Yearbook of Air and Space Law - 1967 - Annuaire de droit aerien et spatial 9780773594609

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I ns t i t ut eo fAi ra ndS pa c eLa w Mc GI LLUNI VERS I TY

Ye a r b o o ko f Ai ra ndS pa c eLa w 1 9 6 7

Annua i r ede dr o i ta é r i e ne ts pa t i a l Re néH. Ma nk i e wi c z

EDI TORI NCHI EF/ RÉDACTEURENCHEF

Institute of Air and Space Law McGILL UNIVERSITY

Yearbook of Air and Space Law Annuaire de droit aerien et spatial Rene H. Mankiewicz EDITOR-IN-CHIEOREDACTEUR-EN-CHEF

McGill-Queen's University Press MONTREAL AND LONDON

Copyright 1970 by Institute of Air and Space Law, McGill University, Montreal Printed in Canada

LIBRARY OF CONGRESS CATALOG CARD NUMBER INTERNATIONAL STANDARD BOOK NUMBER

67-18169

0 7735 0064

Acknowledgements

The Editor records, with deep appreciation, the valuable assistance he has received from colleagues and students of the Institute of Air and Space Law in the preparation of the present issue of the Yearbook. He wants to thank in particular Miss Sushma Malik, LL.M., who acted as part-time Assistant Editor. The following graduate students of the Institute of Air and Space Law helped in collecting and preparing materials: M. A. Khan (Pakistan), H. J. Martin, Gerichtsreferendar (Federal Republic of Germany), V. More, Legal Department, Reserve Bank of India, and R. V. Ranadive, Legal Department, Air India. My colleague, Professor M. Bradley, LL.M., assisted by Mr. G. S. Robinson, LL.M., kindly undertook to supervise the production of the Yearbook at the printing stage. To all these collaborators, the Editor expresses his deep appreciation and thanks. Since the present Editor is withdrawing after the completion of the manuscript of this issue, he would like to take this opportunity to express his most sincere thanks to the many contributors and national and international correspondents of the Yearbook whose kind assistance and constant readiness to provide relevant information, international and legisIative texts, and other materials have made the various issues of the Yearbook a useful instrument of documentation on air and space law matters. Rene H. Mankiewicz

v

Contributors

BINAGHI, WALTER

BOUREY, M. G.

President of the Council of the International Civil Aviation Organization Conseiller Juridique,

ELDO,

Paris

couRTEIx, s. Attachee de Recherches, Centre National de la Recherche Scientifique, Paris DEMBLING, PAUL

FEDERYK, W.

o. Canadian National Transport Commission

GILLILLAND, WHITNEY

HEWITSON, J. R. KALTENECKER, H. LØDRUP, P.

MENON,

Judge and Member of the United States Civil Aeronautics Board Assistant to the Legal Counsel of General

ELDO,

Paris

Counsel, ESRO

Associate Professor of Law, University of Oslo, Oslo, Norway

P. x. Barrister and Solicitor, Bombay, India

MILDE, MICHAEL

Du

General Counsel, National Aeronautics and Space Agency, Washington

PONTAVICE. E.

Legal Officer, International Civil Aviation Organization Professeur, Faculte de Droit et de Sciences Economiques, Nantes, France

REINTANT_, G. Professor of Law, Halle, German Democratic

Republic DE SOUZA, A. A.

Department of Civil Aviation, Brazil

vil

Abbreviations

A.C. All E.R. Am.I.Int.L. A.S.D.A. Ast.&Sp.Eng. Avi. Bull. Cour de Cass. Bull. Transp.

Appeal Cases All England Reports American Journal of International Law Association Suisse de Droit A6rien et Spatial Astronautics and Space Engineering C.C.H. — Aviation Cases Bulletin des Arretes de la Cour de Cassation Bulletin du Transport

C.L.R.

Commonwealth Law Reports

C.A.B.

Civil Aeronautics Board

D. Dick.L.Rev. Dir.aer. D.L.R. Ex.C.R. F.2d Fed.Supp. Gaz.Pal. Georgetown Li. 1.C.I.Rep. I.C.L.Q.

Recueil Dalloz Sirey Dickinson Law Review II diritto aereo Dominion Law Reports Exchequer Court Reports Federal Reporter, Second Series Federal Supplement Gazette du Palais Georgetown Law Journal International Court of Justice Reports International and Comparative Law Quarterly

I.T.A. Studies

Studies published by Institut du Transport A6rien

Ins.Counsel I.

Insurance Counsel Journal

I.A.L.C. I.C.P. I. Royal Aeronautical Soc. I. World Trade L.

Journal of Air Law and Commerce Juris Classeur Periodique Journal of the Royal Aeronautical Society Journal of World Trade Law

McGill L.I.

McGill Law Journal

Minn.L.Rev.

Minnesota Law Review

ix

Okla.L.Rev. O.L.R.

Oklahoma Law Review Ontario Law Reports

Rech.Sp.

La Recherche Spatiale

Rev.Dr.Public

Revue de Droit Public

Rev.Trim.Dr.Comm.

Revue Trimestrielle de Droit Commercial

R.F.Astr.

Revue Frangaise d'Astronautique

R.F.D.A.

Revue Frangaise de Droit A6rien

R.G.A.E.

Revue G6n6rale de 1'Air et de l'Espace

R.D.

Recueil Officiel

S.Ct.

Supreme Court Reporter, U.S.A.

S.C.R.

Supreme Court Reports, Canada

S.CaI.L.Rev.

Southern California Law Review

S.Car.L.Rev.

South Carolina Law Review

Texas B.I. U. of Pitt.L.Rev.

Texas Bar Journal University of Pittsburg Law Review

U.S.

United States Supreme Court Reports

VaJ.Intl.Lasv.

Virginia Journal of International Law

Va.L.Rev. Wis. Bar Bull. W.W.R. Z.L.W.

Virginia Law Review Wisconsin Bar Bulletin Western Weekly Reports (Canada) Zeitschrift fur Luftrecht — und Weltraumrechtsfragen

x

Contents

v

ACKNOWLEDGEMENTS CONTRIBUTORS

VII

ABBREVIATIONS

ix

PART I: AIR LAW SECTION I-DOCTRINE CHAPTER

CHAPTER

1

2

THE INTERNATIONAL CIVIL AVIATION ORGANIZATION (ICAO) AFTER TWENTY YEARS by Walter Binaghi

S

THE SIGNIFICANCE OF "COMPETITION" AS ONE OF THE REGULATORY CRITERIA APPLIED BY THE U.S. CIVIL AERONAUTICS BOARD by Whitney Gillilland

15

SECTION II-SURVEYS CHAPTER

3 BRAZIL

37

CHAPTER

4 CANADA

40

CHAPTER

5 GERMAN DEMOCRATIC REPUBLIC

44

CHAPTER

6 INDIA

49

CHAPTER

7 UNITED STATES OF AMERICA

67

SECTION III-TREATIES CHAPTER

8

GENERAL TREATIES (Status) I. Chicago Convention on International Civil Aviation A. Amendments to the Convention 1. Protocol introducing a new Article 93 bis (First Session of the Assembly, 1947) xi

87 87 87

CHAPTER

2. Protocol amending Article 45 (Eigth Session of the Assembly, 1954) 3. Protocol amending Articles 48(a), 49(e), and 61 (Eighth Session of the Assembly, 1954) 4. Protocol amending 50(a) (Thirteenth [Extraordinary] Session of the Assembly, 1961) 5. Protocol amending Article 48(a) (Fourteenth Session of the Assembly, 1962)

88

B. Annexes to the Conventions: New Editions in 1967

88

C. Amendments to Annexes adopted in 1967

88

D. Amendments to procedures for air navigation services adopted in 1967

89

II. Chicago International Air Services Transit Agreement

90

87 88 88

III. Chicago International Air Transport Agreement

90

IV. Geneva Convention on the International Recognition of Rights in Aircraft

90

V. Guadalajara Convention, supplementary to the Warsaw Convention, for the unification of certain rules relating to international carriage by air performed by a person other than the contracting carrier

91

VI. Rome Convention relating to damage caused by foreign aircraft to third parties on the surface

91

VII. The Hague Protocol to amend the Convention for the unification of certain rules relating to international carriage by air, signed at Warsaw on 12 October 1929

91

VIII. Tokyo Convention on offences and certain other acts committed on board aircraft

92

IX. Warsaw Convention for the unification of certain rules relating to international carriage by air

92

9 BILATERAL AGREEMENTS I. Types of co-operative agreements and arrangements between States, airlines, or States and airlines

93

II. Agreements and arrangements registered with ICAO during 1967

93

III, Modifications in the status of aeronautical agreements and arrangements

106

IV. Bilateral agreements concluded by Eurocontrol

107

A. Accord entre le Ministore de la Defense — Air "Ispettorato delle Telecomunicazioni e dell'Assistenza al Volo" de la Republic Italienne et Eurocontrol. French text English translation

107 109

B. Accord entre la Direction Generale de I'Aeronautique Civile du Portugal et Eurocontrol. French text

110

xii

C. Agreement between the Ministry of Transport and of Nationalized Enterprises of the Republic of Austria and Eurocontrol. English text

11l

SECTION IV—INTER-GOVERNMENTAL ORGANIZATIONS CHAPTER

10 GENERAL ORGANIZATIONS International Civil Aviation Organization I. The Council A. Political and legal questions I. Amendments to Rule 21(a) and 21(b) and Rule 42(a) of the Rules of Procedure for the Council 2. Trilingual text of the Chicago Convention 3. Establishment of a prohibited area by Spain in the vicinity of Gibraltar 4. Problems of nationality and registration of aircraft operated by air transport agencies (including English text of the resolution adopted on 14 December 1967 by the Council on nationality and registration of aircraft operated by international operating agencies) 5. Limits of liability for passengers under the system established by the Warsaw Convention as amended by The Hague Protocol 6. New definition of "aircraft" 7. Participation of ICAO in programmes for the exploration and use of outer space 8. Structure and functions of the Secretariat: proposed establishment of a "Joint Inspection Unit"

115 116 116

B. Air navigation 1. Amendments to Annexes (except Annex 9) a) Common date of applicability for amendments to Annexes and PANS in 1968 b) Amendments adopted in 1967 2. Amendments to Procedures for Air Navigation Services 3. Amendments to Regional Supplementary Procedures 4. Code of Practice for standardizing the expression of notions or concepts relevant to the description of a flight path 5. Resolution concerning the use of international airports by aircraft engaged in general aviation activities 6. Convening of Panels and action on their Reports under delegated authority of the Air Navigation Commission 7. Establishment and use of Secretariat Study Groups in the air navigation field

137 137

116 117 117

122

129 136 136 136

137 137 139 140

140

141

142 142

C. Air transport 1. Types of co-operative agreements and arrangements between States, airlines, or States and airlines 2. Measures to develop air passenger traffic in the African regions

143 143

D. Joint financing 1. Agreement on the joint financing of the North Atlantic Ocean Stations 2. Agreement on the joint financing of certain air navigation services (i) in Greenland and the Faeroe Islands, and (ii) in Iceland

144

E. Technical assistance

145

II. Legal Committee and its Subcommittees A. Sixteenth Session of the Legal Committee 1. Election of Officers of the Legal Committee 2. Amendments to the Rules of Procedure of the Legal Committee 3. General programme of work of the Legal Committee 4. Discussions and decisions on substantive matters a) Problems of nationality and registration of aircraft operated by international agencies b) Revision of the Rome Convention (1952) c) Liability of air traffic control agencies 5. Action of the Council B. Meetings of Subcommittees of the Legal Committee in 1967 III. Relations with other international organizations A. Relations with the United Nations: coordination of administrative matters (Joint Inspection Unit) B. Relations with the World Meteorological Organization 1. Co-ordination between ICAO and WMO with respect to codes for aeronautical telecommunication services 2. World Weather Watch System 3. Relations of ICAO with other international organizations with respect to the exploration and use of outer space CHAPTER I 1

143

144 144

146 146 146 146 147 148 148 151 152 152 153 155 155 156

156 156 157

REGIONAL ORGANIZATIONS I. Council of Europe

158

H. European Civil Aviation Conference (ECAC) xiv

163

SECTION V-NON-GOVERNMENTAL ORGANIZATIONS CHAPTER

12 INTERNATIONAL ORGANIZATIONS International Air Transport Association (IATA) A. Annual Report of the Director General to the Twenty-Third Annual General Meeting, 1967 (Extracts) B. Report of the Legal Committee to the TwentyThird Annual General Meeting, 1967

177

177 179

SECTION VI-LEGISLATION CHAPTER

13 LEGISLATIVE TEXTS Argentina Law 17,094, of 29 December 1966, on sovereignty over seas and seabed off its coast United Kingdom 1. Tokyo Convention Act 1967 2. Marine, &c., Broadcasting (Offences) Act I967 3. The Carriage by Air Acts (Application of Provisions) Order 1967

185 185 195 202

SECTION VII-CASES CHAPTER

14 COURTS—Summaries of decisions I. Decisions on international conventions

221

B. The Warsaw Convention

221

II. Decisions on national laws CHAPTER

230

15 COURTS—Extracts from decisions Decisions on international conventions Warsaw Convention

CHAPTER

221

A. The Hague Protocol to amend the Warsaw Convention

245

16 ADMINISTRATIVE AUTHORITIES I. United Kingdom

257

II. United States of America

258

SECTION VIII-BIBLIOGRAPHY CHAPTER 17 BIBLIOGRAPHY 1966-1967 xv

265

PART II : SPACE LAW SECTION I-DOCTRINE CHAPTER

18 COMMERCIAL UTILIZATION OF SPACE AND THE LAW by Paul G. Dembling

283

SECTION II-SURVEYS CHAPTER

19 FRANCE Les activites spatiales de la France depuis octobre 1966

299

SECTION III-TREATIES CHAPTER

CHAPTER

20 GENERAL TREATIES I. Treaty on principles governing the activities of States in the exploration and use of outer space, including the moon and other celestial bodies

311

II. Agreement on the rescue of astronauts, the return of astronauts, and the return of objects launched into outer space. English text

312

III. Multilateral Communication Satellite Agreements (Status)

315

A. Agreement establishing interim arrangements for a global commercial communication satellite system and Special Agreement, 1964

315

B. Supplementary Agreement on arbitration

315

C. Composition of the Interim Communications Satellite Committee

315

21 REGIONAL ARRANGEMENTS I. European Organization for the Development and Construction of Space Vehicle Launchers (ELDO)

317

Agreements concluded by ELDO A. ELDO—Federal Republic of Germany Exchange of letters on the use of German test centres. English text

317

B. ELDO—France Exchange of letters relating to the use of French test centres for the development of the second stage of the launcher ELDO-A (Europa I). French text II. European Space Organization (ESRO) 1. ESRO Rules, Regulations, General Clauses, etc. English translation

xvi

319 320 320

2. Principles governing the policy and practice of the Organisation in the field of intellectual property rights. English text III. Bilateral agreements concluded by ESRO A. ESRO—Netherlands Agreement on the establishment and operation of the European Space Technology Centre. English text

326

326

B. ESRO—Norway Agreement concerning the construction and operation of a telemetry station on Svalbard (Spitzbergen). English text

336

C. ESRO—United Kingdom Agreement concerning the establishment and use of a telemetry station in the Falkland Islands. English text

337

D. ESRO—United States Exchange of notes with respect to the establishment by ESRO of an earth station on United States territory. English text Memorandum of understanding between ESRO and NASA concerning the furnishing of satellite launching and associated services. English text CHAPTER

323

341

346

22 BILATERAL AGREEMENTS I. France—Federal Republic of Germany Agreement concerning the design, construction, launching and use of an experimental telecommunications satellite. French text

349

II. France—USSR Note on the implementation of an agreement between France and the USSR concerning co-operation in space activities. French text

355

349

355

SECTION IV-INTER-GOVERNMENTAL ORGANIZATIONS CHAPTER

23 GENERAL ORGANIZATIONS I. United Nations A. Resolutions of the General Assembly. Texts 1. Resolution 2250 (S-V): Postponement of the United Nations Conference on the Exploration and Peaceful Uses of Outer Space 2. Resolution 2260 (XXII): Report of the Committee on the Peaceful Uses of Outer Space 3. Resolutions 2261 (XXII) : United Nations Conference on the Exploration and Peaceful Uses of Outer Space xvii

359 359 359 359 361

B. Reports of Committees. Summaries

362

1. First Committee, Twenty-second session of the General Assembly, 31 October 1967

362

2. Committee on the Peaceful Uses of Outer Space (Ninth and Tenth sessions)

364

3. Scientific and Technical Sub-Committee (Fifth session)

364

4. Legal Sub-Committee (Sixth session)

365

a) Draft agreement on liability for damages caused by the launching of objects into outer space

365

b) Draft agreement on assistance to and return of astronauts and space vehicles

366

c) Study of questions relative to (a) the definition of outer space and (b) the utilization of outer space and celestial bodies, including the various implications of space communications

367

C. Proposals and draft resolutions 1. Liability for damage

368 368

a) Belgium Proposal for a convention

368

b) United States of America Proposal for a convention

371

c) Hungary Revised draft convention

376

d) Other proposals and amendments

379

2. Assistance to astronauts

385

a) Union of Soviet Socialist Republics Proposed agreement

385

b) United States of America Proposed international agreement

387

c) Australia and Canada Revised proposed agreement

389

d) Other proposals and amendments

391

3. Definition of outer space

394

a) France Proposal—questionnaire

394

b) Italy Draft recommendation

395

xviii

II. International Civil Aviation Organization. Note III. International Telecommunications Union Progress report on activities between May 1966 and April 1967 CHAPTER

396 399 399

24 REGIONAL ORGANIZATIONS I. Conference Europeenne des telecommunications par satellites. Note

405

H. Council of Europe. Extract

40$

III. European Space Conference. Extract IV. European Space Vehicle LauncherDevelopment Devel Organization (ELDO) A. The 1966 Ministerial Conferences and the new orientations of the Organization's activities. Extracts B. ELDO activities--1967. Note C. Short and long term orientation of ELDO: Report by the Secretary General to the European Space Conference. Extracts D. The question of liability within ELDO. Note V. Organisation Europtenne de Recherches Spatiales (CERS/ESRO). Note

417 423 423 427

429 433 434

SECTION V—NON-GOVERNMENTAL ORGANIZATIONS CHAPTER

25 NATIONAL ORGANIZATIONS USA: Communications Satellite Corporation (Comsat) and International Telecommunications Consortium (Intelsat) A. Development in 1967. Extracts B. Agreements concluded by Comsat Earth station ownership agreement with American Telephone and Telegraph Company and others. English text

441 441 445 445

xix

PART I: AIR LAW

Section I Doctrine

Chapter 1

The International Civil Aviation Organization (ICAO) after Twenty Years Its Activities in the Technical, Economic, and Legal Fields WALTER BINAGHI*

The International Civil Aviation Organization came into being on 4 April 1947, thirty days after the deposition by Spain of the twenty-sixth instrument of ratification required by the Chicago Convention on International Civil Aviation. The ICAO Assembly held its first session in May 1947, succeeding the Interim Assembly of the Provisional International Civil Aviation Organization (PICAO) which had met in Montreal in the Summer of 1946. Thus, it is fitting that the Yearbook of Air and Space Law, 1967, should contain a balance sheet of the activities and achievements of ICAO during its first twenty years. The ICAO record is one of straightforward progression, devoid of any significant ups and downs. Undoubtedly, this is due to a large extent to the remarkable stability of ICAO. During its entire existence, ICAO has had only two Presidents: Dr. Edward Warner (1946-1957), and the author. Moreover, for a long period of time, national representatives of the Council remained in office for a number of years rather than rotating on a three-year basis as it is now the case in most instances: indeed, one representative who participated at the Chicago Conference and sat on the PICAO Council only left the Council of ICAO in 1967. Similarly, a high proportion of the professional staff which was recruited in the early stages of ICAO are still members of the Secretariat, although the age limit is starting to take its toll now. To these "factual" causes of ICAO's success must be added the indelible mark left by the first President of the Council. It was indeed Dr. Warner's foresight, imagination, and resourcefulness which put ICAO on the road, imparted to it a momentum which is still felt today, and makes it possible for ICAO to play a decisive part in the accomplishment of its * President of the Council of ICAO.

