facebook Page.

Aviation Regulation – History and Practice – Part 4

Aviation Regulation – History and Practice

Part Four

This part covers the Post-War and the Regulated and Protectionist Era and the Role of Government in International Civil Aviation with a focus on the Cold War Era.

POST-WAR AND THE REGULATED AND PROTECTIONIST ERA 

United States Commercial Aviation

Often referred to as the “glory days of airline travel”, the Post-War and the Regulated and Protectionist Era witnessed the manufacture of large capacity, long-haul, piston driven aircraft, the introduction of and transition to commercial jet airliners that ushered in the “Jet Age”, and finally the development of high capacity, wide-bodied aircraft that started the path toward the end to economic regulation of the privately-owned U.S. airlines.

ConstellationIn the United States, the trunk carriers began the transition to peace-time operations, enjoying the technology developed during the war. There was a surplus of former military transport and bomber aircraft that were acquired by the trunk airlines and modified for commercial service. These surplus aircraft were also purchased by entrepreneurs who began to transport people and cargo on an ad hoc basis, with no fixed routes or schedules. Thus emerged a new type air carrier to be known as the non-scheduled or “non-skeds” to the public or as “large irregular carriers” to the CAB, which was powerless to regulate them under the current statutes. This was remedied by an amendment to the Civil Aeronautics Act that created supplemental air carriers and supplemental air transportation requiring these carriers to possess certificates of public convenience and necessity in order to operate as an air carrier.

In addition, the post-war years witnessed the granting of new “feeder” routes by the CAB. Although the trunk carriers claimed a right to these routes under their grandfather rights, the CAB nevertheless granted these new routes to another new class of air carrier known as “Local Service Carriers”, each with a regionally centered route system. Airlines such as Allegheny, Mohawk, Lake Central, Frontier, Bonanza, Ozark and Southern were all certificated during the 1945-1951 period. Because of the thin markets served by these carriers, they were awarded subsidies to keep operating in these markets.

These new air carriers, added to the already existing trunk carriers, meant an overcrowding of American airspace, and the regulation in place for air traffic control was soon considered antiquated.

In 1956, U.S. President Dwight D. Eisenhower appointed Edward Peck Curtis as Special Assistant for Aviation and was named to head a commission to study the dramatic increase in airline traffic and to propose ways to deal with airplane traffic jams at airports. This was followed by and event, however, that shook the very foundation of air traffic control.

800px-1956_Grand_Canyon_mid-air_collisionOn the morning of 30 June 1956, United Airlines flight 718 collided with TWA flight 2 over the Grand Canyon. With 128 fatalities this was at the time the largest loss of life in an aviation accident. This high profile accident, which took place in uncontrolled airspace, raised public concern for airline safety.

As a result, in 1957, Congress passed the Airways Modernization Act that established the Airways Modernization Board (AMB) headed by General Elwood Quesada.  The mandate of the Board was the development and modernization of the national system of navigation and air traffic control facilities to serve the present and future needs of civil and military aviation.

Two subsequent mid-air collisions between military aircraft and commercial airliners, one near Las Vegas, Nevada (United Airlines flight 736) on April 21, 1958, where 49 died, and another involving Capital Airlines over Brunswick, Maryland a month later on May 20 that cost 11 lives, showed further imperfections in the regulation of air traffic, particularly the need for unified control of airspace for civil and military flights.

The day after the Brunswick collision, Senator Mike Monroney and Representative Oren Harris introduced the Federal Aviation Act and two days after Brunswick, a stopgap presidential proclamation was issued that (1) required military jet aircraft to fly by Instrument Flight Rules while in the civil airways below 25,000 ft. (later reduced to 20,000 ft.) and (2) prohibited jet penetration swoops from high to low altitudes through civil airways.

Citing “recent midair collisions of aircraft occasioning tragic losses of human life,” President Dwight D. Eisenhower announced the White House’s support of the legislation on 13 June 1958. The Federal Aviation Act of 1958 passed Congress and was signed into law by Eisenhower on 23 August.

Taking a comprehensive approach to the federal role in fostering and regulating civilNewsign aeronautics and air commerce, the new law repealed the Air Commerce Act of 1926, the Civil Aeronautics Act of 1938, the Airways Modernization Act of 1957, and those portions of various presidential plans dealing with civil aviation. The legislation assigned the functions exercised under these repealed laws to two independent agencies — a new Federal Aviation Agency (FAA) and a Civil Aeronautics Board (CAB).

Provisions of the Act included:

Established the Federal Aviation Agency (FAA, later Federal Aviation Administration).

Abolished the CAA, and empowered the FAA to oversee and regulate safety in the airline industry and the use of American airspace by both military and civilian aircraft.

CAB continued as an independent agency and retained jurisdiction over route allocation, accident investigation and fare applications.

International routes subject to bilateral agreements between the US and the country involved and the CAB designated the carrier to operate the route.

DOT-FAA_Headquarters_by_Matthew_BisanzThe twenty years following the Federal Aviation Act of 1958 was characterized as an era of strict economic regulation in the United States and government protectionism in the rest of the world. The privately owned U.S. flagged airlines were restricted by the CAB as to where they could operate and what fares they could charge. Routes were awarded after long and costly proceedings where a carrier needed to prove the market applied for11.Wash-CAB actually needed the service. Fares were also subject to board approval and were calculated using a formula known as the Standard Industry Fare Level (SIFL). A small handful U.S. carriers operated international routes, most notably Pan American, TWA and Northwest, with Pan American being the dominant carrier and considered the “Chosen Instrument” for the United States.

Below are the regulated-era route systems and typical aircraft of the U.S. carriers American, Pan American, TWA and United:

AA 1976

MAP 1966 Sep

TWA 1978

UAL 74

DC-7B-N339AA-SAN-122562-860x539proctor

707-123B-N7522A-SAN-1263-860x486proctor

Electra - Proctor

DC-9 Mark Hansen

707 inaugural flight Orly

377-3 RA Scholefield

1049G-N7108C-LAX-564-860x461 proctor

707-131-N743TW-LAX-41863-870x504 proctor

DC-8 at LAX

DC-7-N6331C-SAN-dupe-860x503 proctor

On 15 October 1966, the United States Department of Transportation (USDOT or DOT) was established as the federal Cabinet department of the U.S. government concerned with transportation. It began operation on April 1, 1967 and is headed by the United States Secretary of Transportation.

Prior to its establishment, the Under Secretary of Commerce for Transportation administered the functions now associated with it. In 1965, Najeeb Halaby, then Administrator of the FAA, suggested to President Lyndon B. Johnson that transportation be elevated to a cabinet-level post, and that the FAA be folded into the DOT.

DOT’s mission is to “Serve the United States by ensuring a fast, safe, efficient, accessible, and convenient transportation system that meets our vital national interests and enhances the quality of life of the American people, today and into the future.”

Usdot_headquarters

Provisions related to air transportation include:

The FAA became an agency within the department.

The CAB remained an independent regulatory agency with jurisdiction over economic matters (routes and rates/tariffs).

Established the National Transportation Safety Board (NTSB) that took over the CAB’s accident investigatory function. NTSB was severed from DOT by the Independent Safety Board Act of 1974.

