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dc.contributor.authorThomson, George Roberten
dc.date.accessioned2019-02-15T14:24:45Z
dc.date.available2019-02-15T14:24:45Z
dc.date.issued1935en
dc.identifier.urihttp://hdl.handle.net/1842/34224
dc.description.abstracten
dc.description.abstractI have now completed that which I set out to do, namely, to show how the law in relation to aircraft has developed from the time of its inception to the present day. The period covered has been short, less than fifty years, and, since the law is of such a modern nature, I have found difficulty in presenting anything in the way of historical research. I have been compelled to discuss a law as it now exists with the result that I have tended to consider the future rather than to reveal the past. Another factor which has contributed to the difficulty of research is the multiplicity and diversity of the problems which arise in connection with what I have termed "the law in relation to aircraft." That law is not confined to one particular branch. On the contrary, it is difficult to find a branch of the law which is not affected by the origin and development of aviation. This has rendered continuity of treatment almost impossible. It has had a further effect, for, to prevent this thesis being of inordinate length, I have been unable to make more than a cursory examination of topics which are worthy of more exhaustive study - topics, which would in themselves constitute fit subjects for a legal thesis. Nevertheless, while the material available for research in Great Britain is limited and I have been thrown back for my information on Continental and American publications, access to which is difficult, I hope I have succeeded in showing the various stages in what I consider a remarkable and rapid development in a sphere of law about which little is generally known and which has many peculiar features of absorbing interest.en
dc.description.abstractI do not intend to recapitulate and I shall reiterate but one thing. The barest glance is sufficient to show that the outstanding characteristic of aviation law is the rapidity with which it has progressed to a very high degree of development. For instance, whereas in 1910 the term "aircraft" was defined in the Paris Convention as comprising "free balloons, airships, and flying machines ", in 1935 it comprises "all machines which can derive support in the atmosphere from the reactions of the air ", and the word aeroplane which it was not thought necessary to define in 1910, is now defined asen
dc.description.abstract"a mechanically-driven aerodyne supported in flight by aerodynamic reactions on surfaces remaining fixed under the same conditions of flight"en
dc.description.abstracta definition of which the layman is blissfully ignorant. We have not yet reached the stage in the development of aviation in which Tennysonen
dc.description.abstract"Saw the heavens fill with commerce, argosies of magic sails, Pilots of the purple twilight, dropping down with costly bales; Heard the heavens fill with shouting, and there rained a ghastly dew From the nations' airy navies grappling in the central blue;"en
dc.description.abstractbut the present generation has witnessed extraordinary progress in that direction. The generations of the future may see even greater progress. They will certainly see it in the law.en
dc.description.abstractThe law has advanced far but I am of opinion that, remarkable as the development has been, it is more apparent than real. When one regards the mass of Statutes, Rules and Regulations which are now in force one is tempted to think that considerable progress has been made. Actually they are only the bare foundations of the law on Which future generations will require to erect and carve the edifice. They are merely the objects on which the experiments are about to be made.en
dc.description.abstractI would not even say that those foundations which have been laid are themselves secure and it may well be that they will require to be pulled down and reconstructed before the walls can be erected. For example there are the organisations at work on the development of the law. I have shewn that they are numerous. They are also working at cross purposes for they represent conflicting interests. Among industrial concerns, it has been found advisable, within recent years, to undertake the process of what is known', as rationalisation - the elimination of those concerns working at a loss and the combining of the profit - making fragments into one successful profit -making whole. I consider that among the organisations existing to further the development of aviation law some such process of rationalisation might be profit: :ably undertaken. The I.C.A.N. is one which could not be dispensed with but there are others whose functions could be incorporated in one of its Sub-Commissions.en
dc.description.abstractThen there is the law itself. I have shewn that the tendency is towards complete uniformity', but, while it sounds well to say that the laws must be uniform, it is no simple matter to put the proposition into practice. There is always a danger of pressing the principle of uniformity too far. The danger arises from confusing the idea of uniformity to legal principles with uniformity of detail. It is one thing to get the principles of the law the same in various countries, it is another to make the details the same. The one is possible but the other is not. It was for this reason that the Havana Convention was completed without Annexes such as are appended to the Paris Convention. It was felt that it would be better to agree on the principles to be observed and leave the details to the various States. I do not for one moment advocate that the Annexes to the Paris Convention should be discarded for I cannot conceive that this would be either practicable or desirable, but when one considers the Carious projected Conventions prepared and submitted by the C.I.T.E.J.A. one can appreciate better the attitude of the States parties to the Havana Convention. Not only are they a mass of detail. They are complicated in yet another respect - that of language.en
dc.description.abstractThe Paris Convention has three "official" texts, French, English, and Italian. The other proposed Conventions are usually in French. This makes interpretation difficult, and, as in matters of detail they tend to introduce notions which are entirely foreign to some national legal systems, it will readily be recognised that, far from creating uniformity, they will have the very opposite result.en