5

Section 1— Doctrine primary missions: to meet the needs of the peoples of the world for safe, regular, efficient and economical air transport; to promote safety of flight in international air navigation; and to promote generally the development of all aspects of international civil aeronautics. Those who follow developments in international civil aviation and who, therefore, are generally aware of the activities of ICAO, know that the Organization's greatest success has been in the technical field. This fact, in turn, makes many take for granted the technical work of ICAO, without realizing that it is in constant evolution and that our working methods are being improved constantly to permit us to stay up-to-date in satisfying the growing demands of international air navigation. Another effect of this recognition of ICAO's successful work in the technical field is a tendency to forget the activities of the Organization in the economic and legal fields. It is true that our work there has been slow and not as successful; yet it is not unimportant. If greater success has not been achieved, it is only because the States have not felt much need for action by the Organization and, therefore, have not wanted ICAO to do more. A comparison of ICAO's work in the different fields in the last ten years shows that while our activities in the technical field have been constantly expanding, they now represent a smaller proportion of our total output, that work on economic matters has gained, and that legal activities have remained about the same as in the past. This does not mean that less attention is given to technical activities, but only that more attention is devoted to the economic problems of air transport. The technical standards and recommended practices of ICAO in the air navigation field are contained in fourteen Annexes, of which ten were adopted during the years 1948 and 1949, three in 1950 and 1951, and the last in 1953. Since then, all of them have undergone substantial amendments. About six or seven Annexes have been amended every year, with half that number being altered in a substantial manner. In addition to the Annexes, which have a special status under the Convention, there are Procedures for Air Navigation Services (PANS) and Codes and Abbreviations. They have only the status of recommendations, but in practice they are followed by States in almost the same manner as Annexes. Also, they are subject to amendment rather more frequently than the Annexes, which is one of the reasons why the material has not been given higher status. The preparation of Standards, Recommended Practices, and Procedures (SARPs) for incorporation in Annexes or PANS is always based on recommendations made by world-wide technical meetings where all contracting States have the right to be represented. The Air Navigation Commission makes a first examination of those recommendations and, with its comments or suggestions for changes, they are circulated to all Contracting States. On receipt of the observations from States, the Commission makes a final review and submits them for adoption by the Council. This process ensures that States' opinions are carefully con6

ICAO AFTER TWENTY YEARS

sidered and, as a result, the great majority of States apply the standards, recommended practices, and procedures with very few variations. When a State does not conform with a particular standard, it must file a deviation under Article 38 of the Convention. All deviations are published by ICAO for the information of all States. During the last years, it has become evident that it is not possible, within the limited time allotted to technical meetings (generally four weeks), to discuss and prepare specifications on specialized subjects. To solve the problem, use has been made of technical panels composed of a limited number of experts from States. The material they prepare is submitted to world-wide meetings to ensure that it is acceptable to States. More recently, in addition to panels, study groups have been established. In the case of study groups, three or four experts from national administrations assist the Secretariat in developing complex technical material. The Secretariat remains responsible for the task, and the result appears in the form of a Secretariat working paper submitted to the appropriate body. Both panels and study groups work by correspondence, with occasional meetings if necessary. To supplement the material in Annexes and PANS, the ICAO Secretariat prepares manuals of which we have about a dozen, with two (the Aerodrome Manual and the Training Manual) comprising several volumes.' In the preparation of standards, recommendations, and procedures, ICAO can not exceed proven technical developments. This is inevitable, because States would not agree on standardization of procedures or equipment which have not been tried out extensively. It is also worth mentioning that States have repeatedly requested that the material in Annexes and PANS be given a certain degree of stability, so as to permit adequate implementation and reduce capital costs of equipment and retraining of personnel. A balance must be struck between the wish to adopt the latest techniques, and the need to obtain a good return from the investment made in equipment or trained staff. Just as important as specifying equipment and procedures for worldwide use is the preparation of lists of facilities and services that must be provided at specific locations throughout the world to ensure safety of flight. These lists are contained in the ICAO Regional Plans prepared by regional meetings held once every four or five years for each of the nine ICAO regions. Between meetings, a Plan is kept current by limited meetings to consider parts of that plan, and by a procedure of amendment by correspondence. The existence of SARPs and Regional Plans is of no value unless States implement them; the degree of implementation is the only real measure of success of ICAO's technical work. Every State, under Article 28 of the Convention, has undertaken to apply the specifications and 1. See list of the Manuals in Appendix I.

7

Section 1— Doctrine provide facilities and services as established by the Council, but the undertaking is qualified by the words "so far as it may find practicable." Each Contracting State has to decide how much to spend in implementadon, and many make great efforts in that direction because of the great benefits that international civil aviation brings. Lack of funds and lack of personnel are the main causes of lack of implementation by States. To a certain degree, lack of funds can be solved by the application of charges for the use of aerodromes and route air navigation facilities; but when there is little traffic, it would be unreasonable to attempt to recover from operators the total cost of the facilities and services. For States which are unable to provide the required facilities, the Convention permits the establishment of joint financing arrangements with participation by States interested in the existence of the ground facilities: in other words, those States whose airlines need the facilities. Experience has shown that it is very difficult to obtain the agreement of States for joint support arrangements. Only in the North Atlantic has ICAO found it feasible to arrange for such joint financing schemes. They cover nine ocean stations, mainly for meteorological purposes, and ground facilities and services in Iceland, Greenland, and the Faeroes.2 Contributions to these joint financing schemes are paid by governments and, so far, their respective airlines have not been asked to refund them. Requests for help in areas other than the North Atlantic have not met with success. The result is that implementation lags in some regions and ICAO cannot provide the financial assistance required. The second problem, lack of trained personnel, is as difficult as the financial one. It is connected with the latter since it is not enough to train personnel; it also is necessary to pay good salaries to keep trained personnel on the job. Through its six Regional Offices, in Bangkok, Cairo, Dakar, Lima, Mexico, and Paris, the Organization fosters implementation. The experts in the Regional Offices regularly carry out missions, advising on, and co-ordinating, implementation action by States so that the best order of priority is followed. The staffs of the Regional Offices are reinforced from time to time with implementation teams, consisting of two or three experts who visit States for three or four weeks and assist the aviation administrations in improving ground services. Another important element in providing assistance to States in the implementation of world-wide specifications and regional plans is the technical assistance provided by ICAO. Since 1950 the Organization has participated in the United Nations Expanded Programme of Technical Assistance (EPTA), and throughout the years has rendered assistance to its Contracting States by providing advisers to civil aviation administrations, experts to operate the services, and instructors to train local personnel in the different specialized fields of civil aviation. In addition to the EPTA programme, the United Nations Special Fund (SF) was established in 1958. It differs from EPTA in that the projects undertaken 2. See text of relevant agreements In Yearbook of Air and Space Law, 1965, P. 99.

8

ICAO AFTER TWENTY YEARS

involve larger sums (the contribution from the SF for each project is of the order of half a million dollars) and extend over a period of several years (generally five or six).$ Special Fund projects in which ICAO is, or has been, the executing agency include the establishment of civil aviation training centres in Bangkok, Cairo, Casablanca, Mexico, Nairobi, Tunis, and Zaria (Nigeria). Additionally, there is a Flight Safety Centre in Beirut. All these centres are open to students from other States. Generally, the students are given scholarships by their respective governments, or by ICAO with funds available under the EPTA programme or the SF project for the corresponding centre. The administration of the two programmes (EPTA and SF) have now been merged into the United Nations Development Programme (UNDP), with effect from 1 January 1966. In the air transport field, ICAO's activities have not evolved as rapidly as its technical work. The idea of a multilateral agreement for the granting of traffic rights failed at Chicago. The Convention leaves negotiation and agreement on the matter to the States concerned. In the case of non-scheduled operations, non-commercial flights are guaranteed by Article 5, but commercial flights are subject to specific permission by the State involved. Efforts made after Chicago, particularly at a special conference in 1948,' did not succeed in reaching accord on a multilateral approach to the subject of traffic rights, and since then the Organization has left the idea dormant. However, as a partial solution to the problem, it has been recognized since 1953 that a regional approach might be more successful, and some progress with this approach has been made by the European Civil Aviation Conference (ECAC).5 A fruitful function of the Organization during the past five or six years has been to publish studies on different aspects of air transport throughout the world; these studies, prepared by the Secretariat, contain conclusions which suggest specific action to member States. The subjects covered include surveys of the economics of air transport world-wide, or in particular regions, and also the economics of aerial work, air freight (world-wide and in Latin America), and the development of air passenger travel in Africa.° Other studies of a similar nature already are on the work programme and eventually will contribute to a better understanding of how air transport develops in the world. On the basis of these studies, interested governments will be able to take the necessary measures to improve existing conditions. Regional groupings of States have taken place during the last few years as a means of coping with economic and social problems. Civil 3. From 1950 to 1967 inclusive, ICAO spent approximately $22,391,000 on field projects under the Technical Assistance component of the UNDP (previously called EPTA). Regarding the Special Fund component of the UNDP (previously called simply Special Fund), the total contribution for field expenditure of ICAO for projects approved, some of which have been completed and others which are still in progress, is $11,355,000. 4. The proceedings of this Conference are published in Doc 5230 A2-E6/10 (3 vols). 5. See multilateral agreement on commercial rights of nonscheduled air services in Europe signed at Paris on 30 April 1956, Yearbook of Air and Space Law, 1965, p. 176. 6. See list of economic studies prepared by the Air Transport Bureau in Appendix II.

9

Section 1— Doctrine

aviation has not been an exception. In addition to the ECAC (in existence since 1954), the African States have indicated their desire to constitute a regional commission for civil aviation, and the South American States have started to discuss civil aviation subjects within the Latin American Free Trade Association. It would not be surprising if at a later stage they also seek to establish a body similar to ECAC. The Assembly of ICAO, recognizing the importance of these regional bodies and the essential need to keep them within ICAO, so that their activities develop in harmony with the general policies of the Organization, has instructed the Council to render support and assistance to regional undertakings. This is being done by the Secretariat and in the future, much of ICAO's work in the economic field will be directed towards regional problems, thereby ensuring world-wide co-ordination as a means of diminishing inter-regional conflicts. From the inception of the Organization, aviation statistics filed by States have been analysed and published by the Organization. A substantial volume of information is made available on a regular basis to all States through the publication of the ICAO Statistical Digests. They are divided into six series covering Traffic, Traffic Flow, Finances, Fleet, and so on. In the last year the Organization has mechanized its statistical work, thus improving its quality and timeliness. A question of growing importance in the economic field is the application of charges for the use of airports and route facilities. The growing complexity and cost of these facilities and services, and the constant expansion required at airports for the landing area and for passenger and cargo terminals, have prompted many administrations to impose charges aimed at recovering the operating costs and amortizing the capital investment. The problem is difficult since sudden increases in user charges, without adequate warning, may hamper the financial position of airlines. Additionally, lack of uniformity in the charges system has resulted in varying levels of charges for the same services which are provided in different parts of the world. Ten years ago ICAO attempted to establish certain basic principles', and had partial success only after two conferences were held and the Council had issued the statements of basic principles.8 These principles required revision, and at a recent conference (Spring 1967) they were improved. The Council will issue a new statement on the subject in early Spring 1968.9 The Organization also will conduct studies of costs of route facilities in different areas of the world in an attempt to obtain a uniform and well-planned approach to the imposition of charges. Facilitation of air transport is a field in which the Organization has been most successful. The need to eliminate unnecessary formalities attendant on immigration, customs, quarantine, and other such practices 7. Route Facility Charges Conference, Montreal, 18 March-1 April 1958, Doc 7874 AFC/1. 8. For the statements, see Doc 7806 and Doc 7941. 9. Conference on Charges for Airport and Route Navigation Facilities, Montreal, 30 March18 April 1967, Doc 8675 CARF (1967).

10

ICAO AFTER TWENTY YEARS

is recognized in the Chicago Convention. Annex 9, kept current by the Council on the basis of recommendations of the Facilitation Division, is applied increasingly by States and has already resulted in the elimination of much paper-work and in the faster flow of passengers and cargo. The travelling public and shippers have benefitted; costs to airlines and governments have been reduced. In the legal field, the work of ICAO has proceeded slowly. The reasons are many, but the principal one probably is that many governments find it difficult to modify their respective legislations so as to adhere to international aviation conventions. ICAO took over work in the legal field from CITEJA which, among other accomplishments, had been responsible for the preparatory work which led to the signing of the Warsaw Convention in 1929 regarding the unification of certain rules relating to international carriage by air. The first Convention concluded under the auspices of ICAO was the Geneva Convention on the International Recognition of Rights in Aircraft, signed in Geneva in 1948 after studies initiated in CITEJA and completed by the ICAO Legal Committee and Assembly. The Geneva Convention, almost 20 years after being opened for signature, has been ratified or adhered to by only 27 States. The Convention was aimed at fulfilling an important need—that of facilitating the purchases of aircraft by airlines. Financing of such purchases becomes easier if the States whose aircraft manufacturers, lending institutions, and airlines involved in a transaction are parties to the Convention, which guarantees the international recognition of rights of property in aircraft; rights to acquire aircraft by purchase coupled with possession of the aircraft; rights to possession of aircraft under leases; and mortgages and hypothecs, and similar rights in aircraft which are contractually created as security for payment of an indebtedness. This recognition of rights flows from their being constituted and recorded in accordance with the requirements laid down in the Convention. The Convention also established the order of priority of rights. The fact that only a few States have, so far, become parties to the Convention suggests that, in practice, the financing arrangements for the purchase of aircraft have been possible without it during the intervening years. However, the situation may well change in the future, when substantial investments will be required by airlines purchasing jumbo jets and supersonic aircraft. The need for an international system covering the question of adequate compensation for persons who suffer damage caused on the surface by foreign aircraft, and at the same time limiting the extent of the liability incurred for such damage, resulted in a Convention prepared under the auspices of ICAO and signed in Rome in 1952. This Convention, entitled Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, replaces the Rome Convention of 1933 for States that become parties to it. The Convention includes the principle of absolute liability, with certain exceptions; establishes limits of liability for damage which vary with the weight of the aircraft; and for death or 11

Section I — Doctrine injury establishes a limit of 500,000 gold francs (U.S. $33,200) per person. At present, only 20 States are party to the Rome Convention. Possible modifications of it have been under study for several years in ICAO, but present indications are that the work will not be completed until the problem of the Warsaw/Hague system is solved.'0 In 1955, a diplomatic Conference convened by ICAO was held in The Hague and resulted in an amendment to the Warsaw Convention in the form of a "Protocol to amend the Convention for the unification of certain rules relating to international carriage by air signed at Warsaw on 12 October 1929." The main result of the Protocol was to double the limit of 125,000 gold francs (U.S. $8,300) provided in the Warsaw Convention; to enable the court to award an additional sum for court costs and other expenses; and to relax the circumstances under which the carrier would lose the benefit of the limits. A possible revision of the Warsaw/Hague system had been under consideration in ICAO for several years, particularly with regard to the limits, which many considered were too low. In late 1965, when it became known that the Government of the United States of America intended to denounce the Warsaw Convention, the study of the revision received first priority. A special meeting was convened by ICAO in February 1966 to deal with the revision of the liability limits but failed to reach an acceptable solution.1' In order to avoid denunciation by the USA, an agreement between the USA Civil Aeronautics Board and airlines operating into that country was executed in May 1966, wherein a regime of absolute liability coupled with higher limits ($75,000 inclusive of legal fees and costs or $58,000 exclusive of legal fees and costs) was accepted.12 Later in 1966, ICAO set up a panel of fifteen economic and legal experts reporting directly to the Counci1.18 At the time of writing, it is not possible to say what will be the next step on this question, except that, eventually, a diplomatic conference to amend the Convention will be held. The Guadalajara Convention, Supplementary to the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other Than the Contracting Carrier was signed at Guadalajara in 1961. At present, 22 States are parties to it. This Convention covers a number of questions which have arisen as a result of the expansion of air transport and the different practices introduced by operators to obtain the best possible utilization of their aircraft. The subject of the status of the aircraft commander has been under consideration for many years. A partial solution to some of the problems involved was obtained by the signing of the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft at 10. 11. 12. 13.

See hereunder, p. 151. See Yearbook of Air and Space Law, 1966, p. 233. Ibid., p. 118. Ibid., p. 246.

12

ICAO AFTER TWENTY YEARS

Tokyo in 1963. For the Convention to come into force 12 ratifications are necessary; at the time of writing, only 6 States have ratified it. In closing this schematic presentation of ICAO's work, it should be said that the coming years in civil aviation will have in store many problems that will require new types of solutions. The Organization, through its permanent bodies and Secretariat, will be ready to cope with requirements as they arise, using available resources in the best possible manner. APPENDIX I TECHNICAL MANUALS PUBLISHED BY ICAO

Aerodrome Manual, Doc 7920-AN/865: Part 1.—General Part 2.—Aerodrome Physical Characteristics Part 3.—Obstruction Restriction, Removal and Marking Part 4.—Visual Ground Aids Part 5.—Equipment, Procedures and Services Part 6.—Heliports Part 7.—Water Aerodromes Aeronautical Information Services Manual, Doc 8126-AN/872. Manual of Aircraft Accident Investigation, Doc 6920-AN/855-3. Manual of ICAO Standard Atmosphere, Doc 7488/2. Manual of Procedures for Operations Certification and Inspection, Doc 8335-AN/879. Manual of Teletypewriter Operating Practices, Doc 7946-AN/868/4. Manual on the Planning and Engineering of the Fixed Telecommunication Network, Doc 8259-COM/553/3. Manual on Testing of Radio Navigation Aids, Doc 8071. Ocean Station Vessel Manual, Doc 6926-AN/856/4. Search and Rescue Manual, Doc 7333-AN/859/2: Part 1.—The Search and Rescue Organization Training Manual, Doc 7192-AN/857: Part Gen 1.—Licensing Practices and Procedures Part 1.—General Part 2.—Private Pilot Part 3.—Commercial Pilot Licence Part 4.—Senior Commercial Pilot and Airline Transport Pilot Part 5.—Instrument Rating Part 6.—Aeronautical Meteorological Assistant Part 7.—Aeronautical Meteorological Forecasters Part 8.—Aeronautical Radio Operator Part 9.—Aeronautical Radio Maintenance Mechanic Part 10.—Flight Navigator Licence Part 11.—Aircraft Maintenance Personnel Part 12.—Film Catalogue 13

Section I — Doctrine Part 13.—Air Traffic Control and Communications Trainer Part 14.—Air Traffic Controller—Licence and Ratings Part 14b.—Air Traffic Controller—Radar Rating Part 15.—Flight Operations Officer Part 16.—Aerodrome Fire Services Personnel Part 17.—Flight Instructor Rating Part 18.—Synthetic Radar Trainer for Air Traffic Controllers Part 20.—Helicopter Pilot Part 28.—Cabin Attendants

APPENDIX II ECONOMIC STUDIES PREPARED BY THE AIR TRANSPORT BUREAU

The Economic Implications of the Introduction into Service of Longrange Jet Aircraft (Doc 7894-C/907, June 1958). The Technical, Economic and Social Consequences of the Introduction into Commercial Service of Supersonic Aircraft (Doc 8087-C/925, August 1960). Air Mail Study (Doc 8240-AT/716, April 1962). Air Freight (Doc 8235-C/937, June 1962). Inclusive Tour Services (Doc 8244-AT/717, August 1962). Aerial Work (Doc 8337-C/944, June 1963). Air Transport in Africa (Doc 8419-AT/718, July 1964). Charges for Airport and Route Air Navigation Facilities Global Position 1963 (Doc 8490-C/957, May 1965). Air Freight in the Latin American Region (Doc 8487-AT/720, June 1965). A Review of the Economic Situation of Air Transport (Circular 73-AT/ 10, June 1965). North Atlantic Traffic Forecasts (Circular 76-AT/11, March 1966). Air Transport Operating Costs (Circular 77-AT/12, May 1966) . Development of International Air Passenger Travel—Africa (Circular 80-AT/13, June 1967) .