International Commercial Aviation

In the international arena, the foreign flagged airlines in the Post War era were largelyAir France state-owned and were controlled by their respective civil aviation authorities. International routes were governed by bilateral agreements between the countries involved and fares were agreed to at Traffic Conferences organized by IATA. The airline of the Soviet Union, Aeroflot, and airlines of Eastern European countries were also state-owned.

Tu114 Pereslautsev Alex

Foreign-flag carriers operating international routes were generally identified as being the “Chosen Instrument” of their owning countries.

377_boac

DC-7C-JA6302-LAX-3460-860x554 proctor

Government Role in International Civil Aviation

One very important factor during this era was the government role in international civil aviation, best illustrated by how governments dealt with aviation issues in three main areas: ICAO, IATA and bilateral Air Services Agreements (ASA). This era was dominated by the Cold War, and the international airline industry was in many respects, though not obviously, a pawn in the struggle between the super powers at the time.

Political considerations became apparent early, when, in 1947, ICAO became an agency ofIberia the United Nations.  In one case, as a condition of acceptance of ICAO into the UN, the Soviet Union demanded the expulsion of Spain from ICAO.  Spain was then considered a key terminal and a source or destination for a substantial amount of traffic, and its expulsion hampered the development of air facilities and aids to navigation that were essential to orderly air transport. In another case involving South Africa, thirty-one African nations demanded the expulsion of that country because of its apartheid policy. The attempt failed because of failure to meet the required advance notice.

Government involvement in IATA activities, although a non-governmental organization, was also prevalent. Under its Articles of Association, traffic or rate conferences were called whenever necessary. Each member had one vote, and each member had veto rights. These conferences made a variety of decisions, but only those that were unanimously agreed on and expressed in the form of a resolution were binding. However, because most international airlines at the time were state-owned, these resolutions would not be binding on the international airline until its government approved. Further, a member would not be bound if it certified the resolution was not coincident with the laws or official policy of its government. Despite these restrictions, however, government approval of IATA resolutions during this period was overwhelming. This can be attributed to the fact that most international airlines received instructions prior to attending the conferences and in some cases, airline representatives were actually state or government employees disguised as officials of the state-owned airline.

The government role in the industry, however, was most intense and interesting at the bilateral level. This was particularly true during the Cold War and the role of government was interpreted in terms of foreign policy. The international airline could either be an instrument of foreign policy or it could reflect or parallel the foreign policy of a country. A country may also use its international airline to gain political favors from other countries. Here, the key to successful negotiations was bargaining power, or the ability to influence other countries in a way that would contribute to the economic success of the home country’s airline. It was also entirely possible that an airline’s profitability could be damaged because something of value to a national airline could be traded away by government to meet a governmental objective.

For the most part the countries of the international airlines exchanged routes on a reciprocal basis and when both had equal bargaining power. A country with greater power, however, can demand more for its routes. In a 1957 case, KLM Royal Dutch Airlines appliedDC-7C-PH-DSC-KLM-IDL-661-Bob-Proctor-860x499 for additional routes in the United States. The U.S. government was not prepared to grant these additional routes because the Netherlands had nothing to offer in return. To the Dutch, KLM was one of the Netherlands’ biggest industries that was a symbol of Dutch internationalism and initiative. Thus, to obtain the desired routes, the Dutch offered a continuing cooperation with the North Atlantic Treaty Organization (NATO). This was acceptable to the US and the routes were granted. The granting of airline rights to foreign governments in exchange for political support, military bases or troop contributions to NATO were regular bargaining tools of the U.S. in order to maintain its military superiority over the Soviet Union.

ASAs can also be subject to disputes between the parties and at times an injured party might resort to counter-measures to protect its interests. This was illustrated in a case between Pan American and Air France in connection with the bilateral ASA between the U.S. and France. Under that agreement Pan American was authorized a scheduled service between Paris and London. However, because of the aggressive subsidies being provided 747-121-N740PA-LAX-102184-860x509proctorby the French government to Air France, Pan American decided to substitute a smaller, more economical  aircraft for the 747 already scheduled on that route (gauge change). The French government refused on the basis ranging from assertions of national honor (Pan American flying anything smaller than a 747 into Paris would be an affront) to the more pragmatic reason that Air France would enjoy the prospect of forcing its competitor to run a grossly unprofitable route (with the 747). Finally, the French compelled Pan American to cease its flights to Paris. The U.S. government proposed arbitration to resolve the dispute, but for two years the French refused. The U.S. eventually made a reprisal by suspending Air France’s Paris-Los Angeles route, long established under the ASA.

This got the French government’s attention and France agreed to arbitration. The issues were (1) whether Pan American could change gauge and (2) whether the U.S. could unilaterally suspend Air France’s route to Los Angeles. The first issue was resolved in favor of Pan American. In the case of the second issue, the French argued that as the ASA provided for arbitration, it was impermissible for the U.S. to engage in unilateral self-help measures. The arbitrator ruled, however, that it was France that had been setting up707-328-AF-LAX-760-Bob-Proctor-860x474 barriers by not agreeing to arbitration and that it was only the U.S.’s retaliatory move terminating the Los Angeles route that brought France to the table. In short, the arbitrator ruled that counter-measures were a necessary part of the punch and counter-punch often needed to get parties to submit their disputes to arbitration or other method of binding settlement.

One point made in this case was that in any use of counter-measures, there could always be a risk of escalation. France could have cut off Pan American’s New York-Paris route and then the U.S. could have retaliated by economic or other sanctions outside the air transport sector, and so on. The point here is that although the underlying reasons for the dispute were aviation related, there could have been other non-aviation factors driving the actions of the French government.

Beyond the government role in ASAs, and as alluded to above, an international airline during this era could be a reflection of or parallel the foreign policy of its country. A good example of this is Aeroflot, then the only international airline of the Soviet Union. As previously mentioned the Soviet Union did not attend the Chicago Convention. The Soviet policy at the time was that of isolationism and civil aviation was kept at a low priority. This changed in the 1950s when the Soviet government switched to a more internationalist policy in relation to the Eastern Bloc countries, and it was reflected in Aeroflot’s opening of new routes to capitals in Eastern Europe. The 1960s also witnessed some dramatic changes after the switch from the Khrushchev regime to the Brezhnev-Kosygin regime. Here the policy changed to greater flexibility toward the Western powers, and Aeroflot began operating to countries outside the Soviet bloc and by 1967 almost all Western European capitals. In 1968, after several years of negotiations, service was inaugurated between the U.S. and the Soviet Union. The agreement best illustrates the concepts of political considerations in bilateral negotiations and the notion of the “Chosen Instrument”. The airlines involved were Pan American and Aeroflot.

If there was any route in Pan American’s history that could be designated as a “Chosen Instrument” route, the U.S.-U.S.S.R. could be that route. Pan American was the selected airline because it was recognized as the primary U.S.-flag carrier as manifested by the So16A-Hambletonviet Union’s aviation officials making the initial contact directly with Juan Trippe. After reporting the contact to the U.S. State Department and the Civil Aeronautics Board, Trippe was authorized to negotiate with the Soviets on key issues for an ASA between the two countries. However, given the political climate, it can be reasonably inferred that political considerations also played a role in formulation of the final agreement between the two countries and both Pan American and Aeroflot were instruments of those considerations, and therefore instruments of both countries’ foreign policy, hence,  “Chosen Instruments”.