dc.description.abstractIn the Protocol of Amendments to the Paris Convention which came into force on 17th May, 1933, it is provided that, as far as concerns interpretation, "in case of divergencies the French text shall prevail; but this is not sufficient. Presumably, in any question concerning the interpretation of a Convention, say the Warsaw Convention, the text in which it is signed., the French text, would prevail, but I cannot conceive the position which would exist in Scotland if the Court of Session was called upon to interpret the French text of a Convention, particularly when it was introducing a principle which was Continental and entirely contrary to the established principles of the Scottish Law. It would inevitably interpret it, so far as possible, according to the Law of Scotland. A French Court might give it an entirely different meaning. The result is confusion.en
dc.description.abstractI must confess that I cannot see how any change can be made in the manner in which such International Conventions are concluded. I am also unable to see how the Courts can interpret them in the light of a law other than their own national law. The remedy must lie in another direction, and that direction I think is obvious - the Internation: :al Court first mooted by the Fifth International Congress on Aviation Law. I can conceive no better remedy, and, for law so essentially international as aviation law, there can be nothing so absolutely essential as the formation of an International Court available to private individuals to settle the differences of interpretation which must inevitably arise.en
dc.description.abstractIf further support of this contention is required it is to be found in the matter of juris: :diction to which I have referred elsewhere. The specialities of aviation and the rapidity with which aircraft can proceed from one country to another make it difficult, although not impossible, to apply the existing rules of Private International Law. The various proposed Conventions make special provisions as to jurisdiction to suit the peculiar circumstances of the matters to which they relate, but in doing so they create complications, and diversity rather than uniform: :ity of the rules by which jurisdiction is to be determined. The position would be entirely changed and greatly simplified if all such matters could be dealt with by an International Court, the judgments of which could be enforced against the defender in his own national State.en
dc.description.abstractIt must not be assumed that the topics which I have considered exhaust all the matters which are likely to arise in aviation law. I have covered the ground as it is today, but, with the further progress in aviation, new problems will be added to the many which still await a solution. I cannot prophesy what those may be, but I would end this treatise by mentioning one which is already visible on the horizon'and which is of great importance in the realm: of Internat: :ional Law. I refer to the "seadrome ", the French equivalent of which, "L'île flottante ", has even greater significance. It is the floating structure, the aerodrome of the sea, on which aircraft engaged in transoceanic flights can land for refuelling or repair.en
dc.description.abstractThe creation of the seadrome is indispensable in the interests of aviation, but, as its utility only arises when it is moored on the High Seas, the very mention of it has started the pens of jurists in much the same way as did the first appearance of aircraft. The crux of the whole matter is that the construction by one nation of a seadrome on the High Seas is a violation of the recognised principle of International Law that no nation can claim jurisdiction over the High Seas which will exclude an equal jurisdiction by every other nation. It may be that its construction is not legitimate but the interests of aviation must, in this case, prevail. The basis of discussion, therefore, must be that a seadrome can be constructed, but if that is so what is its legal position? Is it under the sovereignty of the State which constructed it? Is it to be regarded as the exclusive territory of that State: Can the aircraft of other nations be precluded from using it? Those are but a few of the questions to which its construction gives rise.en
dc.description.abstractThe seadrome has to be regarded as sui generis. It is not an "island" in the true sense of the word for, at the First Conference for the Codification of International Law, an island was thus defined:- "Une ile est une étendue de terre, entourée d'eau, qui strouve dune maniére permanente au-dessus de la marée haute."en
dc.description.abstractFloating structures of the nature of the seadrome were expressly referred to as falling outwith the scope of that definition. So also, from its very nature, the seadrome cannot fall within the definitions of a "ship ". It has characteristics of both the island and the ship but it is neither one nor the other.en
dc.description.abstractIt is not my intention to examine in detail the views which have been expressed as to the legal posit: :ion of "L'île flottante ". They are many and one can hardly find agreement on any point. Dr Sandiford supports the theories of the Comité Juridique International de l'Aviation in giving the entire ownership and control to the state which constructed it. M. Giannini and M. de Fonsega Hermes go to the opposite extreme by denying ownership and control to any one country and putting the control under the League of Nations. One thing is certain. The seadrome must be free to all nations and its ownership and control must be regulated by international agreement. More justice will be done by denying the right of States to create additional national territorz by way of erecting seadromes than by permitting them to do so, and I consider that the seadrome should be under the control of an International Commission. Thim would be in the best interest of all concerned. In any event, in time of war, the seadrome must be neutral territory, for it is unthinkable that it could ever be regarded as belligerent territory.en
dc.description.abstractThe seadrome presents many interesting internat: :ional legal problems and one could enlarge upon the points which I have Ilust raised. That is not my intention. .I have mentioned them only to show that, great as has been the development of the law in relation to aircraft in the past, it is not Complete. It will be for future generations to add to the foundation which i have endeavoured to lay by writing a thesis on the subject at this time.en
dc.publisherThe University of Edinburghen
dc.relation.ispartofAnnexe Thesis Digitisation Project 2019 Block 22en
dc.relation.isreferencedbyen
dc.titleThe development of the law in relation to aircraften
dc.typeThesis or Dissertationen
dc.type.qualificationlevelDoctoralen
dc.type.qualificationnamePhD Doctor of Philosophyen


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