14

Chapter 2

The Significance of "Competition" as One of the Regulatory Criteria Applied by the U.S. Civil Aeronautics Board THE HONOURABLE WHITNEY GILLILLAND*

BACKGROUND FOR COMPARISON

Among the remarkable Americans of the last century were two brothers named Sherman. One of them, William Tecumseh, was a soldier in the famous march from Atlanta to the sea. The other, John, was a statesman who chaired the Finance Committee of the United States Senate when the first Federal antitrust laws were enacted. There is an interesting coincidental relationship in their careers, for the enormous material requirements of the Civil War were an initial stimulant to the industrial expansion, to the concentration of economic power, and to the erosion of competitive forces, which resulted in the enactment of the antitrust laws.' There have been persons who viewed the endeavors of both with gloom, and there have been similarities in the forebodings of those who have run afoul of the antitrust laws2 and those whose properties lay in the path of the army.3 Fundamental to the philosophy of the antitrust laws, that is, the Sherman Act,4 adopted in original form in 1890, and the Clayton • Member of the Civil Aeronautics Board, Washington, D.C. 1. Representative Henderson of Iowa, afterward Speaker of the House, interrupted the discussion of the bill to state and ask, in part, as follows: ". . I think it has been well settled.. that a trust or combination of a few men in Chicago . .. has been able to reduce the price of western cattle from one-third to one-half, controlling as they do the stock yards, the cattle yards and the transportation in Chicago; and it seems at the same time they have been enabled to keep up the price of every beefsteak that is used in this country. . . Does the bill go as far as Congress has the power to go to strike at that damnable system?" Walker, History of the Sherman Law 37 (1910). There was a curious divorcement of private morality from public morality. The in• dustrialist who bludgeoned competitors and victimized customers could still be an object of community veneration provided that he was fastidious about alcohol, sex, and blasphemy." Kintner, An Antitrust Primer—A Guide to Antitrust and Trade Regulation Laws for Businessmen 5 (1964). . When court decisions outlaw or threaten anticompetitive control these oppositionists 2. storm the Halls of Congress seeking legislation granting antitrust immunity." Henderson and Henderson, Will a "Zaibatsu" Control our Economy? 26 Fed. B.J. 187, 200 (1966). . [Ilt is not an unwillingness to oppose the enemy, but a chilling apprehension of the 3. futility of doing so which affects the people." Governor of South Carolina to Jefferson Davis, President of Confederate States of America, in L. Lewis, Sherman—Fighting Prophet 486 (1932). 4. Sherman Act (Act of July 2, 1890, 26 Stat. 209; as amended by Act of March 3, 1911, 36 Stat. 1167; Act of August 17, 1937, 50 Stat. 693; Act of July 7, 1955, 69 Stat. 282; Act of July 7, 1955, 69 Stat. 283).

15

Section I - Doctrine Act,6 adopted in original form in 1914, and of others enacted to implement, expand upon, or accommodate antitrust principles, and even, in some instances, to modify or negate their application, is the belief that the encouragement of competition in commerce and industry is ordinarily in the public interest, stimulates efficiency and innovation, and is the device best calculated to promote quality of product and a fair price. This philosophy has now become the habit of mind of nearly all Americans and is evidenced in the laws throughout our governmental structure, both of the nation and of the several states. The American institution of antitrust has sometimes been looked upon from abroad "as a remarkable compound of law, economic philosophy, cultural commitment and social religion."e In the United States it has been looked upon as practical and effective, albeit sometimes highly controversial in its manifold manifestations. The air transportation laws of the United States have been deeply affected by this philosophy, both in content and in administration. The scheme or plan was to accommodate the philosophy to the special problems of a particular industry. Thus the air transportation laws have a special relationship to the antitrust laws and a particular application of principles of competition in the context of the public interest. For purposes of subsequent comparison here the antitrust laws7 are primarily deemed to be: section 1 of the Sherman Act which declares contracts, combinations, or conspiracies in restraint of interstate or foreign trade or commerce to be illegal; section 2 which makes it a misdemeanor to monopolize, or attempt to or combine or conspire to monopolize, interstate or foreign commerce; section 7 of the Clayton Act which deals with acquisitions of competing companies; and section 8 which deals with interlocking directorates .8 These laws are administered in part by the Department of Justice and in part by the Federal Trade Commission, where a great many persons are engaged in so doing. Among the restrictive devices subject to challenge are: (1) mergers of competing companies, (2) interlocking directorates of competing companies, and (3) agreements for pooling or apportioning earnings, losses, equipment, and the like together with others relating to charges or affecting competition. 5. Clayton Act (Act of October 15, 1914, 38 Stat. 730; as amended by Act of May 15, 1916, 39 Stat. 121; Act of May 26, 1920, 41 Stat. 626; Act of March 9, 1928, 45 Stat. 253; Act of March 2, 1929, 45 Stat. 1536; Act of June 19, 1934, 48 Stat. 1102; Act of August 23, 1935, 49 Stat. 717; Act of June 19, 1936, 49 Stat. 1526; Act of June 23, 1938 (Civil Aeronautics Act) 52 Stat. 973; Act of June 25, 1948, 62 Stat. 862; Act of December 29, 1950, 64 Stat. 1125; Act of July 7, 1955, 69 Stat. 282; Act of August 28, 1958, 72 Stat. 941; and Act of July 23, 1959, 73 Stat. 243). 6. Fortes, Foreword to Neale, The Antitrust Laws of the United States of America (1962). 7. See notes 4 and 5 supra. 8. Section 2 of the Clayton Act deals with price discrimination and $ 3 with exclusive dealing and tying contracts. Section 11 of the Clayton Act confers upon the Civil Aeronautics Board authority to enforce compliance with 8 2, 3, 7, and 8 where applicable to air carriers and foreign air carriers subject to the Civil Aeronautics Act of 1938 (now Federal Aviation Act). t$ = section; $$ = subsection, unless otherwise indicated.]

16

"COMPETITION"—REGULATORY CRITERIA APPLIED BY U.S. CAB THE SPECIAL LAWS PERTAINING TO THE CIVIL AERONAUTICS BOARD

There are many sections of the Federal Aviation Act defining the duties of the Civil Aeronautics Board which pertain to competition. The one which points the way is that set forth in the Declaration of Policy,° in part as follows: In the exercise and performance of its powers and duties under this Act, the Board shall consider the following, among other things, as being in the public interest, and in accordance with the public convenience and necessity• (d) Competition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defence....

The pertinent portions of the Federal Aviation Act were first adopted in the Civil Aeronautics Act10 in 1938. The duties of the Civil Aeronautics Board are primarily economic regulation. The Board is generally regarded as an arm of the Congress and exercises powers delegated to it by the laws of the Congress. It has no other powers. It is a bipartisan agency. Its five members are appointed by the President subject to the advice and consent of the Senate, and serve staggered terms. There is always some one on the Board whose official term began in a previous administration. The draftsmen of the Act, of course, had much of a public utility concept in mind." They realized that an unlimited number of common carriers in a competitive market might be more than the market could absorb and result in demoralization rather than in facilitation of service. They, therefore, gave the Civil Aeronautics Board control of entry. United States air carriers seeking to engage in air transportation, foreign or domestic, were required to obtain certificates of public convenience and necessity, and in order to do so to meet the tests of the Declaration 9. Federal Aviation Act of 1958 1102, 72 Stat. 740, 49 U.S.C. 1302: In the exercise and performance of its powers and duties under this Act, the Board shall consider the following, among other things, as being in the public interest, and in accordance with the public convenience and necessity: (a) The encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense; (b) The regulation of air transportation in such manner as to recognize and preserve the inherent advantages of, assure the highest degree of safe;y in, and foster sound economic conditions in, such transportation, and to improve the relations between, and coordinate transportation by, air carriers; (c) The promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantage, or unfair or destructive competitive practices; (d) Competition to the extent necessary to assure the sound development of an airtransportation system properly adapted to the needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense; (e) The promotion of safety in air commerce; and (f) The promotion, encouragement, and development of civil aeronautics. 10. Civil Aeronautics Act of 1938, 52 Stat. 977, as amended, 49 U.S.C. 401, et seq. 11. "The Act was . .. premised in part on the 'natural monopoly' theory underlying conventional public utilty regulation, the commercial aviation industry being analogized to other transportation and utility industries." W. K. Jones, 19 ABA Antitrust Section, Antitrust and Specific Economic Regulation: An Introduction to Comparative Analysis 307 (1961).

17

Section 1— Doctrine of Policy.12 Foreign air carriers seeking to engage in foreign air transportation, that is, transportation to and from the United States, were required to obtain permits to do so, and likewise to meet the tests of the Declaration of Policy.13 In each instance the Board was authorized to attach such reasonable terms, conditions, or limitations as the public interest may require,l" and to subsequently modify, suspend, or revoke under designated circumstances.15 Likewise the lawmakers realized that a similar result might emanate from unrestricted rate competition. For that reason, among others, they gave the Board rate authority. They also equipped it with many statutory tools to use in fulfilling the purposes of the Act. Within this framework the lawmakers gave recognition to the desirability of competition in both domestic and foreign commerce in many ways.16 This was done by the special adaptation of competitive principles to fit the needs of the regulatory scheme, and by adjusting the applicability of the antitrust laws accordingly. Conformably, a central theme of the Board in developing an air transportation system, both domestic and international, has been to limit entry of qualified applicants to the exercise of the various authorities under its jurisdiction, sufficiently to afford the participants significant economic opportunities, but on the other hand to admit a sufficient number, where economically feasible, to assure that competitive forces would come into full play. Indeed the Board is forbidden to restrict the right of a certificated United States route carrier to add to or change schedules, equipment, accommodations, and facilities as the development of the business and the demands of the public shall require,l7 although it does have authority to require adequate services.'8 It has generally been considered that the Board's balancing act with competition has been successfully performed, and carried out with considerable effect. Before delving into specific sections of the Act related to competition and the public interest,19 it will be well to call attention to three statutory 12. Federal Aviation Act of 1958 5 401(a), '72 Stat. 754, 49 U.S.C. 1371. 13. Federal Aviation Act of 1958 5 402(a). 72 Stat. 757, 49 U.S.C. 1372. 14. Federal Aviation Act of 1958 I 401(e)(1), 72 Stat. 754, as amended by 76 Stat. 143, 49 U.S.C. 1371; and 5 402(e), 72 Stat. 757, 49 U.S.C. 1372. 15. Federal Aviation Act of 1958 8 401(g) 72 Stat. 754, as amended by 76 Stat. 143, 49 U.S.C. 1371; and 5 402(f), 72 Stat. 757, 49 U.S.C. 1372. 16. The Congress wrote into the statute "... more provisions protective of 'competition' than were included in any previous regulatory scheme." W. K. Jones, see note 11 supra, p. 276. 17. Federal Aviation Act of 1958 5 401(e)(4), 72 Stet. 754, as amended by 76 Stat. 143, 49 U.S.C. 1371. 18. Federal Aviation Act of 1958 5 404, 72 Stat. 760, 49 U.S.C. 1374; 1 1002, 72 Stat. 788, 49 U.S.C. 1482. 19. Sections 408, 409, and 412. There are, of course, other sections which relate closely. Section 411 of the Act authorizes the Board, if it considers such action to be in the public interest, to investigate and determine whether any domestic or foreign air carrier, or ticket agent, has, or is, engaged in unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof. The Board is required to support such a determination by cease and desist action, and a violation may be brought before the Courts (5 1007). Section 411 has a relationship to 5 5 of the Federal Trade Commission Act (38 Stat. 717) which provides that "unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce are hereby declared illegal."

18

"COMPETITION"—REGULATORY CRITERIA APPLIED BY U.S. CAB

definitions. The first is that of "air carrier." This means a citizen of the United States who engages in "air transportation."20 The second is "foreign air carrier." This means a person not a citizen of the United States who engages in "foreign air transportation."21 The third is "foreign air transportation." This means common carrier air services between a place in the United States and a place outside thereof.22 Thus common carrier air services between places entirely outside the United States do not fall under these definitions although, as we shall see, persons so engaged may sometimes come within the language of various statutory provisions as "other carriers" or as persons "engaged in a phase of aeronautics." THE THREE EXEMPTED SECTIONS

The three provisions of the Federal Aviation Act to which I wish to direct special attention are those set forth as sections 408 (the merger section),23 409 (the interlocking relationships section),24 and 412 (the agreements section).25 The Board annually processes approximately three thousand work units under these sections. We will term them cases. Many of them are simple and more or less pro forma. Others are large and complex. All are important in the scheme of the Board's operations. Foreign air carrier interests are involved in a respectable percentage. These three sections are particularly significant in that transactions approved under them are specifically exempted by statute from the operation of the antitrust laws. Thus section 414 of the Federal Aviation Act states: Any person affected by any order made under sections 408, 409, or 412 of this Act shall be, and is hereby, relieved from the operations of the "antitust laws," ... and of all other restraints or prohibitions made by, or imposed under, authority of law, insofar as may be necessary to enable such person to do anything authorized, approved, or required by such order.26

Accordingly, where approvals are granted within the lawful jurisdiction of the Board under these sections, that is the end of the matter so far as the antitrust laws are concerned, subject only to such conditions and reservations as the Board may impose. In short, to the extent of their scope, they substitute for and supplant the antitrust laws. 20. Federal Aviation Act of 1958 8 101(3), 72 Stat. 737, as amended by 75 Stat. 467, 76 Stat. 143, 49 U.S.C. 1301. 21. Federal Aviation Act of 1958 8 101(19), 72 Stat. 737, as amended by 75 Stat. 467, 76 Stat. 143, 49 U.S.C. 1301. 22. Federal Aviation Act of 1958 g 101(21), 72 Stat. 737, as amended by 75 Stat. 467, 76 Stat. 143, 49 U.S.C. 1301. 23. Federal Aviation Act of 1958 8 408, 72 Stat. 767, as amended by 74 Stat. 901, 49 U.S.C. 1378. 24. Federal Aviation Act of 1958 1409, 72 Stat. 768, 49 U.S.C. 1379. 25. Federal Aviation Act of 1958 1412, 72 Stat. 770, 49 U.S.C. 1382, 26. Federal Aviation Act of 1958 ¢ 414, 72 Stat. 770, 49 U.S.C. 1384. There is a similar provision in § 7 of the Clayton Act (note 5) as follows: "Nothing contained in this section shall apply to transactions duly consummated pursuant to authority given by the Civil Aeronautics Board ... under any statutory provision vesting such power in such . Board."

19

Section I — Doctrine Section 408 (the merger section) prohibits, absent prior Board approval, all consolidations, mergers, purchases, leases, operating contracts, and acquisitions of control wherein one of the parties is an air carrier, or person controlling an air carrier, and the other an air carrier, or other common carrier, or person in control of a common carrier, or engaged in any phase of aeronautics, and foreign air carrier acquisition of control of American air carrier enterprises. The issue upon which the Board passes is that of the public interest. The section includes a proviso, commonly identified as the first proviso, relating to monopolies. The proviso presents some interesting problems, which will be examined later. Section 409 (the interlocking relationships section) pertains to interlocking relationships between air carriers and other common carriers or persons engaged in aeronautics, such as officers, directors, controlling stock interests, and the like. It prohibits the relationships defined therein unless first approved by the Board. Among the entities identified under one or more of the subsections are air carrier officers, directors, representatives or nominees of air carrier officers or directors, members, and controlling stockholders in a common carrier or other concern engaged in any phase of aeronautics. Again the test is that of the public interest. Section 412 (the agreements section) requires that air carriers file for Board consideration all agreements with other air carriers, foreign air carriers, or any other carriers, for ... Mooting or apportioning earnings, losses, traffic, service, or equipment, or relating to the establishment of transportation rates, fares, charges, or classification, or for preserving and improving safety, economy, and efficiency of operation, or for controlling, regulating, preventing, or otherwise eliminating destructive, oppressive, or wasteful competition, or for regulating stops, schedules, and character of service, or for other cooperative working arrangements.

Again the test is that of public interest. Thus it appears that the Board exercises a special relationship to the antitrust laws, and that the significance of the Board's authority in making determinations in the public interest is of much consequence. This does not imply that the aviation laws are less zealous of principles of competition than the antitrust laws, where they serve the public interest in this complex. Indeed, in some instances the contrary is true. For example, the general interlocking provisions of section 8 of the Clayton Act27 apply only to corporation directors, whereas the special ones of section 409 of the Federal Aviation Act28 reach not only directors, but officers, and representatives of directors and officers, and members and majority stockholders as well. One of the Board's leading cases con27. Cf. ¢ 409, 72 Stat. 768, 49 U.S.C. 1379, concerning interlocking relationships with provisions on same subject in Clayton Act 18(7), 38 Stat. 732, as amended by 39 Stat. 121, 41 Slat. 626, 45 Stat. 253, 45 Stat. 1536, 49 Stat. 1717, 15 U.S.C. 19. 28. Ibid.

20

"COMPETITION"—REGULATORY CRITERIA APPLIED BY U.S. CAB

struing section 409 will serve to further illustrate. This is the Lehman Brothers case, decided in 1952.29 Lehman Bothers was (and is) a New York partnership, an investment banking firm. Its primary interests were dealings in securities as a member of the stock exchange, management of investment trusts, municipal financing, underwriting utility issues, rendering services through the firm's industrial department, arranging financial details of mergers and consolidations, and investing in securities. Underwriting of security issues constituted a substantial portion of its activities. Among the partners were persons who held directorships in Pan American World Airways, Inc., others in National Airlines, Inc., others in American Export Lines, Inc., others in Consolidated Vultee Aircraft Corporation. The Board instituted the proceeding to determine whether any of the partners who serve as directors or officers of enterprises within the scope of section 409 "are, or may be, representatives of other partners who are directors of air carriers and, if so, whether such interlocking relationships which may exist will be adverse to the public interest." The Board answered both questions in the affirmative. The report of the examiner, Herbert K. Bryan, in part stated as follows: While the record discloses no instance where a Lehman partner has been named a director of a section 409 enterprise for the purpose of representing other partners, or that any partner in acting as a director has failed to exercise his independent judgment, Lehman partners holding directorships in such enterprises in one sense do act on behalf of the firm. Each of the partners involved testified that in the event a company of which he is a director proposes financing he would endeavor to secure the underwriting business for Lehman Brothers so long as ... the firm could do as good a job as any other banking firm 30 One of the primary purposes of section 409(a) of the Act is to avoid the possibility of a director of one company exerting pressure on competing or related companies to stifle competition or impair the ability of that company to contract on the open market for equipment. To conclude that Congress did not intend that section 409(a) should apply to a situation similar to that under consideration herein would tend to defeat the purposes of that section 31

The Board, in affirming the examiner, stated in part as follows: When section 409 uses the term "representative," we are entitled to give that term its ordinary meaning. And, in its ordinary meaning, the term "representative" denotes a person who acts on behalf of another. On this basis alone, we are justified in finding that the Lehman partners here in question are "representatives" within the meaning of section 409. However, we have gone beyond the ordinary meaning of the statutory language, and have explored its basic purposes and have found that our interpretation effectuates the legislative objectives. Thus, our interpretation is in accord both with the literal meaning of the word "representative" in common usage and with the basic Congressional purposes of section 409.32 29. 30. 31. 32.

Lehman Brothers Interlocking Relationships Case, 15 CAB 656 (1952). Ibid., p. 670. Ibid., p. 673. Ibid., p. 658.

21

Section I — Doctrine APPLICABILITY IN INTERNATIONAL MATTERS

Two cases which illustrate the Board's early assessment of the applicability of these sections in international matters are Acquisition of Taca, S.A., by American Export Air.,33 and Trans-continental & W. A.— Ethiopian Agreement.34 In the first of these, a certificated U.S. carrier agreed to purchase all the stock of Taca, S.A., a Panama company which controlled and operated four South and Central American companies engaged in scheduled air services. The agreement was considered under section 408 (the merger section). The applicant contended that the section was inapplicable to persons, not citizens of the United States, engaged in air services in foreign countries. The Board held the phrase set forth in the statute, "any person engaged in any phase of aeronautics," to be broad enough to include all persons so engaged irrespective of nationality or locality, and that the proposed acquisition would be unlawful unless approved. With respect to Taca's subsidiaries the Board said that they were airlines engaged in transportation by air, and although not "air carriers" nor engaged in "air transportation" under the special definition, they were engaged in a phase of aeronautics, and so engaged "otherwise than as air carriers," and were thus within the language of the section. In the second case, an agreement between Transcontinental & Western Air, Inc. and the Ethiopian Government relating to the establishment of Ethiopian Air Lines was considered under sections 408 (the merger section) and 412 (the agreements section). The agreement provided for technical and economic assistance. The Board held the agreement to be within the scope of section 412, for although neither Ethiopian Air Lines nor the Ethiopian Government was an "air carrier" nor a "foreign air carrier," Ethiopian Air Lines was an "other carrier" and thus within the wording of that section. Since the agreement was between TWA and the Government, and the Government was engaged in the business of Ethiopian Air Lines, the Board had jurisdiction. With respect to section 408, TWA contended there was a lack of jurisdiction, in that the Government was not a "person engaged in any phase of aeronautics otherwise than as an air carrier." The Board, however, said that since Ethiopian Air Lines came within the above phrase it was not necessary to find that the Government did so likewise. It will have been noted that none of these sections require the approval of transactions unless United States aeronautical interests are directly involved. It does not follow, however, that the Board would have no duty and no authority with reference to an agreement between foreign air carriers, if such were to have an adverse effect upon the competition which the Board is charged to consider as being in the public interest. By analogy the antitrust laws of the United States were long ago held to 33. Acquisition of Taca, S. A., by American Export Air., 3 CAB 216 (1941). 34. Transcontinental & W. A. — Ethiopian Agreement, 9 CAB 713 (1948).