For Pan American, a private enterprise as opposed to the state-owned Aeroflot, the operation was a money loser and the competition was not on a level playing field. Quite simply, Pan American could not sell tickets in the Soviet Union and was at a tremendous economic disadvantage. Unfortunately, there was no provision for a subsidy to a U.S. flag carrier operating at an economic disadvantage in an international market at the government’s bidding. Pan American eventually suspended the losing operation but did so when U.S.-Soviet relations were souring. It was not until relations began to improve between the two countries in the mid to late 1980s did the service resume, in 1986, later crowned with a non-stop 747 service in 1988.

59-IL-62-cropped

From the late 1960s through the early 1970s, Aeroflot grew rapidly and by 1973, had set a record for route expansion, operating under sixty-five bilateral agreements with other countries. These changes from isolation to a world-wide presence could be considered a reflection of the Soviet Union’s foreign policy at the time, or it could have been viewed as a challenge to the U.S. superiority in air transport. Whatever the case, the Soviet policy of détente was based on political and economic weakness. There were three basic reasons for this: (1) the Sino-Soviet Conflict, in which China had survived the Cultural Revolution and gained strength in the international arena; (2) the avoidance of Western European unity, which could be a strategic threat and a threat in itself to Eastern Europe and the Soviet control of Eastern Europe; and (3) the weakened Soviet economy, which had found the Soviets lagging behind the U.S., especially in consumer goods. The policy was designed to effect technological cooperation with the West, avoid a political struggle on two fronts (China at one end, the West at the other) and increase political influence in Europe. In 1973, Aeroflot concluded a Trans-Siberian route exchange (connecting Europe and Japan through Moscow, thereby saving time and mileage) with Japan Airlines, British Airways, Lufthansa and Air France.

The Trans-Siberian route was considered important because it impacted the bargaining power of both the U.S., where travel between Japan and Europe was through Anchorage, Alaska, and the Middle East, which had bargaining power with Fifth Freedom rights. By IL62 JAP Aeroflot Malcolm Nasongranting this route to Japan Airlines and the European airlines, the Soviet Union effectively diminished the U.S. and Middle East bargaining power in this market. In addition, this Soviet move made possible increased influence in both Japan and Western Europe.

Whether the Soviet activities at the time were a threat to U.S. leadership is questionable. First, the Soviet aircraft were well behind those of the U.S. technologically and were more expensive to operate; secondly, the airline service offered was not consumer-oriented and was reputed to be deplorable; and third, Aeroflot was not a member of IATA at the time. However, the view at the time was that the rapid Soviet growth was a bid to engage in a contest for national prestige and political influence, by using aviation as a means to an end.

One other event during this era, which occurred on board the fishing boat Wild Goose in the Puget Sound, would set in motion a series of events that would rock the very foundation of the industry:

As legend has it, Pan American’s Juan Trippe asked, “Would you build it if I bought it?” to which Bill Allen of Boeing responded, “Would you buy it if I built it?”

What was “it”? The Boeing 747

END OF PART FOUR

The next installment of this story, Part 5, will cover Deregulation and Open Skies.

 

 

Aviation Regulation – History and Practice – Part 3

 Aviation Regulation – History and Practice

Part Three

This part covers the end of World War II and the events leading up to the Chicago Convention of 1944, the Convention itself, the establishment of ICAO, the Freedoms of the Air and bilateral Air Service Agreements, the formation of IATA, the Bermuda Agreement of 1946 and the concept of the “Chosen Instrument”.

WORLD WAR II AND THE ROAD TO CHICAGO 

Like World War I, aviation technology made tremendous gains during World War II and these gains were enjoyed primarily by the United States, particularly in the area of high-capacity and long range air transport. Why this happened was a result of an agreement between U.S. President Franklin D. Roosevelt and British Prime Minister Winston Churchill: the U.S. would focus on the manufacture of high capacity and long range transport aircraft and bombers and the Allies would focus on the manufacture of fighters and light bombers. As the war began to wind down, the potential of United States superiority in the manufacture of transport aircraft became inevitable.

By 1944 defeat of Germany was all but certain. And by then, aviation technology had developed to the point that no city in the world was more than forty hours away from any other city by air. However, the round-the-world routes operated by military air transport would snap apart with the advent of peace and would be closed to commercial planes unless the broadest traffic rights were obtained before the end of the war. Airlines would be limited to flying within their own borders (and to/from colonies) and in the case of the United States, under Pan American’s pre-war trans-oceanic authority unless the U.S. engaged in nation-by-nation politicking as Juan Trippe had done in South America. In addition, U.S. airlines desiring to fly beyond the coasts of Western Europe would require permission from the host governments of the gateway countries. The flag airlines of the Western European countries did not have such a problem. They simply operated routes through their colonies to Asia and Africa. The British carrier, BOAC, was already operating to areas within the commonwealth where war had receded.

Boeing 377 assembly lineFor the United States, a policy needed to be developed as to post-war international aviation and it came in the form of government-to-government negotiations for landing rights. This, in effect, ended Juan Trippe’s term as a “shadow” foreign minister for U.S. aviation. As put forth by President Roosevelt, “Juan Trippe can’t have it all”, and indeed, as a reward for their support during the war effort, domestic airlines such as TWA, American Overseas Airlines (formerly American Export Airlines until American Airlines’ merger with owner American Export Lines) and Northwest were granted authority to operate international routes by the CAB.

However, what was clear as the end of the war approached, was that the United States would have undisputed superiority in air transport to the extent that it was the only country with the capability to operate a worldwide air transportation system. Two other factors contributed: The U.S. had long production lines capable of turning out four engine, long range aircraft and the U.S. was also capable of making immediate commercial business, whereas the Allies, specifically Great Britain, were still geared to military production and unable to make a swift change and, along with France, were technologically injured. In addition, the defeated Axis powers were denied the capability to manufacture and produce aircraft. The result was obvious: The U.S. had a virtual monopoly on the manufacture of transport aircraft.

This virtual monopoly, of course, did not sit well with the major powers, in particular Great Britain, and it becamC-54 assembly line at Douglas factory now ORD 1943e clear that an international conference was necessary to resolve the issues of international aviation and more importantly, the issues between the U.S. and Great Britain.

As it was also clear that both the Paris and Havana Conventions were now obsolete, there emerged a need for an international organization to maintain standards of safety, communications, signals and weather reporting and also prevent destructive competition breaking out of tariffs. As a result, with the urging of Great Britain, the United States took the initiative and sent out invitations to the Allied Nations and the neutral countries of Europe and Asia to meet in Chicago on 1 November 1944. Fifty-four countries accepted and sent delegations to the Conference on International Civil Aviation, to be known as the Chicago Convention of 1944.

CHICAGO AND BEYOND

Chicago 1944

 The Chicago Convention of 1944

 On 1 November 1944, delegates from fifty-four countries met at the Stevens Hotel in Chicago to commence what was to become the most significant conference on aviation regulation in history. The goal was to promote international traffic and develop an entry procedure that would allow healthy growth in the industry. In addition, issues such as routes, frequencies, pricing and fares, aircraft registration, navigational aids and safety standards were to be discussed.