22

"COMPETITION"--REGULATORY CRITERIA APPLIED BY U.S. CAB

apply to shipping between the United States and foreign countries although the parties were all foreign carriers.36 In such a situation the Board's duty and authority could be involved in a number of ways, among them the permit procedures of section 402. The Board is there, at subsection (b), empowered to issue a permit only if it finds such transportation will be in the public interest. Subsection (e) authorizes the Board to attach such reasonable terms, conditions, or limitations as, in its judgment, the public interest may require. Furthermore, subsection (f) authorizes the Board, after notice and hearing, to alter, modify, suspend, cancel, or revoke a permit whenever it finds such action to be in the public interest.30 In the case of Trans-Canada A. L., Montreal-New York Service,31 in 1950, Trans-Canada had applied for a foreign air carrier permit to engage in air transportation from Montreal to New York. It was contended in opposition that Trans-Canada was a part of a huge transportation monopoly consisting of Canadian National Railways, Canadian Pacific Railway, and Trans-Canada, and that its proposed operations would violate the antitrust laws and the Civil Aeronautics Act. However, the Board found in that case that there was no lack of competition between Trans-Canada and Canadian National, no duplication of traffic personnel, that although intercompany transactions were not conducted at arm's length, all goods and services furnished by one to the other were paid for at market value, and that the record would not support a finding that Trans-Canada's past or prospective actions violated the antitrust laws or the public interest. Enough has been said, I believe, to demonstrate that the effect of the Board's authority in applying the public interest test may be considerable, and that this is true in large measure because, absent Board approval, many of these transactions might be subject to the penalties of the antitrust laws. In effect the Board is provided, by means of withholding, granting, or conditioning approval, with regulatory authority which reaches beyond the superficial merits, or lack thereof, of the particular paper which lies in front of it. This is hardly less true in international transactions than in domestic.S8 35. Thomsen v. Cayser, 243 U.S. 66 (1917). 36. The Board would also appear to have authority in the matter under the provisions of Q 411 of the Federal Aviation Act of 1958. 37, Trans-Canada A. L., Montreal-New York Service, 11 CAB 209, 211 (1950). 38. The President's Statement on International Transportation Policy dated 24 April 1963 includes the following, among other things, which is pertinent to this subject, at p. 1: "Within the legal and regulatory framework in which the system operates, it must be as free from restrictions as possible, whether these be imposed by government or through intercarrier arrangements. Any policy of arbitrarily restricting capacity, dividing markets by carrier agreements, encouraging high rates or curtailing service for which a demand exists, would be harmful to our national interests. Such a policy would not be in accord with our basic attitudes toward private enterprise; it would stunt the growth of air commerce and thus our carriers; it would be contrary to our obligation to the public, to the passenger and shipper. Entrepreneurs of daring and vision launched our air transport industry. We believe that the system should continue to benefit from the irreplaceable stimulus to growth brought by competitive enterprise." At p. 8: .. Neither the interests of a sound transportation system nor of the countries involved are served when a route with little traffic is burdened by a number of carriers greater than is

23

Section I — Doctrine No doubt the most outstanding example of the exercise of this phase of the Board's jurisdiction in international matters relates to the International Air Transport Association, a very large organization of carriers for purposes of the regulation of rates and other dealings between them in international air transportation. This organization has greatly facilitated the development, growth, and health of international commerce. Nevertheless, as its existence and functioning involve agreements among carriers, some of them American, which under the law must meet the scrutiny of the Civil Aeronautics Board, the Board is required to exercise a degree of jurisdiction. Of course, other countries exercise similar jurisdiction. The matter is particularly pertinent in the case of the United States since, although the Federal Aviation Act equipped the Board with precise statutory tools to regulate the level of rates in domestic air tr'ansportation,39 it provided such tools for application in international air transportation,40 but only in cases of discrimination. Nevertheless, the Declaration of Policy of the Act, in addition to the matters already pointed out and among others, requires the Board to consider in the public interest the promotion of adequate, economical, and efficient service by air carriers at reasonable charges 41 What then is to be done if in international transportation the rates are too low to be economical, or too high to be reasonable? An answer is found at section 412 in the Board's authority over intercarrier agreements.42 THE DOCTRINE OF THE LOCAL CARTAGE CASE

Not until 1952 did the Board settle on its present doctrine as to the pertinency of the presence of section 414 in the statute, that is, the antitrust exemption section, to the public interest determinations to be made under sections 408, 409, and 412. It did so in that year in the Local Cartage Agreement Case43 The doctrine is this: Where an agreement has among its significant aspects elements which are plainly repugnant to established antitrust principles, approval should not be granted unless there is a clear showing that the agreement is required by a serious transportation need, or in order to secure important public benefits.44

The Board had, however, reached towards such a doctrine in preceding cases, the latest of these being the Air Freight Tariff Agreement Case, decided in 1951.95 The Board there said: . (M)aintaining a competitive structure which strikes economically justifiable." At p. 12: a balance between monopoly operation and excessive competition, is sound, possible and necessary." 39. Federal Aviation Act of 1958, f 1002(d), 72 Stat. 788, 49 U.S.C. 1482. 40. Federal Aviation Act of 1958, 8 1002(f), 72 Stat. 788, 49 U.S.C. 1482. 41. Federal Aviation Act of 1958, 8 102(c), 72 Stat. 740, 49 U.S.C. 1302. 42. IATA Traffic Conference Resolution, 6 CAB 639 (1946). 43. Local Cartage Agreement Case, 15 CAB 850 (1952). 44. Ibid., p. 853. 45. Air Freight Tariff Agreement Case, 14 CAB 424, 425 (1951).

24

"COMPETITION"—REGULATORY CRITERIA APPLIED BY U.S. CAB

We must also keep in mind that our approval under section 412 confers immunity on the parties to the agreement from the requirements of the antitrust laws, insofar as may be necessary to enable such parties to do anything authorized by such approval. The Supreme Court has indicated that in exercising this type of authority the administrative agency should take into account the policy of the antitrust statutes.46

In the Local Cartage case, the Board had before it for consideration under section 412 an agreement between air carriers not to advance cartage charges to independent truckers who delivered cargo for air shipment at the Chicago, New York, and Newark airports. The independent truckers contended that the agreement was a concerted refusal to deal with them, that it would seriously injure them and restrain competition, and would tend to create a monopoly in the airline cartage agent, Air Cargo, Inc., which was not inhibited by the prohibition. The Board held such, in substance, to be the case. It said, in part: The other basic consideration is that the Board, in determining whether an agreement is adverse to the public interest under section 412 of the Act, cannot ignore the question of whether such an agreement may run counter to the prin46. The Board then cited McLean Trucking Co. v. United States, 321 U.S. 67 (1944). Subsequent court decisions Indicate that the pertinency of McLean is at least doubtful. Although McLean deals with an exemption from the application of the antitrust laws there are statutory differences, particularly in that the policy declaration involved there contains no definition as to the extent competition shall be taken into consideration such as that of the policy declaration at § 102(d) of the Federal Aviation Act. The significance of McLean may then be subject to an infirmity similar to that of Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945) which was pointed out in Pan American World Airways v. United States, 371 U.S. 296, 305 (1963) by Justice Douglas who was the author of both opinions. In the latter case he said: ". . . The Acts charged in this civil suit as antitrust violations are precise ingredients of the Board's authority in granting, qualifying, or denying certificates to air carriers, in modifying, suspending, or revoking them, and in allowing or disallowing affiliations between common carriers and air carriers. The case is therefore quite unlike Georgia v. Pennsylvania R. Co., supra, where a conspiracy among carriers for the fixing of through and joint rates was held to constitute a cause of action under the antitrust laws, in view of the fact that the Interstate Commerce Commission had no power to grant relief against such combinations_" In the early Case of American Export Air., Trans-Atlantic Service, 2 CAB 16, 30 (1940) the Board said: "The provision of this section, directing that the Board consider competition to the extent necessary to assure the sound development of an air transportation system properly adapted to the three-fold needs set out, differentiates the Act from the usual form of public utility regulatory statutes, particularly the Motor Carrier Act" (1935). In the McLean case, the court nevertheless affirmed orders authorizing the consolidation of seven large motor carriers. Among other things it said, p. 84: "Whatever may be the case with respect either to other kinds of transactions by or among carriers or to consolidations of different types of carriers, there can be little doubt that the Commission is not to measure proposals for all-rail or all-motor consolidations by the standards of the anti-trust laws. Congress authorized such consolidations because it recognized that in some circumstances they were appropriate for effectuation of the national transportation policy. It was informed that this policy would be furthered by 'encouraging the organization of stronger units' in the motor carrier industry. And in authorizing those consolidations it did not import the general policies of the anti-trust laws as a measure of their permissibility. It, in terms, relieved participants in appropriate mergers from the requirements of those laws. Section 5(11). In doing so, it presumably took into account the fact that the business affected is subject to strict regulation and supervision, particularly with respect to rates charged the public—an effective safeguard against the evils attending monopoly, at which the Sherman Act is directed. Against this background, no other inference is possible but that, as a factor in determining the propriety of motor-carrier consolidations the preservation of competition among carriers, although still a value, is significant chiefly as it aids in the attainment of the objectives of the national transportation policy."

25

Section 1 — Doctrine ciples and purposes of the antitrust laws. The approval of an agreement under section 412 exempts the agreement from the operation of the antitrust laws by virtue of section 414. While this exemption demonstrates the Board's power to approve agreements which otherwise would violate the antitrust Iaws, it also imposes upon the Board, in determining the effect on the public interest of agreements for which approval is sought, the duty to evaluate such agreements in the light of antitrust policy and principles. Where an agreement has among its significant aspects elements which are plainly repugnant to established antitrust principles, approval should not be granted unless there is a clear showing that the agreement is required by a serious transportation need, or in order to secure important public benefits.

Since 1952 the Board has reiterated the doctrine of the Local Cartage case with much consistency. However, there have been exceptions. One such case is VOLUMAIR Agreement, decided in 1960.47 The Board there considered an agreement among member air carriers of the Air Traffic Conference of America, all of which were route carriers, to undertake a program of concerted activities in the field of domestic commercial charter services. Pursuant to the doctrine of Cartage, VOLUMAIR made the argument that the agreement would serve a serious transportation need and secure important public benefits. Although the Board noted that the activities of the scheduled carriers proposed under the agreement were "clearly those of a combination within the meaning of the antitrust laws" and, in view of the precarious financial condition of the supplemental air carriers, there was a risk that the agreement would result in the virtual control and domination of the domestic charter market to the exclusion of the supplementals,48 it did not predicate its disapproval squarely on the language of the Cartage case but rather on broad public interest grounds.49 A recent case in which the Cartage doctrine was urged, but passed over as unnecessary to decision, is the Visual In-Flight Entertainment case,b0 decided 1 June 1965. However, the Board recognized the doctrine by way of dictum. In that case a series of agreements were presented which would have prohibited members of IATA from offering any type of visual in-flight entertainment in any of their services throughout the world. Interested persons filed comments and the Board heard oral argument. Among other things it was contended in opposition to approval, that the agreements amounted to boycotts of an identifiable group of suppliers of visual in-flight entertainment, that they would eliminate a method of competition among carriers, and that they were contrary to the principles of the antitrust laws. The Board said, in part: The proponents ... contend that such agreements are in the public interest. ... The principal argument ... is that visual in-flight entertainment is not a proper air transportation service but is a wasteful competitive practice which will lead inevitably either to the escalation of present fares or inhibit future fare 47. 48. 49. 50.

VOLUMAIR Agreement, 30 CAB 1007 (1960). Ibid., p. 1009. Ibid., p. 1011. Visual In-Flight Entertainment, CAB Docket 16065 (1965).

26

"COMPETITION"—REGULATORY CRITERIA APPLIED BY U.S. CAB

reduction. They also contend that there is some passenger apathy toward visual in-flight entertainment, that such entertainment is costly to the carrier and to the public, that such entertainment has not in the past, and will not in the future generate any significant amount of new traffic, and that as a result of continuing .. . vast sums of money eventually would be expended with no appreciable benefit resulting. Finally, the proponents argue that, if the agreements are not approved, an open rate situation would continue to exist, and that serious retaliatory measures will be forthcoming from foreign IATA carriers or their respective governments, or both. Such measures would allegedly include the offering of other service amenities, including such giveaways as free champagne and theatre tickets, reductions in fares on non-entertainment flights, and possible punitive action such as the levying of excessive charges for entertainment flights travelling to and from the foreign country. After having fully considered the facts and allegations ... the Board concludes that approval of an absolute ban . .. cannot be justified. Such a prohibition of what appears to be a legitimate passenger service is, in our opinion, inconsistent with the public interest. Significantly, there has been no showing that disapproval will necessarily result in uneconomic competitive practices. There is, possibly a more fundamental ground for disapproving these agreements. All parties have stated that they are contrary to the provisions and principles of the antitrust laws. It is contended on the one hand that these agreements amount to boycotts of an identifiable group of suppliers of visual in-flight entertainment; and on the other, that they would eliminate a method of competition among carriers. We are inclined to believe that there may be merit in such contentions and in such circumstances these agreements should not be approved unless their proponents can make a clear showing that the agreements are required by a serious transportation need, or in order to secure important public benefits.... No such showing has been made on the record before us. However, because we are disapproving these agreements on the other grounds herein discussed, we need not decide the antitrust aspects at this time.51

Despite the dictum it seems doubtful whether the Cartage doctrine could have been applicable here, for In-Flight did not, as did Cartage, involve a question of monopoly or of injury to a competitor.52 IATA Credit Agreements case (1964)53 which was urged to the Board in support of use of the doctrine is likewise distinguishable. In that case the three Traffic Conferences of IATA had filed with the Board identical agreements which stated: 51. CAB Order E-22240, 1 June 1965. 52. The court cases urged upon the Board in In-Flight in support of the antitrust theory are similarly distinguishable. Fashion Guild v. Trade Comm'n., 312 U.S. 457 (1941), involved a combination of manufacturers to withhold their products from retailers who dealt in competitors' merchandise. Northern Pac. R. Co. v. United States, 356 U.S. 1 (1958), involved agreements not to ship over the lines of competitor railroads unless their rates were more favorable. Radiant Burners v. Peoples Gas Co., 364 U.S. 656 (1961), involved a charge of conspiracy among gas suppliers and gas burner manufacturers not to supply gas for use in burners manufactured by a competitor. Klor's v. Broadway-Hale Stores, 359 U.S. 207 (1959), involved a claim of conspiracy between manufacturers, distributors, and retailers to limit the availability of merchandise to a competing retailer. Associated Press v. United States, 326 U.S. 1 (1945), involved a common plan to limit the opportunity of competitors to gain access to a product. 53. IATA Credit Agreements, 30 CAB 1553 (1960).

27

Section 1— Doctrine No Member shall honour a credit card in settlement of a sale of international air transportation other than a U.A.T.P. card or a Member's credit card and no commission shall be payable to an IATA Approved Agent for the sale of international air transportation based on a credit card (other than a U.A.T.P. card or a Member's card).

Not surprisingly, objections were filed by "other" credit card interests. The Board disapproved the agreements, finding them to be in violation of the antitrust laws and that it had not been established that approval was required by a serious transportation need or to secure important public benefits. Obviously, however, this case, like Local Cartage, involved a question of monopoly and of injury to a competitor, factors not present in In-Flight.59 Some doubt has been cast upon the Cartage doctrine by the Supreme Court decision in Pan American World Airways v. United States.b5 It will have been noted that the statutory Declaration of Policy speaks of "competition to the extent necessary" whereas the doctrine says that "approval should not be granted unless ... required." These may not be the same things. The referenced Pan American case was a civil suit brought by the United States under sections 1, 2, and 3 of the Sherman Act charging two major restraints of trade: first, that Pan American and W. R. Grace and Co. had founded Panagra, each owning fifty percent of the stock, under an agreement that Panagra would have exclusive traffic rights on the west coast of South America and PanAm would be free of Panagra's competition in other agreed areas; and second, a conspiracy to monopolize traffic. PanAm was also charged with using its fifty percent control to prevent Panagra from obtaining a route to the United States. This suit had been instituted by the Attorney General at the request of the Civil Aeronautics Board. However, the court was of the opinion that the Board itself held jurisdiction over these matters under its own standards and that section 411 (the unfair practices section), provided a means to deal with them. Accordingly, it remanded the case. The court viewed the acts charged as "precise ingredients of the Board's authority in granting, qualifying, or denying certificates to air carriers, in modifying, suspending, or revoking them, and in allowing or disallowing affiliations between common carriers and air carriers."80 Among other things, the court said: We have said enough to indicate that the words "unfair practices" and "unfair methods of competition" are not limited to precise practices that can readily be catalogued. They take their meaning from the facts of each case and the impact of particular practices on competition and monopoly. 54. Cf. Chicago Board of Trade v. United States, 246 U.S. 231 (1918); American Football League v. National Football League, 205 F. Supp. 60 (1962), af/'d. 323 F.2d 124 (1963); United States v. National Football League, 116 F. Supp. 319 (1953). 55. Pan American World Airways v. United States, 371 U.S. 296 (1963). 56. Ibid., p. 305. See note 46 supra. Cf. Seaboard Airline R. Co. v. United States, 382 U.S. 154 (1965); Trans World Airlines, Inc. v. Hughes. 332 F.2d 602 (1964).

28

"COMPETITION"—REGULATORY CRITERIA APPLIED BY U.S. CAB These words, transferred to the Civil Aeronautics Act, gather meaning from the context of that particular regulatory measure and the type of competitive regime which it visualizes.... That regime has its special standard of the "public interest" as defined by Congress. The standards to be applied by the Board in enforcing the Act are broadly stated in section 2 (now section 102, Federal Aviation Act): The "present and future needs" of our foreign and domestic commerce, regulations that foster "sound economic conditions," the promotion of service free of "unfair or destructive competitive practices," regulations that produce the proper degree of "competition"—each of these is pertinent to the problems arising under section 411. It would be strange, indeed, if a division of territories or an allocation of routes which met the requirements of the "public interest" as defined in section 2 (Sec. 102, Federal Aviation Act) were held to be antitrust violations. It would also be odd to conclude that an affiliation between a common carrier and an air carrier that passed muster under section 408 should run afoul of the antitrust laws. Whether or not transactions of that character meet the standards of competition and monopoly provided by the Act is peculiarly a question for the Board, subject of course to judicial review as provided in 49 U.S.C. section 1486. (Emphasis supplied.) 57

These expressions are fortified by various references in the opinion to the history of the Act, among them the following (see note 46 supra, p. 301) :58 ... Since 1938, the industry has been regulated under a regime designed to change the prior competitive system. As stated in S. Rep. No. 1661, 75th Cong., 3d Sess., p. 2, "Competition among air carriers is being carried to an extreme, which tends to jeopardize the financial status of the air carriers and to jeopardize and render unsafe a transportation service appropriate to the needs of commerce and required in the public interest, in the interests of the Postal Service, and of the national defense."

57. Ibid., p. 307. Cf. United States v. Philadelphia Nat. Bank, 374 U.S. 321, 351 (1963), wherein the court said: "In Pan American, the Court held that because the Civil Aeronautics Board had been given broad powers to enforce the competitive standard clearly delineated by the Civil Aeronautics Act, and to immunize a variety of transactions from the operation of the antitrust laws, the Sherman Act could not be applied to facts composing the precise ingredients of a case subject to the Board's broad regulatory and remedial powers; in contrast, the banking agencies have authority neither to enforct the antitrust laws against mergers, ... nor to grant immunity from those laws." . Drawing upon the anticompetitive spirit of the thirties and the con58. Ibid., p. 301. demnation of 'destructive' or `cutthroat' competition and 'disorderly' or 'chaotic' economic development, the 1938 legislation was prompted in large part by the specter of insolvency and the expressed need to restore credit to a faltering industry." W. K. Jones; see note 11 supra, p. 305 Immediately before 1938 a degree of regulation was exercised by the Interstate Commerce Commission. According to Frederick A. Ballard, commenting on the Act of August 14, 1935 (49 Stat. 1614): "... The ICC was finally given a degree of control over the inauguration of new routes by air mail and contractors. One sentence of Section 15 as amended seemed to authorize the ICC to permit new passenger routes on a showing of convenience and necessity, but Congress practically nullified this constructive step by another sentence in the same section which forbade any new service 'which in any way competes with passenger or express service available upon another airmail route ......Ballard. Federal Regulations of Aviation, 60 Herv. L. Rev. 1235, 1250 (1947).

29

Section 1— Doctrine 408 Attention will now be given to what is known as the first proviso of section 408 (the merger section). The proviso constitutes an exception to the usual public interest tests, or, to put it another way, it is a per se application of the public interest tests. It is applicable to foreign aeronautical interests which come within its jurisdiction, as well as to domestic interests. Section 408 cases are ordinarily very long and complex. They are adversary, require proceedings before an examiner, are hotly contested, accumulate great quantities of evidence, and almost always are reviewed by the Board on briefs and oral argument. If such a case involves foreign air transportation the Board's decision goes to the White House for final consideration by the President. The most controversial are the merger cases. The Board has had quite a number of them. Some have been approved and others denied. Among the recent ones have been the Braniff -Panagra Acquisition Case59 and the Eastern-Mackey Merger Case,60 both involving foreign air transportation, and a merger between Western Air Lines and Pacific Northern Airlines.61 The language of the proviso has greatly perplexed the Board. Where mergers have been disapproved this has been done under the usual public interest grounds rather than the structures of the proviso. There may be significance in this, but the effect has been to leave many questions of interpretation unanswered. The text of the proviso is this: THE FIRST PROVISO OF SECTION

. Provided, That the Board shall not approve any consolidation, merger, purchase, lease, operating contract, or acquisition of control which would result in creating a monopoly or monopolies and thereby restrain competition or jeopardize another air carrier not a party to the consolidation, merger, purchase, lease, operating contract, or acquisition of control... . The proviso should be read in connection with the sentence which precedes it, which is: .. Unless, after such hearing, the Board finds that the consolidation, merger, purchase, lease, operating contract, or acquisition of control will not be consistent with the public interest or that the conditions of this section will not be fulfilled, it shall by order approve such consolidation, merger, purchase, lease, operating contract, or acquisition of control, upon such terms and conditions as it shall find to be just and reasonable and with such modifications as it may prescribe... . This sentence suggests, first, that if a case reaches equipoise on these issues the Board is to approve and, second, that if the transaction in the first instance fails to meet the tests, the Board may condition or modify it. 59. CAB Order E-24297 (19 October 1966) approving merger. 60. CAB Orders E-24427 and E-24428 (22 November 1966) approving merger. 61. CAB Order E-25240 (5 June 1967).

30

"COMPETITION"—REGULATORY CRITERIA APPLIED BY U.S. CAB

In examining the proviso and the preceding sentence it probably should also be borne in mind that the Board has authority to add new services under the certification procedures of section 401, the exemption procedures of section 416, and the permit procedures of section 402. The Board has authority to modify or suspend existing services of domestic carriers under section 401, and of foreign carriers under section 402, and it may have a duty to do so where the services no longer accord with the public convenience and necessity, or with the public interest62 The Ianguage of the proviso has no exact counterpart in the antitrust statutes. It does not, as does the Sherman Act, speak of attempts to monopolize or of combinations or conspiracies to monopolize. Nor is it concerned, like the Clayton Act, with acts which "tend" to create a monopoly. A monopoly must be found. And from that monopoly must flow either a restraint on competition, or jeopardy to another carrier which is not a party to the transaction. The route systems of most of the carriers are complex, interrelated, and involve many markets. It would seem that if the proviso were to be interpreted as permitting only a merger, the effect of which, standing alone, had no adverse impact on competition in any market, then scarcely any merger could ever be approved. To get at its true meaning attention needs to be given to its statutory context and to the state of the law at the time of enactment, which was 1938. In one of the very early merger cases the Board, contemplating unfamiliar ground, appointed Dean Roscoe Pound of the Harvard Law School to act as a special examiner. Dean Pound was of the view that the language of the Declaration of Policy of the Act was the proper guide to the meaning of "competition" as used in the proviso. He put it this way: The proviso in section 408(b) as to the effect in restraining competition and the clause in section 2 (now section 102) defining the policy of the Act should be construed together so as to give 408(b) a meaning consonant with what the statute itself declares to be its purpose.... The statute does not announce a policy of competition at all events and in every possible way. It is competition to the extent necessary to assure the sound development of an air transportation system properly adapted to the needs of commerce, of the postal service, and of the national defense, which is to be regarded... 63

Some of the early railway merger decisions of the Supreme Court laid down the rule that the formation of a combination whereby the power has been acquired to suppress competition between competing and parallel lines of railroad is itself unlawful, although the purpose of the combination may have been to promote commerce, enlarge the volume of interstate traffic, and to benefit the public." 62. Alaska Airlines, Inc. v. C.A.B., 285 F.2d 672 (1960). Cf. Acquisition of Western A. E. by United A. L., 1 CAA 739 (1940). 63. Cf. note 62 supra. 64. Northern Securities Co. v. United States, 193 U.S. 197 (1904).

31

Section 1— Doctrine Such holdings may account for the particular language of the proviso. It would be reasonable to assume that the lawmakers, having devised a detailed regulatory scheme" for an industry which differed in characteristics from the railroads,66 and designed to otherwise remedy the evils of monopolization, might wish to eliminate this particular straightjacket. Therefore they required as indispensable to the bar of the proviso that the prospect of a monopoly must be found, that the monopoly must flow from the merger, and that the monopoly must be the cause of any restraint of competition or jeopardy to another air carrier which might ensue.67 In the American Tobacco Co. caseß8 the Supreme Court had this, among others things, to say which is pertinent to the subject: . The authorities support the view that the material consideration in determining whether a monopoly exists is not ... that competition actually is excluded but that power exists ... to exclude competition when it is desired to do so... .

The important distinction here is that merging air carriers do not usually have the power to exclude competition. That power is lodged by statute in the Civil Aeronautics Board through its control of entry. Ordinarily there are plenty of carriers, ready, willing, and able to fill any deficiency in competitive services. If none be available the Board might not, of course, at least temporarily, be able to exercise its power. The question arises whether, in a merger case where the competitive balance appears to be threatened the Board at the same time adds new services in order to maintain the balance, it could nevertheless be said that a monopoly has been created by the merger and that a restraint on competition has flowed therefrom. This can be taken a step further. The Board has authority to modify or suspend existing services of both domestic6° or foreign70 carriers and, as has been pointed out, it may have a duty to do so where such services no longer accord with the public convenience and necessity, or the public interest. Suppose, then, that the Board should make such a finding in a merger case. That is, suppose in a merger case the Board, in accord with its duties to promote an efficient system and based on properly stated issues, should find some of the services to be no longer economic or in accord with the public interest. This of course might very well be true, 65. A vital difference between air and motor carriage, however, does exist in the Civil Aeronautics Board's authority over service and rates. The CAB can compel the rendering of services, profitable or otherwise and has power to fix maximum as well as minimum rates. As a consequence, there is no room for application of the antitrust laws to the airlines. Enforcement of such legislation would merely impede the regulation of the industry by the CAB. Hale and Hale, Competition or Control VI; Application of Antitrust Laws to Regulated Industries, 111 U.Pa. L. Rev. 46 (1962). 66. Pound took this into account. See note 62 supra. 67. Cf. United A. L.—Western A. E., Interchange of Equipment, 1 CAA 723 (1940); and Northwest Airlines. v. C.A.B., 303 F.2d 395 (1962). 68. American Tobacco Co. v. United States, 328 U.S. 781, 811 (1946). 69. See note 15 supra. 70. Ibid.

32

"COMPETITION"—REGULATORY CRITERIA APPLIED BY U.S. CAB

and the Board should, at that point, and based on such findings, modify, suspend, or eliminate them. Could it then be said that any relevant restraint on competition flowed from the monopoly, or should it be said that it flowed from the Board's order and findings concerning the public convenience and necessity or the public interest? These, and many other questions, remain to be answered 7' CONCLUSION

The Board has sometimes been criticized for inconsistency in application of the principles of competition.72 I can subscribe to no such criticisms and whatever their merit, they are more pertinent to what the Board has said than to what it has done. Undoubtedly, in many instances any inconsistencies have been more apparent than real, for in order to fully appraise them they must ordinarily be related to some very complicated sets of facts and issues. I will not undertake to supply the deficiencies here. It will have been noted that the Declaration of Policy uses the term competition, not as an objective in itself, but as a tool to use to accomplish a purpose; to wit, "the sound development of an air transportation system." Furthermore, the Declaration of Policy adjures the Board as to several specific elements of the public interest (see note 9, supra), including: (a) The encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defence; (b) The regulation of air transportation in such manner as to . .. foster sound economic conditions in, such transportation, and to improve the relations between, and coordinate transportation by, air carriers; (c) The promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices... .

Nor does the Declaration of Policy limit the Board to the specifics in determining the public interest. It uses the words "among other things" and the Board may consider other criteria than those specifically mentioned therein.73 71. Cf. Marine Airways--Alaska Air Transport Consolidation, 3 CAB 315 (1942). 72. "There would seem to be but three readings of section 2(d) (now section 102(d) Federal Aviation Act), in any way meriting consideration; as we shall see, the Board, at various times, has employed them all, and perhaps others as well." Friendly, The Federal Administrative Agencies—The Need for Better Definition of Standards 77 (1962). "Let it be said at the outset that any effort to delineate CAB policy is fraught with danger, simply because the Board is noted for its propensity to alter its attitude frequently and for its ability to obscure the grounds for its action." Barber, Airline Mergers, Monopoly, and the CAB, 28 .I. Air L. & Corn. 189 (1962). 73. Pan American-Grace Airways, Inc. v. C.A.B., 342 F.2d 905, 908 (1965).

33

Section 1— Doctrine Among the public interest elements, competition has undoubtedly been given major emphasis. This arises from its background and from the multiplicity of sections in the Act which are directed to competition and which contribute to make up the scheme. However, in view of the several elements to be taken into consideration, and which vary in number and magnitude with the particulars of individual cases, it is not surprising that there have been seeming inconsistencies in expressions as to the weight to be given to any of them in determining the public interest and the public convenience and necessity. Similar decisions can, of course, be reached through different courses of reasoning. It seems to me that if an appraisal be made of the record of the Board on the basis of results it will be found that most of the discrepancies will disappear, that the Board has in fact maintained the policy of the Act with reasonable consistency, and that it has been remarkably successful. We are all familiar with the extraordinary expansion of air transportation in and about the United States over the past thirty years. There are few, I am sure, who would fail to attribute a fair share in the chain of causation to the Board's execution of that policy.

34

Section II Surveys

Chapter 3

Brazil Recent Developments in Aviation Law* In the years 1966 and 1967, two laws have altered fundamentally the basis of civil aviation in Brazil. The first law (Dec. Lei 200/67) deals with the governmental structure of civil aviation, mainly in the field of commercial air transportation. Within the framework of the administrative reform, it established that the Air Department no longer should deal exclusively with air policy formulation. Questions involving the granting of authorization for air services (domestic or international), subsidies, crew salaries, and rates also will be examined by the National Council for Transportation, a consultative body within the structure of the Department of Transportation. The aim of this change is to provide better integration of air transportation into the general system of transportation within and between Brazil and other countries. At the same time, the Air Department, until now the only body responsible for civil aviation matters, has been reorganized and better structured to attend the needs of civil aviation. The Directorate of Civil Aviation has been transformed into the Department of Civil Aviation, and in its new form is more rationally organized to accomodate the several aspects of its activities (Dec. 60.521/67). The Government, too, after years of study by the Sociedade Brasileira de Direito Aeronåutico e do Espago and the Air Department, has promulgated the new Brazilian Air Code, which from November 1966 has replaced the old text dating from 1938. The new document is the Dec. Lei 32, 18 November 1966, already altered in minor points by the Dec. Lei 234, 28 February 1967. The main emphasis of the new Air Code, as far as international air transportation is concerned, is to require a more objective compliance with the international obligations Brazil has accepted in the fields of public and private air law. Its provisions have not changed Brazilian air policy adopted and followed by the Government in recent years. On the contrary, it may be understood as accepting such policies and incorporating them in its text. The innovations of the new law which are of more general international interest are as follows: a) the Brazilian air sovereignty is now defined to cover the air space above its territory and waters under its jurisdiction (Article 2); b) the definition of aircraft is not as broad as before since balloons are excluded (Article 8) ; • This note kindly contributed by Sr. A. A. de Souza, Brazilian Department of Civil Aviation.

37

Section 11 — Surveys c) the Aircraft Registry is given more importance, permitting inter alia the possibility of registration of aircraft owned by foreigners residing in Brazil (Article 14); d) the treatment of aircraft mortgages is more reasonable, with the registry of partial or total mortgage of an aircraft or of its parts, even of aircraft under construction, being permitted (Article. 18 et seq.); e) concerning the arrest of aircraft, the new Code exempts aircraft used in public service, as well as those parts necessary to the flight (Article 26); f) aerodromes are distinguished from airports: the first is considered in the broad meaning, and airport is understood to be a public aerodrome with facilities and installations for the support of aircraft operations, and for the embarkation and disembarkation of passengers or cargo (Article 43) ; g) with respect to air traffic, the freedom of traffic over Brazilian territory is confirmed, as long as the pertinent principles established in the conventions and international acts signed by Brazil are observed (Article 59); h) the exploitation of air services by foreign carriers in Brazil will be subject to authorization in accordance with the conventions and agreements signed by Brazil, or with the terms of unilateral permissions granted (Article 69) ; i) concerning the limitation of liabilities, apart from the observance of the international conventions for international services, the domestic limitation of liability for damages to third parties on the surface is now established (Article 119) ; j) in the case of collisions between aircraft, the principle of the limitation of liability is established (Article 129) ; k) the rights to legal recourse in matters dealing with air navigation are extinguished in two years but this period is extended by a year if lack of knowledge of the harm can be proven; the right to sue aircraft manufacturers is set at five years (Article 150). As a consequence of the new basic law, several regulations are under review. The more important deal with the granting of concessions or grants and authorizations for the exploitation of air services, domestic or international, by Brazilian air carriers, either scheduled or nonscheduled. The provisions of such a regulation should not modify the treatment given by Brazil, in accordance with the bilateral agreements in force or with the terms of unilateral concessions made in some specific cases, to foreign air carriers operating in the country. In the same spirit, new regulations have been issued dealing with the operation of nonscheduled services in the domestic field (air taxis) and the specialized air services (air photogrammetry, air spraying, advertising, and so on) have been regulated (Portarias 17/GM5/1967 and 71/GM5/1967). Based on the new Code, a law has been issued recently (Dec. Lei 270/1967) dealing with air navigation and airport charges. According 38

RECENT DEVELOPMENTS IN AVIATION LAW

to the text, an Airport Commission and Airport Fund have been established and new rules devised to determine new taxes to be charged for the use of airport facilities in general. The nature and quantification of such taxes have been defined with a view to the last pertinent recommendations of ICAO, and should be in force from January 1968. Concerning airport regulation, two new rules exist, one dealing with the restriction of building in the safety zone around airports (Dec. Lei 60.797/1967), and one dealing with conditions for the uniformity of national airports (Portaria 514/GM4/1966). Two new regulations deal with the work priorities of the crew members (Dec. Lei 18/1966 and 15/1967). Fully compatible with international regulations, the rules waive some of the excessive work requirements of the former law. As a consequence, a new law dealing with rest requirements of crew members also has been issued (Dec. Lei 158/1967). The Facilitation Committee in Brazil continues its work, and the deviations from Annex 9 of ICAO are being cancelled progressively through the modification of non-aeronautical, but pertinent, legislation; in particular, those dealing with the entry into Brazil of crew, passengers, and cargo, and with the elimination of superfluous administrative procedures. At present, Brazil maintains only thirteen minor deviations from Annex 9, and cancellation of these deviations is being pursued.

39

Chapter 4

Canada

National Transportation Act, 1967* An Act to define and implement a national transportation policy for Canada, called hereafter the National Transportation Act, 1966-67 Stats. Can. C. 69, was assented to on 9 February 1967 except for Part I, Sections 80 to 90 and 94, which came into force on 19 September 1967 (SOR 67/482). The Act applies to transport by railway (Railway Act), transport by air (Aeronautics Act), transport by water (Transport Act), transport by a commodity pipeline connecting a province with any other or others of the provinces or extending beyond the limits of a province, and transport for hire or reward by a motor vehicle undertaking connecting a province with any other or others of the provinces or extending beyond the limits of a province. The purpose of the Act is to establish an economic, efficient, and adequate transportation system making the best use of all available modes of transportation at the lowest total cost; the Act is essential to protect the interests of the users of transportation and to maintain the economic well-being and growth of Canada. These objectives are most likely to be achieved when all modes of transport are able to compete under conditions ensuring that, having due regard to national policy and to legal and constitutional requirements, a) regulation of all modes of transport will not be of such a nature as to restrict the ability of any mode of transport to compete freely with any other modes of transport; b) each mode of transport, so far as practicable, bears a fair proportion of the real costs of the resources, facilities, and services provided that mode of transport at public expense; c) each mode of transport, so far as practicable, receives compensation for the resources, facilities, and services that it is required to provide as an imposed public duty; and d) each mode of transport, so far as practicable, carries traffic to or from any point in Canada under tolls and conditions that do not constitute (i) an unfair disadvantage in respect of any such traffic beyond that disadvantage inherent in the location or volume of the traffic, the • This note was kindly contributed by Mr. W. O. Federyk, Legal Branch, Air Transport Committee, Ottawa.

40

NATIONAL TRANSPORTATION ACT,

1967

scale of operation connected therewith, or the type of traffic or service involved, or (ii) an undue obstacle to the interchange of commodities between points in Canada or unreasonable discouragement to the development of primary or secondary industries or to export trade in or from any region of Canada or to the movement of commodities through Canadian ports. The Act provides for the establishment of a Canadian Transport Commission which shall consist of not more than seventeen members appointed by the Governor in Council. The Commission is a Court record. One of the Commissioners shall be appointed President of the Commission and two Commissioners shall be appointed Vice-Presidents, one of the Vice-Presidents being a barrister or advocate of at least ten (10) years' standing at the bar of any province of Canada. This Act further enumerates the powers and duties of the Committee. The Commission shall establish a Railway Transport Committee, Air Transport Committee, Water Transport Committee, Motor Vehicle Transport Committee, Commodity Pipeline Transport Committee, and such other Committees as the Commission deems expedient. Each Committee shall consist of not less than three (3) Commissioners, exclusive of the President who shall be ex officio a member of every such Committee. In respect of each such Committee, the Commission shall appoint a Commissioner to be Chairman of the Committee, who shall be the Chief Executive Officer of the Committee and shall in the absence or disability of both the President and the Vice-President, who is a barrister or advocate of at least ten (10) years' standing, preside at all sittings of the Committee and exercise all the powers of President. The Chairman of the Air Transport Board shall, during his tenure of office as a Member of the Canadian Transport Commission, if he is not appointed to hold office as President or Vice-President of that Commission, be appointed to and hold office of Chairman of the Air Transport Committee. Section 5 stipulates that except as otherwise provided by this Act,' the provisions of the Railway Act 1952 R.S. c. 234 relating to the sittings of the Commission shall apply in the case of every enquiry, complaint, application, or other proceeding under the National Transportation Act, the Aeronautics Act, or the Transport Act, or any other Act imposing a duty or function on the Committee. For greater certainty and avoidance of doubt, sections 12, 13, 18 to 21, 30, 32 to 41, and 43 to 75 apply mutatis mutandis in respect to any proceedings before the Commission, the provisions of the Railway Act to prevail in event of any conflict be1. See Appendix, however, for a description of the applicable sections

41

of

that Act.

Section 11— Surveys tween the provisions of the said Act and the Aeronautics Act or the Transport Act. Section 93 of the said Act amends section 6(1) (e) of the Aeronautics Act 1952 R.S. c. 2, as amended, to define "hire or reward" as meaning "any payment, consideration, gratuity or benefit directly or indirectly charged, demanded, received or collected by any person for the use of an aircraft." APPENDIX

The provisions of the Railway Act 1952 R.S. Can. c. 234, as amended, that apply by virtue of section 5 of the National Transportation Act deal with a) the quorum for every hearing, who enumerate the powers of a single Commission and establish who is to be the presiding officer; b) the sittings and conduct of business of the Board (Commission) and with the use of experts to assist in an advisory capacity; the requirement for an annual report to Governor in Council, the report to be laid before Parliament; c) general jurisdiction and powers: The Board having full jurisdiction to inquire into, hear, and determine any application wherein a complaint arises of failure to do any act, matter, or thing required by this act, subordinate legislation, Governor in Council, the Minister, the Board or any lawful authority or requesting the Board to make any order or give any direction, leave, or sanction that it is by law authorized to do; The Board is empowered to issue mandatory or restraining orders; The Board has all the powers of a superior Court in respect to witnesses, documents, orders, entry and inspection of property necessary to exercise its jurisdiction; The Board has power to make orders and regulations which will have application to apply to all cases or to any particular case or class of cases; jurisdiction as to agreements where it is complained by or on behalf of the Crown or any municipal or other corporation or any other person that a company has violated or committed a breach of an agreement between the complainant and the company; The Board has the power to act upon its own motion; the Board may of its own motion or upon the application of any party or at the request of Governor in Council state a case in writing for the opinion of the Supreme Court of Canada upon any question that in the opinion of the Board is a question of law or of the jurisdiction of the Board; The Board in any question of fact is not concluded by the finding or judgment of any other Court, such evidence being prima facie only, any such finding within the jurisdiction of the Board being 42

NATIONAL TRANSPORTATION ACT,

1967

binding and conclusive. The Board may not be deprived of jurisdiction to hear and determine the same questions of fact that are pending in any suit in any other Court. The Board may specify the time when an order may come into force, the duration of such order and whether it is to come into force upon contingency or terms as well as making interim orders granting relief, make interim ex parte orders; such decisions or orders being able to be made a rule, order or decree of the Exchequer Court or any Superior Court of any province in Canada following the usual practice and procedure of the Court or where the Secretary makes a certified copy of such decision or order, endorsed by the Chief Commissioner, sealed with the official seal of the Board, forwarded to the Registrar and published in the Canada Gazette.