StevensHotelChicago

At a Convention such as this, those with the greatest bargaining power could afford to make broad and sweeping proposals, usually tailored to their interests. The United States had this bargaining power and the feeling was it was going to be used to secure a near monopoly in long-haul air transport. What the U.S. was advocating was access to international routes, minimal control of rates, frequencies and capacity and an international organization with limited political and economic authority. In essence, an “open skies” regime was being promoted.

While freedom of competition is a noble position to take, it seemed absurd that such a position would be espoused by a competitor who has a commanding lead in an industry that was characterized by considerable restriction to entry. The U.S. position was similar to the proverbial elephant who, while dancing through the chicken yard, cried, “Everyone for Himself!”

Other countries advanced proposals calling for more control, while the British were calling for an international air authority that would control frequencies, capacities, rates and routes agreed upon bilaterally or multilaterally between nations. The authority would take action with a view to maintaining a broad equilibrium between the world’s air transport capacity and the traffic offering. It would thus eliminate wasteful practices, unfair competition and control subsidies.

The British, while lacking bargaining power in the air transport aspect, did wield considerable power from the political aspect. Through its vast number of overseas colonies and commonwealth connections, Britain had the capability of denying landing rights to, for instance, U.S. carriers. This was a major weakness for the United States: the need to obtain landing rights in foreign countries to load and unload passengers and cargo.

Delegates from other countries also submitted proposals calling for some sort of control, including the possibility of a single international corporation as a World Airline, with every nation participating. These suggestions were all unacceptable to the United States.chicago-conference-photo4

What was emerging during the convention was that the nations in attendance were there to strengthen their weaknesses. Indeed, the U.S. was present to secure landing rights in foreign countries and that was the goal in calling for the convention in the first place. The U.S. did not bring up issues such as frequencies, traffic or capacity. As the convention progressed, however, it was clear that the U.S. would have to back down from its laissez-faire position. This occurred when the Canadian delegation proposed the “Four Freedoms of the Air” that would be universally acceptable:

First Freedom

The right to fly and carry traffic over the territory of another partner to the agreement without landing.

Second Freedom

The right to land in those countries for technical reasons such as refueling without boarding or deplaning passengers.

Third Freedom

The right of an airline from one country to land in a different country and deplane passengers coming from the airline’s own country.

Fourth Freedom

The right of an airline from one country to land in a different country and board passengers traveling to the airline’s own country.

For the United States, these did not meet its requirements for control on international trunk routes. Accordingly, the U.S. added a “Fifth Freedom” to the Canadian proposal.

Fifth Freedom

The right of an airline from one country to land in a second country, to then pick up passengers and fly on to a third country where the passengers then deplane.

This proposal was not received well by the other major nations as it made quite clear the U.S. objectives: to dominate and monopolize much of the world’s traffic. As a result, because the U.S. was unable to get sufficient support from the delegates for the Fifth Freedom rights, at the close of the convention, the economic issues such as fares, frequencies and capacities were left unresolved.

The failure to resolve the economic issues left the question as to where an airline could fly dependent on bilateral negotiations. And in these negotiations, the parties would summon whatever power they had to secure the greatest contribution to their national well-being. The convention amplified the importance of bilateral negotiations. The reality was that no strength in technical matters, no amount of operating know-how or superiority in quality can overcome the inability to reach a market. The British may not have been technically superior to the United States, but they did have control of one end of a large number of international journeys. This was sufficient to negate much of the U.S. superiority, and the failure of the British to sign-off on the Fifth Freedom addition was considered the major reason for the inability of the U.S. to secure those rights.

One notable absentee at Chicago was the Soviet Union. While invited and actually prepared to attend, a last minute decision was made not to attend. Considerable speculation arose as to why. One reason suggested was a low priority given to international civil aviation. Other reasons, however, were more feasible: First, attendance might have forced the Soviets to grant the right of innocent flyover its territorial air space. This would have been difficult to refuse since the Yalta and Potsdam Conferences lay ahead. Another was that the Soviets might have been forced into a premature disclosure of its plans for Eastern Europe.

The convention ended however, with three important accomplishments:

Established the International Civil Aviation Organization (ICAO)

Produced the Freedoms of the Air.

Produced the criteria for Bilateral Agreements (Air Services Agreements – ASAs)

The Convention on International Civil Aviation was signed at Chicago on 7 December 1944.

photo_21

Chicago_Convention_Titelseite

Chicago_Convention_signator

Key Provisions:

Every state has complete and exclusive sovereignty over airspace above its territory.

The aircraft of states, other than scheduled international air services, have the right to make flights across state’s territories and to make stops without obtaining prior permission. However, the state may require the aircraft to make a landing.

No scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State.

Each state shall keep its own rules of the air as uniform as possible with those established under the convention, the duty to ensure compliance with these rules rests with the contracting state.

Before an international flight, the pilot in command must ensure that the aircraft is airworthy, duly registered and that the relevant certificates are on board the aircraft. The required documents are:

Certificate of Registration

Certificate of Airworthiness

Passenger names, place of boarding and destination

Crew licenses

Journey Logbook

Radio License

Cargo manifest

The aircraft of a state flying in or over the territory of another state shall only carry radios licensed and used in accordance with the regulations of the state in which the aircraft is registered. The radios may only be used by members of the flight crew suitably licensed by the state in which the aircraft is registered.

The pilot and crew of every aircraft engaged in international aviation must have certificates of competency and licenses issued or validated by the state in which the aircraft is registered.

Recognition of Certificates and Licenses. Certificates of Airworthiness, certificates of competency and licenses issued or validated by the state in which the aircraft is registered, shall be recognized as valid by other states. The requirements for issue of those Certificates or Airworthiness, certificates of competency or licenses must be equal to or above the minimum standards established by the Convention.

No aircraft or personnel with endorsed licenses or certificate will engage in international navigation except with the permission of the state or states whose territory is entered. Any license holder who does not satisfy international standard relating to that license or certificate shall have attached to or endorsed on that license information regarding the particulars in which he does not satisfy those standards.

The Convention is now supported by nineteen annexes containing standards and recommended practices (SARPs). The annexes are amended regularly by ICAO and are as follows:

Annex 1 – Personnel Licensing

Annex 2 – Rules of the Air

Annex 3 – Meteorological Service for International Air Navigation

Annex 4 – Aeronautical Charts

Annex 5 – Units of Measurement to be used in Air and Ground Operations

Annex 6 – Operation of Aircraft

Annex 7 – Aircraft Nationality and Registration Marks

Annex 8 – Airworthiness of Aircraft

Annex 9 – Facilitation

Annex 10 – Aeronautical Telecommunications

Annex 11 – Air Traffic Services – Air Traffic Control Service, Flight Information Service and Alerting Service

Annex 12 – Search and Rescue

Annex 13 – Aircraft Accident and Incident Investigation

Annex 14 – Aerodromes

Annex 15 – Aeronautical Information Services

Annex 16 – Environmental Protection

Annex 17 – Security: Safeguarding International Civil Aviation against Acts of Unlawful Interference

Annex 18 – The Safe Transport of Dangerous Goods by Air

Annex 19 – Safety Management (Since 14 November 2013)

Units of Measurement to be used in air and ground operations: feet (for vertical distance/altitude), knots (for speed), and nautical miles (for distance).