43

Chapter 5

German Democratic Republic* Introduction After fascist Germany collapsed in 1945, the Allied Powers of the Anti-Hitler Coalition forbade German nationals to carry on air transport. Under its treaty with the Soviet Union of 20 September 1955, the German Democratic Republic (GDR) received complete and exclusive sovereignty in its internal and external affairs and began to build up her own civil air transport. In 1956 the first scheduled national and international air services were established. Ten years later, in 1966, the GDR airline Interflug, a limited liability company (Gesellschaft mit beschrankter Haftung) established under German law, carried 543,501 passengers and 11,736 tons of goods and mail. In the same year the aircraft of Interflug flew 7,307,900 million kilometres, operated scheduled international services into 14 countries, and non-scheduled services into 24 countries. Administration and Legislation The Ministry of Transport directs the civil aviation of the GDR. Its Department of Civil Aviation (Hauptverwaltung der zivilen Luftfahrt) comprises the following sections: Research and Development; International Affairs; Air Navigation Facilities; Control of Flights; Personnel; Airports; Aircraft; Air Traffic Economy; Planning and Investment; Tariffs. The Department of Civil Aviation has authority over Interflug. The central airport, Berlin-Schonefeld, is open to international flights; the airports of Barth (Baltic Sea), Dresden, Erfurt, Karl-Marx-Stadt, and Leipzig are open to domestic flights. The Test Board for Aircraft and Equipment (Prüfstelle für Luftfahrtgeräte) is responsible for, and supervises, air safety. Originally, air navigation and transport in the GDR was governed by the old Air Law of 1936. It soon became evident that this law was not capable of adapting to the socialist development of the GDR. Hence, the new Civil Aviation Law of 31 July 1963 (Official Gazette 113) (1963), was passed, which is based on the latest air laws and international agreements; e.g., the air law of the USSR of 1961 and the air law of Poland of 1962. The new Civil Aviation Law deals with sovereignty in space, general conditions of air transport, planning of civil aviation, air transport, flying clubs, aviation personnel, aircraft, airports, air traffic, civil liability, This note was kindly contributed by Professor Dr. G. Reintanz, Halle, German Democratic Republic.

44

GERMAN DEMOCRATIC REPUBLIC

offences, and education. Its provisions are supplemented and amplified by the Air Navigation Order of 31 July 1963 (II Official Gazette 579 [1963]). The Air Space In accordance with international law, Article 1 of the Civil Aviation Law provides as follows: The German Democratic Republic has unrestricted sovereignty in the air space over its territory. This comprises the air space over land and waters, including the territorial waters of the German Democratic Republic.

The territorial waters of the GDR extend over three nautical miles. No ceiling has been fixed for the air space; it has not been marked off from outer space. No State has yet determined the upper limit of air space; indeed, under present conditions it can only be established through international agreements. Air traffic operated by the Western Powers from and to West Berlin, which dates back to the early years of the occupation and has no legal foundation today, is tolerated by the GDR as a temporary practice. Conforming to the principle of peaceful coexistence between States, the GDR maintains a smooth and peaceful traffic to and from West Berlin. However, the air routes across its territory are misused, in a way highly endangering peace, for "cold war" purposes and for systematic subversive activities against the GDR. It is in the interest of peace in Germany and in Europe, as the Chairman of the State Council of the GDR, Walter Ulbricht, pointed out before the People's Chamber on 31 July 1963, that "an end is put to the misuse of the air routes which, being a remnant of the war, is incompatible with international law and ... in accordance with the rules of international law, air traffic over the air routes of the GDR to West Berlin is placed on a regular contractual basis." Air Navigation Air navigation in the GDR is regulated by the Air Navigation Order of 1963 in conformity with international standards. In order to ensure air safety, air traffic is co-ordinated between the competent civil and military authorities. Therefore on certain air routes which are reserved for civil aviation, airplanes must fly at prescribed altitudes. Civil airplanes are required to pass the frontier at prescribed points, prior approval by the Department of Civil Aviation being obtained. Moreover, Article 20 of the Prohibited Area Order of 21 June 1963 permits the establishment of prohibited areas. The Aircraft Operators At present, Interflug is the only authorized operating agency. It has the right to operate air services and to engage in aerial work; e.g., spray45

Section li — Surveys ing, operating chemical and biological flights for agricultural purposes, aerial photography, radio surveying, and so on. The Gesellschaft fur Sport and Technik (Society for Sports and Technical Sports) is in charge of air sports; see Article 16 of the Civil Aviation Law. Moreover, socialist enterprises, government departments, scientific institutions, and mass organizations may operate aircraft in connection with their respective functions. However, individuals are not allowed to operate aircraft; see Articles 4 and 16 of the Civil Aviation Law. The operator of the aircraft is responsible for the registration and the airworthiness of the aircraft, and qualification of the crew. He is liable for damage caused to persons and property through the operation of the aircraft. The Aviation Personnel Article 18 of the Civil Aviation Law distinguishes between the following categories of aviation personnel. a) FLIGHT CREW. The crew is comprised of one or more pilots, the technical personnel (flight engineer, aircraft wireless operator, air navigator, and so on) and any other person employed on board the aircraft, e.g., stewardesses. These persons must have special licences which are granted under Article 20 of the Civil Aviation Law if their qualifications correspond with the training and examination regulations. For the time being, the issuing of these licences is still governed by the Temporary Order Regarding Licences for Civil Aviation Personnel of Propulsion Aircraft, of 1 July 1960. Under this Order licences are granted, following a theoretical and a practical examination, to amateur pilots and amateur helicopter pilots; professional pilots, classes I—IV; professional helicopter pilots; air navigators; flight engineers; aircraft wireless operators, classes I—HI; and stewards and stewardesses. Continuous medical supervision of these persons and of glider pilots and parachutists is regulated by the Directive on Aero-Medical Examinations in Civil Aviation of 21 January 1960. Article 8 of the Air Navigation Order specifies that flight crews must act in such a way "that persons and property are not endangered or damaged and that safety and order of air navigation are always ensured." b) OTHER AVIATION PERSONNEL. This category comprises all persons whose duties are directly connected with aircraft operations. They must be licensed for the exercise of their duties. The Aircraft Article 24 of the Civil Aviation Law defines aircraft as "any device which derives its lifting force in the air space from aerodynamic forces, or whose area of operation is mainly the earth's atmosphere." Thus, the following are considered to be aircraft within the meaning of the Civil Aviation Law: airplanes, gliders, airships, balloons, other flying objects, 46

GERMAN DEMOCRATIC REPUBLIC

and jumping-parachutes. But a person who flies a toy kite is not operating an aircraft. However, if he lets his kite soar up on a string of more than 100 m., he must have a permit issued by the Ministry of Transport; see Article 10 of the Air Navigation Order. Moreover, the flying of any type of kite is prohibited within a radius of three (3) km. from an airfield. Civil aircraft must have an airworthiness certificate and be registered in the aviation register. The airworthiness of civil aircraft is determined by the Test Board for Aircraft and Equipment. Thereupon, an application for the airworthiness certificate can be filed with the Department of Civil Aviation. If the application is granted, the aircraft is entered into the aviation register of the German Democratic Republic and thereby is granted GDR nationality. The registration is certified by a registration and licence card which specifies the nationality and registration marks of the aircraft. The nationality and registration marks, consisting of the letters DM followed by three more letters, must be shown on the fuselage and the wings; in addition, the flag of the Republic is shown on the tail unit. The nationality and registration marks are also the call signals. This regulation goes back to the 1932 International Telecommunication Convention of Madrid. The registration marks of gliders consist of four figures. Balloons receive as registration marks a name suggested by the applicant. The registration and licence card, together with the airworthiness certificates, the licence for the operation of the radio installations and so on, must be carried on board the aircraft. The Airfields

According to Article 27 of the Civil Aviation Law, civil airfields are any expanses of land and water, including the take-off and landing installations used for aircraft operations. The establishment and operation of airfields is subject to licensing. An airfield is surrounded by a safety zone (having a radius of fifteen (15) km. from the centre of the airfield) where restrictions on construction work may be imposed for reasons of air safety, and an airfield zone, determined for each airfield, where test flights are permitted. Air Safety

In spite of the great technical progress, aviation accidents are not yet completely unavoidable. Article 33 of the Civil Aviation Law provides that flights shall be prepared and carried out according to the air traffic regulations in such a manner that a maximum degree of safety is ensured. Regular briefings and medical supervision of the personnel, checks on aviation equipment, air traffic services, and meteorological offices are intended to increase air safety. In case of accidents and emergency landings the competent administration must provide every necessary help; see Article 43. Incidents occurr47

Section 11 — Surveys ing in the GDR air space and involving civil aircraft must be reported, examined, and appraised; see Article 44. The Liability of the Air Carrier and Operator The Civil Aviation Law deals with this matter in Article 48 et seq. which, for the first time, regulates the material liability in one branch of the socialist transport system in a comprehensive way. The said articles are applicable to domestic flights only, while international flights are governed mostly by the Warsaw Convention of 1929, and the amendments thereto, where applicable. However, the principles of liability under the domestic law and the Warsaw Convention are identical. Moreover, the "General Conditions of Air Transport" mentioned in Article 12 of the Civil Aviation Law must be taken into account. The carrier's liability for death of, or injury to, passengers is limited to 70,000 Marks of the German State Bank (250,000 gold francs) per passenger. In respect of goods and luggage, the carrier is liable up to 70 Marks (250 gold francs) per kilogram. The carrier's liability is limited to 1,400 Marks (5,000 gold francs) per passenger for injury to hand luggage and other small objects of which the passenger takes charge himself. The carrier's liability is not limited to the above-mentioned maximum sums if the damages are caused by him deliberately or by his gross negligence (grobe Fahrlassigkeit). On the other hand, the carrier is not liable if the injured person has caused the damage intentionally or by his gross negligence. The operator's liability for injuries or damages caused to third parties (for instance, persons on the ground) is not limited. Bilateral Agreements As of 31 July 1967, the German Democratic Republic had concluded air transport agreements with fourteen States (Albania, Algeria, Bulgaria, Czechoslovakia, Guinea, Hungary, Iraq, Mali, Poland, Rumania, Syria, UAR, USSR, Yugoslavia) and acceded to the Warsaw Convention of 1929 and The Hague Protocol of 1955. Her accession to other important multilateral aviation agreements is rendered difficult by the fact that the West German Federal Republic maintains that she alone is entitled to represent Germany. It is clear that this standpoint on the existence of the GDR as a sovereign State contravenes international law and political and socio-economic realities in Germany.

48

Chapter 6

India

Civil Aviation Law in India* The Indian aviation law, like that of many other countries, derives primarily from the two traditional sources: statutory enactments, and subordinate legislation. The statutes do not actually state the practical details of the law but delegate heavily to the executive branch of the Government. Most of the laws are therefore to be found from the notifications issued from time to time by the Central Government. With the above two sources, a third method of great significance in the common law countries is the development of law through judicial decisions. In this respect, Indian jurisprudence lags far behind, as the number of aviation cases contended in Indian courts is very small. Under the provisions of the Indian constitution,' the Parliament has full and exclusive power to make laws with respect to any of the matters concerning "airways, aircraft and air navigation, provision of aerodromes; regulation and organization of air traffic and aerodromes, provision for aeronautical education and training and regulation of such education and training provided by States and other agencies"2 and "carriage of passengers and goods by air."3 There is thus no federalprovincial problem as to jurisdiction for exercising authority on civil aviation matters in India, a problem faced by other Commonwealth countries. The problem arose in Australia.4 In Canada, the British North America Act adopted in 1867 was, of course, altogether silent on the question of civil aviation. The thorny problem was solved by the judicial committee of the Privy Council, which asserted that civil aviation was a matter of national interest and importance and, as such, the Dominion of Canada had a broad and comprehensive authority over its control.5 In this paper it is proposed to examine the Indian law relating to the right to fly, air transport services, and carriage by air. An attempt will also be made to analyze the administrative aspects of the law. • This note was kindly contributed by P. K. Menon, B.Com.(Madras); LL.B.(Bombay); LL.M.(New York); LL.M.(McGill). 1. See Indian Constitution, Article 246, para. 1. 2. Ibid., Seventh Schedule List 1, item 29. 3. Ibid., item 30. 4. See The King v. Burgess ex Parte Henry, 55 CLR 608(1936); Australian National Airways Pty. Ltd. v. The Commonwealth 71 CLR 29 (1945). 5. See Attorney General for Canada v. Attorney General for Ontario, et al. I DLR (1932) 58.

49

Section I1— Surveys A. LAW REGULATING THE RIGHT TO FLY

The Indian Aircraft Rules, 1937, which have been amended from time to time and which incorporate the provisions of the Chicago Convention on International Civil Aviation, 1944, largely contain regulations regarding the right to fly. With certain general exceptions,6 the Rules prima facie apply to all aircraft registered in India irrespective of whether they are in India or abroad. They do not apply to aircraft registered in other countries whose regulations are based on at least the minimum standards established under the Chicago Convention and ICAO decisions. Since the Indian aviation regulations are much the same as they are in most other countries, we will examine here briefly only certain important provisions, such as (1) nationality and registration; (2) documents, certificates, licences, and equipment; (3) prohibition on carriage; (4) health regulations; and (5) arrival and departure of aircraft. 1. Nationality and Registration Like sea-going vessels, aircraft have a nationality.? The principle of nationality is very important as it confers "a claim to control and jurisdiction over them [aircraft] wherever they may be ... and the claim embraces economic, political and financial considerations of the highest importance."8 Nationality is determined by the place of registration. Closely following the Chicago Convention° and its predecessor the Paris Convention,10 the Indian Rules state that "an aircraft shall be deemed to possess the nationality of the State on the register of which it is entered."11 This leads us to the question of registration which is an important factor in identfying and establishing responsibility. In terms of Article 19 of the Chicago Convention, the conditions for the registration of aircraft are exclusively within the competence of the municipal law of the contracting State.12 In India only the Ceneral Government is authorized to register aircraft and to grant certificates of registration. An aircraft may be registered there in either of the following two categories: Category A—Where the aircraft is wholly owned either i) by citizens of India, or ii) by a company or corporation registered and having its principal place of business within India and the Chairman and at least two-thirds of the directors of which are citizens of India; 6. The general exceptions are (a) any aircraft belonging to or exclusively employed in the naval, military, or air forces of India; and (b) any aircraft exempted by the Central Government. See Indian Aircraft Rules, 1937, Rule 160, and the Indian Aircraft Act, 1934, 9 3 and 19. (The word "Indian" was omitted by the Indian Aircraft Amendment Act, 1960.) 7. See Cooper, The Legal Status of Aircraft (mimeo, 1949) p. 9. 8. Jennings, International Civil Aviation and the Law, 22 British Yearbook of International Law 207(1945). 9. See Chicago Convention, 7 December 1944, Article 17. 10. See Paris Convention 1919, Article 6. 11. Indian Aircraft Rules, 1937, Rule 2. 12. See Paris Convention as amended by Protocol of 15 June 1929, Article 7.

50

CIVIL AVIATION LAW IN INDIA

Category B—Where the aircraft is wholly owned either i) by persons resident in or carrying on business in India who are not citizens of India, or ii) by a company or corporation registered elsewhere than in India and carrying on business in India.13

It may therefore be noted that aviation regulations in India relate only to the effective control and operation of air services, and that they do not impose restriction with regard to ownership so that foreign nationals or foreign corporations may validly register aircraft in India, subject to their satisfying conditions mentioned in Category B, above. This is a departure from the practice of most other countries which require, among other things, that the aircraft be owned by their own nationals or by a national company as a sine qua non for registration. However, the Indian Rules deny registration in the following circumstances: (1) if the aircraft is already validly registered in another country;14 (2) if the aircraft could be registered more suitably in some other country; and (3) if it is not expedient in the public interest that the aircraft be registered in India. The register of aircraft is open to inspection by the public, subject to such conditions as may be specified by the Director General of Civil Aviation (DGCA).15 In accordance with Article 20 of the Chicago Convention, the Indian Rules prohibit flight by any aircraft unless it bears the appropriate nationality and registration marks" and the name and residence of the owner affixed thereto or painted thereon. 2. Documents, Certificates, Licences, and Equipment Documents. The documents to be carried by an aircraft registered in India vary depending on the nature of the flight. A public air transport engaged in international navigation should carry the following valid documents: a) the certificate of registration; b) the certificate of airworthiness; c) the journey log book; d) the appropriate licences for each member of the crew; e) Iicence for radio apparatus if equipped with such an apparatus, and also the telecommunication log book in case radio telephony is not used; f) a list showing the name and nationality of each member of the crew; g) if the aircraft carries passengers, a list showing their names, nationality, places of embarkation, immediate and ultimate destination; 13. Indian Aircraft Rules, 1937, Rule 30(2). 14. This corresponds to Article 18 of the Chicago Convention and Article 8 of the Paris Convention which prohibit dual rcgistration of aircraft. 15. See Indian Aircraft Rules, 1937, Rule 36. 16. The nationality mark of the aircraft registered in India is the capital letters VT in roman character; the registration mark is a group of three capital letters in roman character assigned by the Director General of Civil Aviation.

51

Section II — Surveys h) if the aircraft carries goods, air consignment notes and manifests in respect thereof showing a description of the goods, the names and addresses of the consignor and the consignee, and the immediate and ultimate destination of the goods; i) a stores list showing the nature and quantity of all stores carried; j) working copies of the aircraft, engine, and variable pitch propeller log books; k) the certificate of safety; and 1) a load sheet relating to the particular flight of the aircraft. When not engaged in international navigation, the aircraft, in addition to the above requirements, should also carry working copies of the radio apparatus log book. Aircraft engaged in aerial work are required to carry the first five documents, and in the case of a private aircraft only the documents mentioned in (a), (c), (d), and (e), above, are to be carried. An aircraft which does not leave the vicinity of its starting place, and which returns to its starting place without landing elsewhere, need not carry any documents except the licences for the crew. Every foreign aircraft while flying in or over India should carry on board the first ten documents mentioned above, issued or rendered valid by the State in which the aircraft is registered. Certificates and Licences. In accordance with the Chicago Convention and its Annexes, every aircraft should be provided with a certificate of airworthiness'' and its operating crew must carry licences of competency issued by the State of registry. With the solitary exception of a trainee pilot who is learning to fly an aircraft of an all-up weight not exceeding 1500 kgs., a flight crew member of an aircraft registered in India must hold a licence which entitles him to act in the capacity in which he intends to fly.'g The flight crew members of foreign-registered aircraft must be licensed in accordance with the regulations in force in the State of registry. Equipment. Every aircraft when flying should be equipped with the instruments as specified in Section B of Schedule II of the Indian Aircraft Rules, 1937. The scales of equipment vary according to the type and purpose of the aircraft and also according to the conditions of flight. For example, every public transport aircraft with a capacity of ten or more passengers including the crew, when used in international air navigation or on a regular air transport service operating in India, should be equipped with radio telegraph apparatus. This rule may be 17. A certificate of airworthiness is issued in India by the Central Government in respect of any flying machine which complies with minimum standards of airworthiness prescribed in the United Kingdom, in respect of design, materials, methods of construction, and equipment. In respect of foreign aircraft, the Government may accept a valid certificate of airworthiness issued by the duly competent authority in the respective foreign country, provided that the conditions on which the certificate of airworthiness is granted are substantially equivalent to Indian conditions for the same. 18. See Indian Aircraft Rules, 1937, Part V and Schedule II.