The International Civil Aviation Organization (ICAO) was formed to administer the Convention.

icao

ICAO

Key areas of interest:

Establishment of international technical standards and recommended practices in the conduct of international air operations

Standardization of procedures

Air navigation

Communications and air traffic management

Air safety

Development in aircraft design

Growth and development of airways and airports

Cooperation between member nations

Sets industry technical and legal standards for member states’ civil aviation authorities

ICAO_World_Headquarters

Objectives:

Insure the safe and orderly growth of international civil aviation throughout the world

Encourage the arts of aircraft design and operation for peaceful purpose

Encourage the development of airways, airports and air navigation facilities for international civil aviation

Meet the needs of the peoples of the world for safe, regular, efficient and economical air transport

Prevent economic waste caused by unreasonable competition

Insure that the rights of contracting States are fully respected and that every contracting State has a fair opportunity to operate international airlines

Avoid discrimination between contracting States

Promote safety of flight in international air navigation

Promote generally the development of all aspects of international civil aeronautics

IMAGE635054387029267534

Freedoms of the Air

airfreedom3ry

First Freedom

The right to fly and carry traffic over the territory of another partner to the agreement without landing

Second Freedom

The right to land in those countries for technical reasons such as refueling without boarding or deplaning passengers

Third Freedom

The right of an airline from one country to land in a different country and deplane passengers coming from the airline’s own country

Fourth Freedom

The right of an airline from one country to land in a different country and board passengers traveling to the airline’s own country

Fifth Freedom

The right of an airline from one country to land in a second country, to then pick up passengers and fly on to a third country where the passengers then deplane

Sixth Freedom

The right to carry traffic from one country through the home country of the airline to a third country

Seventh Freedom

The right to carry traffic from one country to another country without going through the home country of the airline

Eighth Freedom

The right to carry passengers between two or more points in one foreign country with continuing service to or from one’s own country, known as “True Cabotage”

Ninth Freedom

The ninth freedom is a variation from the Eighth Freedom in that it is the right to carry passengers within a foreign country without continuing service to or from one’s own country, known as “Stand-alone Cabotage” and almost no country permits it

Bilateral Agreements

The criteria produced by the Chicago Convention included the following key provisions:

Exchange of air rights

Equality of treatment with respect to airport charges, customs duties and inspection fees

Mutual recognition of airworthiness certificates and personnel

Compliance with laws pertaining to entry, clearance, immigration, passports, customs, etc

Regulations concerning ownership and control

The designated carrier/s (“Chosen Instrument”?), the routes served and tariffs

The International Air Transport Association

Shortly after the Chicago Convention, a call was made for a meeting among airline operators with a proposal to form a non-governmental organization of airline operators. During this meeting, articles of association were drafted for consideration at a conference to be held in Havana in April 1945. On 19 April, the articles were approved and enacted, forming the International Air Transport Association (IATA).

iata    IATA-2

Focused on economic rather than technical issues, the purpose of IATA initially was to to promote safe, regular and economical air transport for the benefit of the peoples of the world; to foster air commerce and to study the problems connected therewith; to provide the means of collaboration among the air transport enterprises engaged directly or indirectly in international air transport services; and to cooperate with ICAO”. Today these functions largely remain the same:

Sets economic standards for the orderly flow of air transportation throughout the world

Coordinates fares and rates among member airlines

Provides forum for industry agreements between airlines (interline, alliances)

Conducts training for airline personnel

Provides clearing house for collections on interline international tickets

Holds semiannual “Slot Conference”

Assigns airline designators

The Bermuda Agreement of 1946

The Bermuda Conference was held in 1946 and it was essentially a conference between the two airline powers, Britain and the United States. There was a feeling of urgency at the conference. Besides the aviation issues to be resolved, Britain was in a severe crisis over its balance of payments and was concurrently negotiating a $3.75 billion loan on easy terms. At the same time, the U.S. was engaged in conference with Britain and its commonwealth partners over telecommunications rights with the hope that empire preferences disciminatory to the U.S. would be eliminated. It was, however, the principle aim of the conference to reconcile the widely divergent views held by the two nations on the extent to which international air transport should be controlled.

The Bermuda Air Agreement, known as the Bermuda Agreement of 1946, was accepted by both nations. Its provisions included criteria regarding Fifth Freedom Rights, including consideration of the traffic requirements between the country of origin and the country of destination, the requirements of through airline operation and the traffic requirements of the area through which the airline passes after taking account of local and regional services.

The key provisions included:

Provided for Fifth Freedom rights with reciprocity

Provided for extensive routes between the two countries with the requirement for reciprocity

No arbitrary restrictions on capacity or flight frequencies

Procedures for rate-making and traffic rules assigned to IATA subject to government approval

Disputes referred to the ICAO for advisory opinion

Pan American and BOAC were the designated carriers

Became model for future bilateral agreements

This agreement enabled Pan American pick up passengers at London for passage to points east. As the agreement also applied to commonwealth countries, Pan American benefited from Fifth Freedom rights at points in India and later at Hong Kong. This enabled Pan American to launch its round-the-world services in 1947.

Below are pages from a 1948 Pan American time table showing its round-the-world service and the scene in New York at the departure of its first round-the-world flight.The the area through which the airline passes after taking account of local and regional services.n and the traffic requirements.

1948 Jun   1948 RTW straight

First RTW flight leaving LGA 061747 PAHF-1

The “Chosen Instrument”

The concept of the “Chosen Instrument” suggests that the national carriers designated to operate international routes by their owning nations are instruments of those nations’ foreign policy.  Indeed, through the bilateral agreement system promulgated by the Chicago Convention, that could ring true. However, the term preceded Chicago.

During the early years of Pan American’s growth, the U.S. government looked very favorably at the carrier, and viewed it as an “instrument” of foreign policy by using the airline to facilitate economic expansion to Latin America and the Caribbean. The U.S. government, in fact, awarded Pan American every foreign airmail route for which bids were invited. This was helped by provisions of the Foreign Air Mail Act that provided that only airlines capable of operating on a scale and manner that would project the dignity of the United States in Latin America would be granted the right to carry international mail. Secondly, contracts would only be given to companies that had been invited for operations by the host countries. In both cases, Juan Trippe made sure that Pan American had no competition. He aggressively pursued friendly relations with most countries in Latin America and the Caribbean and often personally met with foreign leaders. Trippe was also the kind of entrepreneur who emphasized elegance and grandeur in operating his airline. To enhance the stature of Pan American, Trippe also invited the famous aviator Charles Lindbergh to serve as a technical adviser.

In addition, there was concern over the German presence in South America in the 1930s. The German airline Lufthansa had established subsidiaries in various countries and Sociedad Colombo-Alemana de Transportes Aéreos (SCADTA) was formed by a group of Colombian and German businessmen, posing a threat to the Panama Canal. This meant the presence of German propaganda and espionage. Pan American proceeded to acquire SCADTA and other German subsidiaries to remove the German presence and expand its Latin American route network. In essence, this was carrying out U.S. foreign policy to rid the continent of the German presence.