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waived when radio telegraph organizations are lacking in a particular region, and the employment of radio telegraph in any case would serve no useful purpose.1° 3. Prohibition on Carriage The Indian Rules prohibit the carrying of certain goods,2° mails,21 and photographic apparatus22 in any aircraft flying in or over India. The Rules also prohibit aircraft entering India from any place outside India unless all persons on board possess valid passports as required under the Indian Passport Act, 1920 (XXXIV of 1920). 4. Health Regulations The regulations to prevent the threat to public health through any infectious or contagious diseases by air traffic have been incorporated in the Indian Aircraft (Public Health) Rules, 1954. The health rules apply to all aircraft arriving in or departing from India. Special provisions have been made relating to quarantinable diseases such as yellow fever, plague, cholera, smallpox, typhus, relapsing fever, and other infectious diseases. An aircraft, however, will not be prevented from discharging or loading cargo or stores, or taking fuels or water on account of an infectious disease except in case of an emergency constituting a grave danger to public health.23 5. Arrival and Departure of Aircraft The Rules relating to the arrival and departure of aircraft are governed by Part IX of the Indian Aircraft Rules, 1920, the only part of those Rules not yet superseded. Every aircraft entering in or leaving from India must make its first landing at, or departure from, a customs aerodrome24 unless it is compelled to land elsewhere by accident, stress of weather, or other unavoidable cause. In case of the latter contingency, the person in charge of the aircraft should report to the Aerodrome Officer if the place of landing is a Government aerodrome. If the place of landing is not a Government aerodrome, he should report to a customs collector or a police officer. If the locality happens to be without any customs collector or police officer, a full statement of the action taken should be made in his journey log books, and the occurrence must be reported to the customs collector and the Aerodrome Officer at the nearest customs aerodrome. 19. 20. 21. 22. 23. 24.

Ibid., Rule 64. Ibid., Rule S. Ibid., Rule 10. Ibid., Rule 13A. See Indian Aircraft (Public Health), Rules, 1954, Rule 33. See Indian Aircraft Rules, 1920, Rule 53(a).

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Section 11— Surveys B. LAW GOVERNING AIR TRANSPORT SERVICES

1. Scheduled International Air Services By virtue of Rule 134(2) of the Indian Aircraft Rules, 1937, the Central Government may permit a foreign air transport undertaking to operate service from, to, or across India in accordance with the terms of any agreement concluded between the Government of India and the government of the country of that foreign airline. These agreements are signed by the authorized agents of the Government of India."-5 The ratification of the bilateral air agreement is not essential by Indian law but as a matter of practice all the newly concluded agreements contain a ratification clause. This is more or less a uniform policy of the Government of India. Wherever an agreement contains a ratification clause, it comes into force only after ratification unless otherwise provided in the agreement. So far, India has concluded bilateral agreements with twenty-three countries." These agreements do not always necessarily conform to the Bermuda pattern. Predetermination of traffic requirements and the restriction of the fifth freedom rights to a percentage of total traffic carried as the third and fourth freedom traffic constitute the basic principles held by India. It may be useful to review some of the more important provisions dealt with in these agreements. Routes. In the exchange of routes, the nature of relationship is reciprocal and generally the Indian bilateral agreements grant "beyond" rights to the carriers of the other party and obtain similar rights for Indian carriers abroad. These beyond rights might be broad in certain cases without specifying the beyond points;27 in other cases they may be restricted in the sense that the beyond rights are granted after specified intermediate points"8 or only to certain specified points beyond the country concluding the agreement." Even when India is not in a position to make immediate use of all the beyond rights that may be granted to it under the agreement, it insists on having them incorporated in the agreement, for such incorporation is considered desirable for future expansion of its international transportation network. The beyond rights obtained abroad, however, are not in all cases unconditional. For ex25. If the agreement is concluded at New Delhi, it is signed by the Minister in charge of the Department of Civil Aviation or by the highest civil servant of that Department; if concluded abroad, the accredited representative of India to that country on instructions from the Government of India signs the agreement. 26. India has concluded bilateral agreements with Afghanistan, Australia, Ceylon, Czechoslovakia, Egypt, France, Hungary, Iran, Iraq, Italy, Japan, Lebanon, Nepal, Netherlands, Pakistan, Philippines, Sweden, Switzerland, Thailand, United Kingdom, USA, USSR, and West Germany. 27. See Agreement between India and Japan, 26 November 1955; Agreement between India and Ceylon, 1 December 1948. 28. See Agreement between India and Egypt, 14 June 1953; Agreement between India and Iraq, 27 June 1955; Agreement between India and Thailand, 12 June 1956; Agreement between India and Lebanon, 13 March 1958; Agreement between India and the United States of America, 3 February 1956. 29. See Exchange of Notes dated 13 November 1962 between India and the Soviet Union amending the air services agreement of 2 June 1958; Agreement between India and Czechoslovakia, 1 September 1960.

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ample, the Exchange of Notes of 13 November 1962 between India and the Soviet Union amending the Air Services Agreement of 2 June 1958 allows extension of Air India's service to points outside the USSR "but without the right to pick up or set down passengers, cargo and mail between the new points and the USSR." Capacity and Frequency. The Bermuda principles arose out of a compromise between the protectionist theory of the United Kingdom and the open competition policy of the United States. No issue, however, was made of predetermining the capacity of the total traffic carried. Instead, the airlines were free to operate services at the frequency and the capacity that they considered justified, provided they complied with the general provisions of the agreement, such as "transport facilities available bear a close relationship to the requirement," "fair and equal opportunities for the carriers of the two nations to operate on any route," and so on. It was also recognized that the operation of trunk routes necessitated carriers having rights to carry traffic on intermediate sectors. This right was allowed to them only if the total capacity operated was reasonably related to the end-to-end potential of the route. The Bermuda system also provided for an ex post facto review of capacity if one party felt that its interests were unduly affected by the airline capacity of the other. As a rule, India does not allow liberal interpretation of the Bermuda principles with regard to capacity. Basically, it relies, and insists on, the principle of predetermination rather than that of accepting the ex post facto review clause. In rare cases, due to the interplay of bargaining power and political considerations, it has had to deviate from its firm stand; but this is an exception.30 A standard capacity clause of Indian bilateral agreement would read as follows: The capacity, frequency, type of aircraft and the nature of air service such as transiting through or terminating in the territory of the other Contracting Party, operated by the designated airline of either Contracting Party on the specified air route, shall be agreed in the first instance between the designated airlines and shall be effective only upon the approval of the aeronautical authorities 31

Any subsequent increase in the capacity or frequency of the airline must also be agreed upon in advance between the designated airlines. This would be subject to the approval of the aeronautical authorities on the basis of the estimated requirements of traffic between the territories of the Parties and such other traffic as is to be jointly agreed and deter30. In 1964, after eight years of its agreement with the United States based on the principle of predetermination, India had to succumb to the cherished American desire for the Bermuda philosophy. This was the time when Air India wanted to operate daily flights throughout the year between London and New York. See diplomatic exchange of Notes between India and USA dated 26 October 1964 amending and implementing the agreement of 3 February 1956 and replacing the related exchange of Notes of the same date. 31. See Agreement between India and Czechoslovakia, 9 September 1960, Article IV; Agreement between India and Italy, 16 July 1959, Article IV; Agreement between India and Soviet Union, 2 June 1958, Article V; Agreement between India and Netherlands, 24 February 1951, Article IV.

55

Section II — Surveys mined. Pending such an agreement the capacity and frequency entitlements already in force would prevail. India's great caution in the matter of capacity and frequency is caused by a genuine fear that once a liberal treatment is accorded to a foreign airline with enormous economic resources, it might result in impairing the economic development of Indian airlines which are still in the process of growth. 2. Scheduled Domestic Air Services Before 1946, an Indian operator was not required to obtain a licence for operating an air transport service in India. The Indian Aircraft Rules in force then related entirely to technical requirements. As the traffic possibilities were comparatively small and the number of airlines entrepreneurs was strictly limited, the system worked well. Such a laissezfaire policy was conducive to the development of domestic air transport at that time. But the position had substantially changed by the end of World War II. General improvements in the transportation system were accompanied by increased governmental regulatory measures. The Aircraft Act was amended. Under the amended rules, effective 1 October 1946, no scheduled air transport service could be operated in India without a licence issued by the Air Transport Licensing Authority set up for that purpose. While granting the licence, the Board took into consideration the following factors: a. the proper development of air transport services in accordance with the needs of the public, b. the potential traffic on particular routes, and c. the adequacy or otherwise of the financial and technical resources of the applicant for satisfactory operation of aircraft.32

Under Rule 141 of the Indian Aircraft Rules, 1937, the then-existing airlines automatically obtained provisional licences over the routes that they already operated. This was similar to the application of the "grandfather" clause of the Civil Aeronautics Act of 193833 by which the Civil Aeronautics Board was required, on application, to issue the certificate of public convenience and necessity to the carriers that were engaged in air transportation at the time that the Act was enacted in the United States. With the introduction of licensing, a large number of companies were floated and these started competing among themselves. Wasteful competition with all its classic adverse effects loomed large until the early fifties, when the Government of India nationalized the airlines. Since nationalization, in effect from 1 August 1953, two corporations, Air India and Indian Airlines and their "associates,"34 enjoy a virtual 32. Government of India, Report of the Air Transport Enquiry Committee 11(1950). 33. See United States, Civil Aeronautics Act, 1938, § 401(e)(i). 34. An associate is any subsidiary of the corporation or any person with whom the corporation has made agreements, with the approval of the central Government, to provide air transport service on behalf of or in association with the corporation. See Air Corporation Act, 1953, § 2, clause iii and § 7, §82.

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monopoly in operating scheduled air transport services in India. All the licences issued previously were invalidated.85 The Air Corporations (Amendment) Act, 1962, has somewhat relaxed the national aviation policy in this regard. The original Act was amended to the effect that private operators may be allowed to operate scheduled air transport services not provided by either of the corporations or their "associates," as long as they have permission of the Government and subject to such conditions and terms as the Government determines.36 By the Indian Aircraft (Fourth Amendment) Rules, 196531 the DGCA may grant permission to operate scheduled air transport service to either a) a citizen of India, or b) a company or a body corporate provided that (i) it is registered and has its principal place of business within India; (ii) the Chairman and at least two-thirds of its Directors are citizens of India; and (iii) its substantial ownership and effective control is vested in Indian nationals. In arriving at a decision whether to grant a permit, the DGCA will consider the following factors as spelled out in the Indian Aircraft Rules:88 i) whether having regard to the applicant's experience and financial resources and his ability to provide satisfactory equipment, organization and staffing arrangements, and having regard also to any contravention in respect of aircraft operated by him of the provisions of the Aircraft Act 1934(22 of 1934) and the rules made thereunder, the applicant is competent and a fit and proper person to operate aircraft on scheduled air transport services; ii) the provisions made or proposed to be made against any liability in respect of loss or damage to persons or property which may be incurred in connection with the aircraft operated by the applicant; iii) the existing or potential need or demand for the scheduled air transport service applied for; iv) in the case of any scheduled air transport service proposed, the adequacy of any other air transport service already authorized under rules 134 or under the Air Corporations Act, 1953(27 of 1953); v) the extent to which any scheduled air transport service proposed would be likely to result in wasteful duplication of or in material diversion of traffic from, any air transport service which is being or is about to be provided under a permission issued under rule 134 or under the Air Corporations Act, 1953 (27 or 1953); 35. Ibid., § 19. 36. Ibid., amended § 18, clause (e); see also Indian Aircraft (Fourth Amendment) Rules, 1965. 37. Sec Indian Aircraft (Fourth Amendment) Rules, 1965, Rule 134, Subrule 1 and Schedule Xl. 38. Indian Aircraft Rules, 1937, Schedule XI, § 8, para. 2.

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Section II — Surveys vi) any capital or other expenditure reasonably incurred or any financial commitment or commercial agreement reasonably entered into, in connection with the operation of aircraft on air transport service by any person (including the applicant); vii) if the tariffs for the proposed scheduled air transport service are reasonable; and viii) any objections or representations made in accordance with the provisions of this Schedule or any other law in force.

In addition to the above eight factors which the DGCA "shall consider in particular," he may at any time require the applicant to submit any other information which he considers necessary for processing the application.S9 The maximum period for which the permit, once issued, is valid is five years.90 3. Non-scheduled International Air Services The Chicago Convention of 1944 makes a distinction between the non-scheduled air transport services not engaged for remuneration or hire, and those engaged for remuneration or hire in the carriage of traffic. By Article 5, paragraph 1, of the Convention, so far as the former category is concerned, each Contracting State agrees that all aircraft of the other Contracting States in non-scheduled flights are granted the following three rights subject to the qualifications specified thereof: (1) right to enter and make final stop for non-traffic purposes; (2) right to enter and fly over non-stop; and (3) right to enter and fly over and stop for non-traffic purposes on a transit flight. These rights, however, are not absolute. The practice of States is inconsistent and haphazard.41 As far as India's attitude is concerned, only seventy-two hours prior notice, along with certain flight information, is required to be given to the Aerodrome Officer or the DGCA.92 The aircraft, immediately upon entry into India and without a prior landing elsewhere, must of course be flown to and landed at the specified airport.43 With regard to the second category, namely non-scheduled flights engaged for remuneration or hire, the aircraft have "merely the privilege of taking on or discharging passengers, cargo or mail."94 The grantor State has, however, the right "to impose such regulations, conditions or limitations as it may consider desirable."45 Even though the ICAO Council has stressed that the impositions should not be exercised in 39. Ibid., para. 3. 40. Ibid., 1 9. 41. See Cheng, The Law of International Air Transport 195 (1962). 42. The information required is (a) the route to be flown; (b) the date of proposed flight; (c) the type of aircraft; (d) the nationality and registration marks of the aircraft; (e) the call sign of the aircraft; (1) the description of the radio equipment carried; (g) the name of the Commander of the aircraft; (h) the name, address, and nationality of operator of the aircraft; (i) the number of crew and also of passengers, if any, as well as general description of goods carried; and (j) such other information as may be required by the DGCA. 43. See Government of India, Notice to Airmen, No. 22 of 1962, p. 3. 44. Chicago Convention, Article 5, para. 2. 45. Ibid.

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such a way as to render the operation of this important form of air transport impossible or non-effective,46 most of the Contracting States insist47 that prior permission be obtained from them for these nonscheduled flights as they may, on occasion, seriously interfere with the scheduled services. In conformity with Article 7 of the Chicago Convention, the Indian Rules would not allow such aircraft "to pick up at any place in India any load to be disembarked at any other place in India."96 Prior permission must be obtained from the DGCA for the picking up or setting down, in India, of traffic destined for or coming from a place outside India. Apart from this, the following additional conditions have also been imposed by the Indian Government for picking up traffic from India to any place outside India: a) a "no objection" certificate should be obtained from the Indian airlines;49 b) the charter or hire of the whole or part of space on the aircraft must have been arranged, engaged, and booked through Indian Airlines Corporation and/or Air India; c) traffic may be picked up in India only at one of the specified places, namely Bombay or Delhi for the West, Calcutta for the East, Madras or Tiruchirapalli for the South, and Patna, Varanasi, Delhi, or Calcutta for Nepal. 4. Non-scheduled Domestic Air Services Under the third proviso to Rule 134 of the Indian Aircraft Rules, 1937, the Central Government alone has the power to allow nonscheduled air transport services, subject, however, to such terms and conditions as it may think fit to impose in each case separately. For this, the DGCA to whom the Central Government has delegated the necessary authority, issues permits. The permit is granted for a certain specified period, generally limited to three years. In addition to complying with the Indian Aircraft Rules, 1937, and with all other rules in force, the operator has to observe the conditions as stated in the permit. Among the important conditions are:50 a) the operator is not permitted to advertise the services in any manner whatsoever; b) no place shall be used for landing or departure other than the duly licenced aerodromes; 44. See ICAO Doc. 7278-C/841, 10 May 1952. 47. See Shawcross and Beaumont, Air Law 201 (3rd cd. 1966). 48. See supra, note 43, p. 3. 49. The certificate should be obtained from Indian Airlines Corporation if the traffic is for neighbouring countries to which Indian Airlines Corporation operates scheduled services, and from Mr India if the traffic is for countries to which IAC does not operate scheduled services. If Air India or Indian Airlines Corporation is willing to undertake the carriage of the traffic within a reasonable time, permission will not be granted by the DGCA. 50. See Government of India, Report of the Air Transport Enquiry Committee 151(1950).

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Section II — Surveys c) the operator should submit to the DGCA a schedule of rates and other charges for chartering different types of aircraft; d) prior permission of the DGCA or the Controller of Aerodromes should be obtained in respect of each individual flight operated if a landing is to be made at any point other than the aerodrome of departure. Before granting permission, the authorities in India would make sure that the rights of scheduled operators in regular services are protected. Only if the scheduled operator is unable to meet the requirements of the public for the transport of passengers and goods on routes or between points already served by them is permission granted for a non-scheduled operator. Besides the two nationalized air corporations, nine operators now hold permits for the operation of non-scheduled air services in India.51 C. LAW RELATING TO CARRIAGE BY AIR

1. International Carriage by Air As far as international carriage by air is concerned, the Indian Carriage by Air Act, 1934, which was enacted by the Indian legislature and which came into force 18 February 1935, gives effect to the provisions of the Warsaw Convention. Section 2 of the Act states that The rules contained in the First Schedule, being the provisions of the Convention (Warsaw) relating to the rights and liabilities of carriers, consignors, consignees and other persons, shall, subject to the provisions of this Act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage.

The Indian jurisprudence on the subject is neither abundant nor varied because the comparatively slow development of air transport in India has raised only very few cases. The Indian Act closely followed the English Carriage by Air Act, 1932, with very similar provisions except for a few modifications to make the Act suitable to Indian conditions. Since independence, with the intense development of Indian industry and commerce, even though state planning and government control permeate almost every sphere of commercial and industrial life, the basic law which has gradually assimilated the English law for over a century has not been modified to any appreciable extent.52 In India, the liability for civil wrong (the law of torts) "continues to be the same as English law except where this was departed from by the Indian judges as being not applicable to Indian conditions."53 It is obvious, therefore, that English decisions are very often used in interpreting the Indian Act. 51. See Government of India. Ministry of Transport and Aviation, Annual Report 19651966. p. 7. 52. See Da Silva, Commercial Law in India, in Some Aspects of Indian Law Today 51.63 (British Institute of International and Comparative Law, 1954). 53. Deshpandc, Common Law Liability in India, ibid. p. 25.

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2. India and The Hague Protocol The Warsaw Convention of 1929 was the first step in standardizing important aspects of the obligations and rights of, and between, air carriers and passengers and shippers in international air transportation. But all was not well; dissatisfaction with some of its provisions began to be voiced shortly after it came into force. CITEJAJ4 and its sucessor, the Legal Committee of the International Civil Aviation Organization, after examining the Convention carefully, proposed revision of certain of its provisions. Representatives of forty-four States met at The Hague in September 1955 to consider the proposals to revise the Warsaw Convention. As a result, a Protocol amending the Convention was agreed upon and signed by twenty-seven States.55 The main amendments suggested by the Protocol relate to (1) simplification of documentation requirements; (2) increase in the limit of liability of air carrier in respect of each passenger; (3) treatment of the court costs and other expenses of litigation; (4) principles of liability; (5) redefinition of wilful misconduct; and (6) limitation of independent liability of servants or agents.G6 Even though India was a participant at The Hague Conference and signed the Protocol, it has not yet ratified it. The main reason for its not being a party to The Hague Protocol is the radical change in the limits of liability as prescribed in Article 22, paragraph 1: a one hundred per cent increase of the 1929 limits. India was not even prepared to "accept an increase amounting to 60% more than the old limit,"51 as was proposed by the Legal Committee of ICAO at Rio de Janeiro in September 1953.J8 India remained firm in its views that any substantial increase in the limits would not be conducive to the development of air transport. The value of the gold francs had kept pace with the increase in the cost of living. Therefore India believed that "it was a stabilising factor between the higher cost of living and the limited liability in terms of gold francs."51 54. CITEJA (Comit6 International Technique d'Experts Juridiqucs Aeriens) is the working and drafting committee composed of lawyers appointed by the International Private Air Law Congress held in Paris, 1925. The functions of this body were taken over by the Legal Committee of the International Civil Aviation Organization in 1947. 55. See I Shawcross and Beaumont, Air Law 336 (3rd ed. 1966). 56. For a detailed discussion of The Hague Protocol, see Beaumont, The Warsaw Convention of 1929 as amended by the Protocol signed at the Hague on September 28, 1955, 22 J. Air L. & Comm. 414(1955); Calkins, Grand Canyon, Warsaw and the Hague Protocol, 23 J. Air L. & Comm. 253(1956); Reiber, Ratification of the Hague Protocol: its Relation to the Uniform International Carrier Liability Law achieved by the Warsaw Convention, 23 J. Air L. & Comm. 272(1956); New York Bar Association, Report on the Warsaw Convention as amended by the Hague Protocol, 26 J. Air L. & Comm. 255(1959); Forrest, Carriage by Air: The Hague Protocol, 10 ICLQ 726(1961). 57. Indian Delegate (D. S. Bhatti), Minutes of 14th Meeting, 15 September 1955, 1 ICAO Doc 7686-LC/140 p. 166. 58. See Ibid., Vol. II, pp. 76-8l. 59. See supra, note 57, p. 167.