Up to World War II, because of its leadership and role in international commercial aviation, Pan American was considered the “Chosen Instrument” for the United States.

However, while Trippe was largely successful negotiating on behalf of his airline and his government, his stature as the “ad hoc” transport minister would soon come to an end following his efforts to secure transatlantic authority from the British and the U.S. government’s eventual policy of government-to-government negotiations for foreign landing rights. However, although Pan American no longer had a monopoly on international routes, the airline was still considered the principle international carrier, and indeed, the “Chosen Instrument”.

The “Chosen Instrument” survived up through the Cold War largely because of the restrictive nature of the regulated airline industry and the resultant barriers to entry. With the advent of “Open Skies” and general liberalization of the industry, this concept has faded away. Under the current regime, there is virtually no airline that can really claim to be an instrument of its country’s foreign policy.

END OF PART THREE

The next installment of this story, Part 4, will cover the post-War regulated and protectionist era of the airline industry including the government role in international commercial aviation during the Cold War.

Aviation Regulation – History and Practice – Part 2

Aviation Regulation – History and Practice

Part Two

FOREIGN AIR MAIL CONTRACTS

The airmail legislation described in Part One did not apply to air transportation of foreign mail. Eventually, with the U.S. government strongly supporting mail service between North and South America, the U.S. Congress passed the Foreign Air Mail Act of 1928 to regulate such international service. This, however, was preceded by the formation of Pan American Airways and its inauguration of international airline services between the U.S. and Cuba.

Pan American Airways, Inc. (PAA) was founded on 14 March 1927 by Air Force Majors “Hap” Arnold, Carl Spaatz and John H. Jouett, later joined by John K. Montgomery and Richard B. Bevier, as a counterbalance to German-owned carrier “SCADTA” (Colombo-German Aerial Transport Co) that had been operating in Colombia since 1920. SCADTA was viewed as a possible German aerial threat to the Panama Canal.  Eventually Montgomery petitioned the US government to call for bids on an U.S. airmail contract between Key West and Havana (FAM 4) and won the contract.  However, PAA lacked any aircraft to perform the job and did not have landing rights in Cuba.  Under the terms of the contract, PAA had to be flying by 19 October 1927.

juan-t-trippeOn 2 June 1927, Juan Trippe formed the Aviation Corporation of America (ACA) with financially powerful and politically well-connected backing, and raised $300,000.  On 1 July Reed Chambers and financier Richard Hoyt formed Southeastern Airlines.   On 8 July Trippe formed Southern Airlines and on 11 October Southeastern was reincorporated as Atlantic, Gulf and Caribbean Airways.  Trippe then proposed a merger between these three groups and in doing so played a trump card:  He and John A. Hambleton, one of his backers, traveled to Cuba and persuaded the Cuban president to grant landing rights to the Aviation Corporation, making Montgomery’s mail contract useless as a bargaining chip.  After much wrangling between the groups, including a meeting on Hoyt’s yacht during which Assistant Postmaster General Irving Grover threatened that if there was no deal he would not be awarding any contract to anyone, the Aviation Corporation of the Americas was formed, operating as Pan American Airways, headed by Juan Trippe.  Later the corporation’s name was changed to Pan American Airways.

The deadline of 19 October still loomed, however. A Fokker F-VII aircraft was selected for the operation, but could not be used becaFairchildFC-2 La Ninause Meacham’s Field in Key West was not completed and could not accommodate the aircraft. What transpired was an eleventh hour miracle. Pan American’s representative in Miami learned that a Fairchild FC-2 monoplane was in Key West, sitting out a hurricane threat.  The aircraft was owned by West Indian Aerial Express (the Fairchild Group) and a deal was made to charter the aircraft.  The pilot was offered $145.50 to carry mail to Havana that had just arrived on the Florida East Coast and Atlantic Coast Line railroads.  The hurricane threat disappeared and the trip was made.  The rest is history.

On 28 October 1927, the Fokker finally left Key West on Pan American’s inaugural international flight, carrying 772 lb. of mail.

FOKKER F7-staff

Under the Act, Foreign Airmail contracts (FAMs) were put up for bidding and Pan American was able to win them, making it the only US-flagged carrier with authority from the U.S. government to carry mail to foreign countries on international routes.  Operating authority to these countries, however, needed to be secured and at the time there was no framework within the US government to accomplish that. Pan American’s Juan Trippe was able to do it. He carried out then what the U.S. Departments of State and Transportation do today with respect to foreign routes.

Pan American established services first in the Caribbean, the whole of Latin America and eventually across the 1930s colorfulPacific Ocean. Authority across the Pacific, however, was not Trippe’s original transoceanic ambition. It was the Atlantic. However the geopolitical situation coupled with technological limitations made that option impossible. The path to Europe was through Newfoundland. Unfortunately, negotiations between Trippe, Britain, Canada and Newfoundland in 1932 did not provide the access desired, although some understanding was achieved between Pan American and Britain’s Imperial Airways with regard to traffic rights. Because Newfoundland appeared to be in doubt, Trippe looked south. Unfortunately, the political situation in Portugal made it difficult for Pan American to negotiate for traffic rights there as well.

What is interesting here, with respect to the negotiations over Newfoundland, is that it was not the American government doing Pan American’s bidding. It was Juan Trippe. And it was Trippe who personally dealt with the governments of Britain, Canada and Newfoundland, following a pattern used when he negotiated traffic rights to countries in Latin America.

Any hope for trans-Atlantic operations, however, was dashed when, in April 1934, the British government demanded reciprocity with the United States over traffic rights.  The British government spoke for Imperial and questioned why the U.S. government did not speak for Pan American, as both entities were instruments of national policy. Trippe had overestimated his diplomatic skills and his “go-it-alone diplomacy” was not working. He admitted that he did not see much future for Pan American in the North Atlantic. In addition the British, in 1934, had nothing like Pan American’s S-42, then the most advanced aircraft in the world. Until Imperial Airways had a similar aircraft that could cross the Atlantic to the United States, Pan American would find itself blocked from operating to Britain.

S-42The focus thus switched to the Pacific. After a “great circle” trans-Pacific route through the north was ruled out due to issues between the United States and the Soviet Union, it was decided to take the route that represented the longest distance between the United States and the Orient: the mid-Pacific.

Here, the issue of traffic rights was not a problem for Pan American. The route involved stops at Honolulu, Midway, Wake and Guam, terminating in Manila, all of which were under U.S. jurisdiction. At Guam and the Philippines, the U.S. Navy had established bases on the pretext of potential confrontation with Japan. Midway was being used by the Navy for war games staged in the area. Wake, a tiny island, discovered by Trippe in the New York Public Library, was an uninhabited coral atoll, and a minor trophy of the Spanish-American War. It was a critical point for the trans-Pacific flight. Trippe eventually got permission to use the island as a base.

On 24 October 1935 the U.S. Post Office awarded Trippe the trans-Pacific FAM and on 22 November, the China Clipper inaugurated service from the mainland United States across the Pacific.

China Clipper

 

U.S. REGULATION OF AIR TRANSPORTATION

The first instance of United States regulation of aircraft and airmen was in the Air Commerce Act of 1926. It defined “Air Commerce” as carriage by aircraft of persons or property for hire, and the navigation of aircraft in the furtherance of or for the benefit of a business. It established federal regulations regarding aircraft, airmen, navigational facilities and air traffic, including the development and maintenance of airways and aircraft altitude separation. The Act required that aircraft were to be inspected for airworthiness and were required to have markings on the outside for identification. It also provided the requirement that airmen be tested for aeronautical knowledge and have a physical examination completed to insure their physical fitness.

The Act also promoted civil aviation to attract capital and provide a legal basis necessary for its development. The Aeronautics Branch of the Department of Commerce was established by an amendment to the Act in 1929 and was responsible for overseeing and implementing the Act. The regulations promulgated would be known as Civil Air Regulations (CARs).

caa1938In 1935, the Federal Aviation Commission (FAC), a board created by Congress in 1934 to study airline regulation and recommend policy called for creation of a centralized and independent authority to regulate the airline industry. As a result Congress passed the Civil Aeronautics Act of 1938 that was signed into law by President Roosevelt. The Act established the Civil Aeronautics Authority (CAA) and transferred federal responsibilities for non-military aviation to that new independent agency. The Act also gave the CAA quasi-judicial and legislative functions related to economic and safety regulation. This included regulation of fares and routes the air carriers would serve. The CAA was also responsible for aviation regulations, airways, navigational facilities and air traffic control.

The Act created a three-member Air Safety Board that investigated accidents and made recommendations to eliminate the causes of accidents and also provided for an Administrator, who performed executive functions related to the development, operation and administration of air navigations, as well as the promotion of aviation. Airmail contracts were replaced by “Certificates of Public Convenience and Necessity”.

CAAwing

In 1940, President Roosevelt split the CAA into two agencies, the Civil Aeronautics Administration, which went back to the Department of Commerce, and the Civil Aeronautics Board (CAB). The offshoot of the original CAA retained responsibility for ATC, airmen and aircraft certification, safety enforcement, and airway development. CAB Welch Pogue NASM Archivesresponsibilities included safety rulemaking, accident investigation and economic regulation of the airlines. The latter included passenger fares, air mail rates, route entry and exit, mergers and acquisitions and inter-carrier agreements. The routes of the then existing airlines were “grandfathered” and these airlines became later known as “trunks”, a term borrowed from the trunk railroads of the day. These trunk airlines were certified to operate on medium and long-haul interstate routes under Section 401 of the enabling legislation and were sometimes referred to as “401 carriers”.  In 1942, L. Welch Pogue, Esq., was appointed Chairman of the CAB and served until 1946.

UAL_Route_Map_1940

1941-april-27-american-airlines-timetables-route-maps-and-history_4712

TWA 1935

American_DC-3     Boeing 247-1

 

EARLY EUROPEAN AVIATION

Initial Operations

In the United Kingdom, Aircraft Transport and Travel, a fixed-wing airline, operated the first international route in the world between Hounslow Heath outside London and Le Bourget near Paris. The airline also won the first British DH16-AT&Tcivil airmail contract between Hawkinge and Cologne. Handley Page, another airline, operated a London-Paris passenger service.

In France, Société Générale des Transports Aériens operated flights between Toussus, le Noble and Kenley (near Croydon, outside London), and Compagnie des Messageries Aériennes operated airmail and freight service between Le Bourget and Lille.

In Germany, Deutsche Luft Hansa was created in 1926 and became a major investor in airlines outside Europe, particularly in South America. The German manufactured Junkers, Dornier and Fokker aircraft were at the time the most advanced in the world.

In the Netherlands, KLM, the oldest continuously operating airline in the world made its first flight in 1920 between Croydon Airport, London and Amsterdam.KLM-poster-1919

In Finland, Aero O/Y (now Finnair) started operations in 1924 between Helsinki and Tallinn, Estonia.

And in the Soviet Union, the Chief Administration of Civil Air Fleet was established in 1921. Later, a German-Russian joint venture was established to provide flights to the west from Russia. Domestic operations were begun in 1923 by Dobrolyot and from 1932, all operations were carried under the name “Aeroflot”.

Farman-goliath France

European Airlines Recognized as Airmail Carriers

The period of 1920-1927 was a period of significant development for air transportation but the postalHandley_Page_0_100_aircraft administrations and airlines were in the dark as to future possibilities for international airmail. By 1924, the idea of using aircraft for the transportation of mail began to gain momentum, and in September, 1927, at a conference called at the suggestion of the Air Transport Committee of the International Chamber of Commerce held at The Hague, an agreement was reached that established airlines as officially recognized carriers of the mail. The Conference also initiated rules and regulations concerning the acceptance and rapid delivery of airmail, a rate-making structure, the expeditious handling of airmail by countries without air services, and the basis of accounting procedures for international airmail. Another provision agreed was that the PAR AVION labels should have a blue color and, when the mail did not actually travel by air, such labels or annotations should be crossed out.

EUROPEAN CONSOLIDATION AND EXPANSION

Consolidation 

In the United Kingdom, there was a movement toward consolidation to compete with the subsidized French and German airlines. In 1924, Imperial Airlines was formed through a merger of four airlines, and was able to compete with these French and German carriers. In addition the airline began survey flights to far-flung parts of the British Empire. The airline also ordered the Handley Page W8f City of Washington.

Tanken van een vliegtuig met twee propellers. Schiphol, Nederland, 1927.

In France, Air Union was formed in January 1923 and later merged with four other airlines to become Air France in 1933.

Expansion

After consolidation survey flights, Imperial Airlines extended its operations during the late 1920s and 1930s to the furthest reaches of the British Empire. Destinations included South Africa, Australia, British India, Rangoon, Singapore, Basra, Karachi, Hong Kong, etc. The aircraft, however, were small, with a capacity of fewer than 20 passengers, and the passengers consisted of the wealthy or British men doing colonial administration, business or research.

Air France’s operations depended on links to points in North Africa and Indochina.

KLM in the Netherlands also depended on links to its far flung colonies, including the East Indies.

Hindenburg_at_lakehurstGermany, however, lacked colonies but began expanding services with the airship Graf Zeppelin in regular scheduled passenger service between Germany and North and South America. Airship Hindenburg entered passenger service and successfully crossed the Atlantic 36 times before crashing at Lake Hurst, New Jersey, in May 1937.

One point of interest here is that during this time the state-owned flag carriers of several European nations were establishing “foreign routes” to their own colonies in Asia, Africa and the Indian Sub-Continent, all without the need to obtain traffic rights. Privately owned Pan American did not have this luxury and was required to obtain traffic rights to operate not only to the European countries, but to their colonies as well.

The maps below illustrate the typical route systems of two key international airlines prior to and during World War II. The U.S. carrier, Pan American, obtained its authority through negotiating for landing rights at overseas destinations. The foreign carrier, Imperial of Great Britain offered overseas destinations through its colonies. As previously noted, Pan American’s initial transpacific authority came about by virtue of U.S. control of waypoints between San Francisco and Manila. The authority to Hong Kong came about after Pan American’s Juan Trippe used his previously obtained landing rights in Portuguese Macao to pressure the British to grant him landing rights in Hong Kong. At the time, the China National Aviation Corporation (C.N.A.C.) was yet another subsidiary of Pan American. Note the extent of operations in Latin America. 

PAA Map 1940    PAA South America

Imperial_routes_April_1935

SITUATION AT THE EVE OF WORLD WAR II

 Late 1930s

By the late 1930s, Pan American had launched trans-Atlantic flights with the Boeing 314 flying boat. The British and French were operating trans-Atlantic flights as well, but only under mail contracts. Pan American was the only airline with the capacity to accommodate passenger traffic.

314a-oct 13

Imperial flying boat-cropped

 

 

 

 

 

At the same time, U.S. domestic airlines (and Pan American) were looking at high-capacity-long range landplanes (DC-4 and Lockheed Constellation).

War Looms

War was looming in Europe and at the same time, Pan American began experiencing problems with its Boeing 314 operation due to bad weather in the winter months. Both these factors prompted a shift to a southern route that nearly doubled the flight time between the European continent and New York. The route departed Lisbon and stopped in Bolama (West Africa), Port of Spain and Bermuda before arriving in New York.

On the eve of World War II, Juan Trippe recognized that a shift from flying boats to landplanes on trans-Atlantic routes was inevitable. He was initially interested in acquiring the pressurized Lockheed Constellation and was “given permission” by Howard Hughes to acquire it. However, the war started and both DC-4 and Constellation production was shifted to the war effort.

C-69Navy-C54

For all intents and purposes, the world’s airlines shifted their operations to wartime, including Pan American and the U.S. domestic airlines. Other than the U.S. regulations that governed the U.S. carriers, international commercial aviation was governed by the provisions of the Paris Convention of 1919 and the Havana Convention of 1928. It would soon become obvious that both were obsolete.

END OF PART TWO

The next installment of this story, Part 3, will cover World War II, the Chicago Convention of 1944, ICAO, Air Services Agreements, the Freedoms of the Air, the concept of the “Chosen Instrument”, IATA and the Bermuda Agreement of 1946.

Aviation Regulation – History and Practice – Part 1

Aviation Regulation – History and Practice

Part One

INTRODUCTION

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.

Wright Brothers-2

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.

800px-Royal_Aircraft_Factory_SE5a   Curtiss JN-4 Jenny Brian Karli

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).

Paris Convention-1 ICAOThe 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

1024px-Airmail_1930s_Detroit_Smykowski

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 Airmail stamp 1925-1 Airmail stamp 1925-2contracts 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 Model Boeing 40competitive 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.

SwallowThe 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 1280px-EarlyDH4and 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.

 

Ford 5-AT-B

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.

1d_1934-3

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.

Keystone_B-6_twin-engine_airmail_plane_in_snow_storm,_1920

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.

Aviation Law Conference – 29 September 2015 – Washington, DC

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Aviation Law Conference

September 29, 2015

On Tuesday, September 29, 2015, an important and timely conference will be held at the American University Washington College of Law covering the most recent developments in Aviation Law.

Topics to be included are FAA enforcement issues, aircraft safety and accident investigation, the evolving regulatory framework and privacy issues related to unmanned aircraft systems, developments in sanctions in the airline industry and a two-hour panel covering some of the “hot” topics of the day, including the Gulf Carrier Dispute, subsidies, labor issues and “flags of convenience”.

The conference will be divided into panels and debate is encouraged. Leading aviation attorneys have committed to participating in this conference, including Mark Atwood, Esq., of Cozen O’Connor, Russell Bailey, Esq., of the Airline Pilots Association (ALPA), Steve Dedmon, Esq., of Embry-Riddle Aeronautical University (ERAU), Cynthia Dominik, Esq., of the Federal Aviation Administration (FAA), Mike Dworkin, Esq., of Michael Dworkin & Associates, Daniel Friedenzohn, Esq., of ERAU, Deanm Griffith, Esq., of the FAA, David Heffernan, Esq., of Cozen O’Connor, Darryl Jenkins, Aviation Consultant, Jim Johnson, Esq., of ALPA, Allan Mendelsohn, Esq., of the Law Offices of Allan Mendelsohn, Charles Raley, Esq., of the FAA, Sandy Sinick, Esq., of Cozen O’Connor, David Tochen, Esq., of the National Transportation Safety Board, Mark Tomicich, Esq., of the FAA and Thomas Whalen, Esq., of Schott Johnson LLP.

This conference is intended for airline and aviation professionals and management, attorneys, airline and aviation consultants, law students and students of the airline and aviation industry. The topics are timely and receiving much attention in the industry.

This conference is accredited for CLE credits by the State of Pennsylvania.

For an agenda and to register, Click Here.

Photos from previous Aviation Law Conference at American University Washington College of Law

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Group-1 small   Whalen-3 small   Group-3 small

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Aviation Law Conference: Legal Aspects of Aircraft Mishaps and Disasters

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AVIATION LAW CONFERENCE

Legal Aspects of Aircraft Mishaps and Disasters

asiana 214-1     af447-flight-recorder

November 10, 2014

9:00 am – 6:00 pm

American University Washington College of Law, Room 603

4801 Massachusetts Avenue, NW, Washington, DC 20016

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Purpose:  This conference will address the legal and organizational aspects of dealing with aircraft mishaps and disasters–not only finding causation, but how organizations should prepare for and respond to them.

 Who Should Attend:  Air carriers; air agencies; manufacturers; aircraft owners and operators; airport proprietors; aircraft and airline liability insurers; aircraft insurers; attorneys representing aviation concerns; plaintiffs’ attorneys.

 AGENDA

0830-0900      Registration/Coffee and Pastries

0900-0920      Welcome and Introductions

                          Professor Andrew F. Popper, Washington College of Law

                          Jamie Baldwin, WCL ‘81

0920-1015      Aviation Regulations and Federal Aircraft Accident Investigations: History and Practice

                         Jamie Baldwin, WCL ‘81

1015-1115        Nuts and Bolts of Aircraft Accident Investigation

                        Matt Robinson, Robson Forensics

1115-1130        Morning Networking Coffee Break

1130-1230       NTSB Responsibilities and Recent Proposed Rulemaking  Re: Accident Investigation

                        David Tochen,  Esq., General Counsel, National Transportation Safety Board

1300-1400      Luncheon

                         Keynote Speaker: John Marshall, former Captain, Boeing 747, Pan American World Airways

1400-1500      Family Assistance Legislation and its Role in the Swissair/Halifax Accident and

                        Lessons Learned from the TWA 800 and Korean Airlines/Guam Accidents

                        Tom Whalen,  Esq., Schott Johnson, LLP

1500-1600      Providing Legal Representation to the Operator after an Aircraft Mishap

                        Michael Dworkin, Esq., Michael L. Dworkin and Associates

1600-1630      Afternoon Networking Tea

1630-1730      Nuts and Bolts of Preparing Emergency Response Plan

                        John T. Van Geffen, Esq., Michael L. Dworkin and Associates

1730-1800      Wrap-Up and Questions and Answers

1800                End of Conference

 

There are no fees for this event.*

To Register for this Event Click Here.

For further information, please contact:  Office of Special Events & Continuing Legal Education,

American University Washington College of Law
Phone: 202.274.4075; Fax: 202.274.4079; or
secle@wcl.american.edu

CLE Accreditation will be applied for – 5 credits.  CLE registration – $275