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Section II — Surveys 3. Domestic Carriage by Air By section 4 of the Indian Carriage by Air Act, 1934, the Central Government is empowered to apply the rules contained in the First Schedule of that Act, namely the provision of the Warsaw Convention, with or without modifications to all carriage by air not being international. In the exercise of the above power, the Central Government in December 1963 issued a notification60 containing rules for the application of the Indian Carriage by Air Act, 1934, to carriage by air which is not international. These rules came into effect 1 March 1964. The expression "carriage by air not being international" has been defined to mean "any carriage in which according to the intention of the parties the place of departure and the place of destination are both situated in India and there is no agreed stopping place outside India."6' The following types of carriage, however, are not governed by these rules:622 a) carriage by air in any aircraft belonging to, or exclusively employed for the purpose of, armed forces of the Union; b) carriage by air performed by the Government, whether Central or State; c) carriage of mails; d) carriage of persons by air for the purpose of training such persons; e) carriage by aircraft belonging to or operated by the Civil Aviation Training Centre of the Government of India, or a club whose main purpose is to impart training in flying or gliding, whether such aircraft is engaged in carrying persons for purposes of training or otherwise; f) carriage of goods or persons performed for the purpose of dropping goods from an aircraft; g) carriage of employees of the carrier when they are carried for the purpose of performing any duties assigned to them by the carrier or the aircraft. Several other provisions contained in the notification relating to the carriage of passengers, luggage, or cargo are the same as those in the Indian Carriage by Air Act, 1934. We may now enquire into those provisions which differ from those of the 1934 Act. Documents of Carriage. The provisions relating to the existence and contents of the documents of carriage in the Indian Carriage by Air Act, 1934, are not applicable to domestic carriage by air. The carrier is thus not obliged to deliver either a passenger or luggage ticket. Even if issued, it is not required to contain the provisions which are mandatory and specified as in the case of international carriage. Its effect is that in a 60. The rules contained In the notification have statutory effect (hereinafter cited as 1963 Notification) . 61. 1963 Notification, Rule 1(3), First Schedule. 62. Ibid., Rule 2, First Schedule.

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contract of domestic carriage, irrespective of the issuance of the ticket, the carrier may still advantageously avail itself of the limited form of liability as contained in the rules thereof. Air Consignment Note. In domestic carriage, the air consignment note "is a mere informal document."G3 Apparently, the rules are relaxed in favor of the carrier. In accordance with Rule 5 of the First Schedule of the Government of India's 1963 notification, the consignor has no right to require the carrier to accept the air consignment note. The obligation to make out the air consignment note in three original parts with the requisite particulars has been dropped. It is now open to the carrier to set out such particulars as he thinks necessary. The carrier's right to require the consignor to make out separate consignment notes where there is more than one package has, however, been maintained. Liability of the Carrier. As to damage sustained in the event of death or bodily injury suffered by a passenger, the rules applicable to domestic carriage by air make a distinction between (1) death of a passenger or bodily injury resulting in a permanent disablement and (2) bodily injury resulting in a temporary disablement. In the first case the liability of the carrier for each passenger is the fixed sum of Rs 42,00064 if the passenger is twelve or more years of age, and Rs 21,000 if the passenger is under twelve years on the date of the accident.66 In the event of bodily injury suffered by a passenger which results in a temporary disablement entirely preventing the passenger from attending to his usual business the liability is limited to a sum calculated at the rate of Rs 40 per day for every day during which he continues to be so disabled, or a sum of Rs 8,000, whichever is less a0 The rules do not provide for any special contract by which a carrier and his passenger may choose to agree upon a higher limit of liability than that contained in the Indian Carriage by Air Act, 1934. In addition, the carrier is denied the defense available in the case of international carriage of passengers under Article 20, paragraph 1, of the Warsaw Convention. In respect of liability occasioned by delay in the carriage of passengers, luggage, or goods, the carrier will be responsible for any loss or damage only if he has in the contract of carriage agreed to accept liability arising out of such delay and to the extent so agreed.87 D. ADMINISTRATION OF LAW RELATING TO CIVIL AVIATION

The Ceneral Government is responsible for the administration of law relating to civil aviation in India. In order to regulate the allocation of 63. McNair, The Law of The Air (3rd ed. 1964), p. 192. 64. Rs 42,000 is almost equivalent to 125,000 francs, the limit fixed in accordance with the Warsaw Conventon. 65. See Rule 22(1), supra, note 61. 66. Ibid., Rule 22(1A). 67. Ibid., Rule 19.

63

Section 11— Surveys Government business and its convenient, efficient, and speedy transaction, rules of business have been framed under Article 77(3) of the Indian Constitution. The President makes the allocation of "business transaction" on the advice of the Prime Minister, and by assigning a Ministry or a part of a Ministry or more than one Ministry to the charge of a Minister. On formation of the new Council of Ministers in March 1967, after the fourth General Election in India, the Department of Aviation has come under the Ministry of Tourism and Civil Aviation; the Minister in charge holds cabinet rank.68 The Department of Aviation has jurisdiction over the following matters: 1. 2. 3. 4. 5. 6. 7.

Meteorological organization; Aircraft and air navigation; provision of aerodromes; Regulation and organization of air traffic and of aerodromes; Beacons and other provisions for the safety of aircraft; Carriage of passengers and goods by air; Corporations established under the Air Corporations Act, 1953; Offences against laws with respect to any of the matters specified herein; 8. Implementation of treaties and agreements relating to any of the matters specified herein. While the Minister is mainly responsible for the formulation of civil aviation policy, the execution of that policy, as well as the day-to-day administration, is carried out principally by the DGCA, though technically speaking he is second to the Secretary of the Department of Aviation, the highest civil servant in that Department. The officers of the Department are empowered in varying degree to execute the decisions of the Government; it is their responsibility to co-ordinate the activities of the Department with Government policy, including financial and general administration policy and rules. The above subjects are administered by the Department of Aviation through several subordinate organizations headed by the officers as follows: 1. Department of Aviation—Secretary 2. Civil Aviation Department—Director General of Civil Aviation 3. Meteorological Department—Director General of Observatories 4. Air India—Chairman and General Manager 5. Indian Airlines Corporation—Chairman and General Manager. These organizations have a separate corporate existence, each enjoying complete technical autonomy and each responsible to the Government through the Department of Aviation. The functions, powers, and duties of the Department of Aviation may be broadly classified into three: (1) legislative, (2) administrative, and (3) judicial. 68. See New York Times, 14 March 1967, p. 8, col. 2.

64

CIVIL AVIATION LAW IN INDIA

1. Legislative Functions The growth of rule-making powers in India has been rapid. Because of the great scientific and technological accomplishments in the area of transportation and communication, the exercise of legislative powers has been a matter of fact, not only in emergency circumstances, but also in normal times. The sub-legislative powers have not only been given to the Department of Civil Aviation but also to the nationalized air corporations. No doubt the delegated legislation exceeds in quantity the amount of direct legislation. Once the Parliament has performed its essential duties of laying down the policies, it leaves the making of detailed regulations to the executive branch of the Government. In framing these regulations, the only restraint upon the Department is that the regulations should not be ultra vires the parent Act. The principal functions and powers exercised by the Department are derived from the Aircraft Act, 1934, the Indian Carriage by Air Act, 1934, and the Air Corporations Act, 1953. These powers are exercised by means of rules, orders, directions, and regulations by publishing them in the Official Gazette as prescribed in the statutes. 2. Administrative Functions The administrative powers under the Aircraft Act, 1934, and other statutes have mostly been delegated by the Central Government to the DGCA and his subordinate officials in the Department of Civil Aviation. The sub-delegation does not rest upon any specific enactement, but on long-established practice and the general rule of practicability. While performing administrative duties and functions, the authorized officers exercise powers by means of the ordinary routine of official practice, that is, by oral and written instructions of a formal or informal nature, such as are necessary to ensure that the major decisions of the Government are properly authenticated. 3. Judicial Functions The most important judicial function of the Department of Civil Aviation is the investigation of accidents. Section 7 of the Aircraft Act, 1934 empowers the Central Government to make rules for investigation of accidents. Its authority extends to any aircraft involved in an accident in or over India and to aircraft registered in India, wherever they may be. The rules framed by the Government under section 7 of the Aircraft Act form Part X of the Indian Aircraft Rules, 1937. These rules have since been revised in order to bring them into conformity with Annex 13 to the Chicago Convention relating to aircraft accidents enquiry. 65

Section 11 — Surveys CONCLUSION

Since the very beginning, India has been a party to the important international air law conventions. Therefore Indian aviation law has grown coextensively with these conventions, and it is much the same as in most other countries. A great deal of law in regard to civil aviation in the industrially developed countries is concerned in fact with the economic regulation of the air transport industry. But in India, until very recently, aviation law was mainly concerned with technical and safety aspects; economic considerations of air transport were largely neglected. Immediately after independence, the basic law was not modified to any great extent; it was only given a new directive and purpose. Eventually, as a result of the increased stress on economic advancement and the acceptance of the political philosophy of direct State participation in the development process, India enacted the nationalization legislation in 1953 and subjected the airlines to a significant degree of governmental control. Since then, the civil aviation infrastructure has remained almost static.

66

Chapter 7

United States of America A. IMPACT OF THE DEPARTMENT OF TRANSPORTATION ACT ON AIR TRANSPORTATION*

A new executive department in the United States Government, the Department of Transportation, was established by the Department of Transportation Act of 15 October 1966 (80 Stat. 931; 49 U.S.C. 1651 note) which became effective 15 April 1967.1 The new statute states in part: ... The Congress ... finds that the establishment of a Department of Transportation is necessary in the public interest and to assure the coordinated, effective administration of the transportation programs of the Federal Government; to facilitate the development and improvement of coordinated transportation service . . .; to encourage cooperation of Federal, State, and local governments, carriers, labor, and other interested parties toward the achievement of national transportation objectives; to stimulate technological advances in transportation; to provide general leadership in the identification and solution of transportation problems; and to develop and recommend to the President and the Congress for approval national transportation policies and programs to accomplish these objectives with full and appropriate consideration of the needs of the public, users, carriers, industry, labor, and the national defense.

The important transfers to the new Department which affect air transportation are as follows: 1. The office of the Administrator of the Federal Aviation Agency with all laws administered by that Agency; 2. Those functions of the Civil Aeronautics Board relating to aircraft accident investigation, and review of denials, suspensions, or revocations of air safety certificates. The Federal Aviation Agency, now Federal Aviation Administration, maintains, as a unit of the Department, substantially the same organization and functions as before. Those functions transferred from the Civil Aeronautics Board were assigned to a newly created National Transportation Safety Board which is an entity within the Department, but with its own statutory responsibilities and executive authority. Its duties are not limited to aircraft safety, but extend to other forms of transportation as well. It is a bipartisan agency composed of five members appointed by the President with the advice and consent of the Senate. The President designates the Chairman, who is the chief executive and administrator of the Board. • This note was kindly contributed by Judge Whitney Gillilland, Member of the Civil Aeronautics Board, Washington, D.C. 1. For extracts of that Act, see Yearbook of Air and Space Law, 1966, p. 413.

67

Section 1I — Surveys The Civil Aeronautics Board continues to be an independent regulatory agency outside of the Department, and aside from air safety matters its functions are substantially unaffected. However, the Secretary of the Department, whose duties require him to exercise leadership in transportation matters, is made by the Act an advisor to the President and to the Congress and may, where appropriate, appear before the regulatory agencies. B. AIR TRANSPORT DEVELOPMENTS AND ACTIVITIES OF THE CIVIL AERONAUTICS BOARD IN 1967*

Introduction Revenue passenger-miles for the domestic trunkline carriers increased by 13 percent in fiscal year 1967 over 1966, to 62 billion passenger-miles. Revenues, approximating $4 billion for the first time, were up 10 percent. Operating expenses rose 14 percent. A result was that net income dropped to $222 million, providing an 8.1-percent return on investment. The local service carriers registered, for their part, a 28-percent increase in passenger-miles and a 19-percent increase in revenues in fiscal year 1967 over 1966. Net income declined $8 million, however. The subsidy bill for local service continued its downward trend; a $7.3 million reduction was realized for the entire industry in 1967 from 1966. On the international scene, a record 11.3 million international air passenger arrivals and departures (excludes United States-Canada air travel and certain other categories of travel) was recorded in the United States in fiscal year 1967, as compared with 9.8 million in the previous fiscal year, to provide a year-overyear increase of 1.6 million or 15.9 percent. In the North Atlantic air passenger market, traffic increased by 11 percent in fiscal year 1967, as compared to 16.9 percent for the previous fiscal year. The latest year growth figure may be still termed spectacular, given the overall dimensions of the Atlantic market. It is singly the leading and most important international air passenger market in the world. On December 31, 1966, the certificated route carriers, including domestic and international air carriers, had 2,082 aircraft of all types available for service. This compares with a total of 1,954 aircraft on December 31, 1965. The inventory figures comprised turbojet, turboprop, and piston aircraft, fixedwing and rotary. As of December 31, 1966, a total of 743 aircraft were on order. During the fiscal year, three mergers were approved by the Board, and consummated. Pan American-Grace Airways, Inc. (Panagra), with routes in South America, was absorbed by Braniff Airways, Inc. Mackey Air Lines, with Florida and offshore operations, was merged with Eastern Air Lines, Inc. Pacific Northern Airlines, Inc., an Alaskan carrier, was merged into Western Airlines, Inc. Extensive route awards were made providing for new services between major cities in the Pacific Northwest and Dallas, Kansas City, Houston, New Orleans, and St. Louis. Elsewhere, the Board initiated action investigating the need for additional competition and service to certain areas of the Nation. Among still other route and carrier actions, it renewed the New York-Florida authority of Northeast. • Extracts from Civil Aeronautics Board, Reports to Congress, Fiscal Year 1967, U.S. Government Printing Office, Washington, D.C.

68

UNITED STATES OF AMERICA

In fiscal year 1967, the CAB gave approval to the domestic carriers to implement additional promotional fares and to extend others into the next fiscal year. Such fares serve to widen the market and to encourage air travel. They serve, in turn, to generate demand for aircraft of all types, and support items and capabilities, with the associated economic and military benefits for the Nation at large. Reduced air freight rates were introduced for both domestic and international movement. Additional all-cargo flights were put into operation by U.S. carriers to handle a growing volume of air freight business. Revenues generated by freight movement remain small compared to those generated by passenger movement. The volume of air freight is expanding rapidly, however. The rapid expansion of the air transport industry, and its market, also has introduced problems. The Board is fully cognizant of the congestion that exists at some of our major airports relating to the movement of aircraft, passengers, and freight. It is developing remedial measures within the purview of its responsibility. In the area of Board responsibility, a significant event in fiscal year 1967 was the transfer of the function relating to the investigation of air accidents to the National Transportation Safety Board in the new Department of Transportation. The transfer became effective on April 1, 1967.

Domestic and Commerce TRUNKLINES

Economic progress for domestic trunkline carriers continued the past fiscal year, but because of the airline strike the trunklines as a group failed to reach the 10.5-percent return on investment as it did in fiscal 1966. Revenue passenger-miles increased by 13 percent over 1966, up to 62 billion passenger-miles; revenues grew by 10 percent and approximated $4 billion for the first time. Operating expenses also were up by 14 percent, and as a result, net income dropped to $222 billion or an 8.1-percent return on investment. LOCAL SERVICE

There was a 28-percent increase in pacsenger-miles for the local service carriers in fiscal 1967 over fiscal 1966, a 19-percent increase in revenues; and a decrease of $8 million in net income. In addition, the subsidy bill for local service continued its downward trend, a reduction of $4.4 million in fiscal 1967 from fiscal 1966. The industry total was $7.3 million. The CAB local service program in fiscal 1967 continued to concentrate on improved route structure in the interest of providing greater public service and reduced Federal subsidy support. In its efforts to achieve these objectives, the Board has concentrated on awarding the carriers more liberal operating authority and access to higher density long-, medium-, and short-haul markets on a subsidy-ineligible basis even though such awards may involve competition with trunkline carriers. In this area the CAB issued its decision in the Mohawk Route 94 Realignment Investigation in which it consolidated 11 Mohawk segments into nine, thereby providing the carrier with new nonstop and one-stop authority in numerous markets. The decision as to whether to operate nonstop and one-stop services in these markets was left to the discretion of carrier management and the awards were made on a subsidy-ineligible basis. Other realignment proceedings were underway during the year.

69

Section II — Surveys INTERNATIONAL ROUTES

Extensive hearings in the Transpacific Route Investigation were concluded in 1967, and the parties at the close of the fiscal year were working on briefs to the hearing examiner. This all-important proceeding includes 17 airlines and involves consideration of new and competitive service between many of the country's largest cities and points throughout the Pacific including Hawaii. The CAB also initiated a proceeding to consider the award of additional routes to Bermuda in accordance with the recent bilateral air transport agreement entered into by the United States and the United Kingdom. It renewed Trans Caribbean's New York/Newark-San Juan route, and granted Western authority to provide service at Vancouver in the Los Angeles/San FranciscoVancouver case. The Board also granted United and American authority to serve Toronto in the Los Angeles/Chicago-Toronto case, and the MontrealTampa/Miami case in which Northeast was granted direct service authority between the points. (Routes obtained in the recent bilateral agreement with Canada.)

International Aviation Air passenger travel to and from the United States continues to expand at a rapid pace. A total of 11.3 million international air passenger arrivals and departures (excludes United States-Canada air travel and certain other categories of travel) was recorded in the United States in fiscal 1967. This figure may be compared to 9.8 million international air passenger arrivals and departures for the previous year, to provide a year-over-year increase of 1.6 million of 15.9 percent. Of the 11.3 million international air passenger arrivals and departures registered in fiscal 1967, U.S. air carriers accounted for 5.9 million or 52.1 percent of the total. In the previous year, the U.S. air carriers were responsible for 5 million international air passenger arrivals and departures or 51.5 percent of the total. In the 5-year period, 1961-66, the yearly total of international air passenger arrivals and departures rose from 4.95 million in 1961 to 9.8 million. The air share of total international passenger arrivals and departures by air and sea combined rose further—from 83.3 percent in 1965 to 86.3 percent in 1966. Figures for the 5-year period, 1961-66, evidence a steady increase in the air share, as in prior years. Air travel between the United States and Europe was the leading international air passenger market. For U.S. carriers, there were 2.0 million international passenger arrivals and departures in this market during the fiscal year, or 33.8 percent of all U.S.-flag carrier arrivals and departures. It also was the leading market for foreign carriers. International airfreight traffic is still small compared to passenger traffic. It is, however, growing more rapidly. In calendar year 1966, airfreight tonnage on the North Atlantic rose 24 percent over the preceding year. Passenger traffic expanded at a rate of 16.2 percent in the same period. CARRIER OPERATIONS

A total of 18 U.S. air carriers was actively engaged, as of June 1967, in scheduled international air operations, including transborder, regional, and intercontinental air services. Collectively, these carriers were providing scheduled air service to 134 foreign points in 115 countries and territories of the world.

70

UNITED STATES OF AMERICA

One hundred and thirty-two foreign air permits, granted under section 402 of the Federal Aviation Act, were outstanding on June 30. Holders of these permits comprised scheduled passenger carriers, all-cargo airlines, charter companies, forwarding specialists, and Canadian air taxi operators. They represented together a total of 49 countries including their respective territories, located in every part of the world. Forty-nine of the 68 permit holders with authority to conduct scheduled air operations carrying passengers, mail and freight to the United States, including its territories and territories under U.S. control, were actively engaged in operations at the close of the fiscal year. Based on schedules in effect at the end of June I967, foreign air carriers served 20 points or cities in the United States. They are: Anchorage, Boston, Chicago, Cleveland, Corpus Christi, Dallas, Detroit, Honolulu, Houston, Los Angeles, Miami, New Orleans, New York, Philadelphia, San Antonio, San Francisco, Seattle, Tampa, Washington, and West Palm Beach. BILATERAL RELATIONS

At the close of the fiscal year, the United States had air transport agreements with 52 countries (excluding Italy and including the Soviet Union). In those circumstances where no agreement exists (as in the cases of Argentina and the Philippines, for example), air operations between the United States and the country concerned are conducted on the basis of unilateral grants of operating authority. Most of the air transport agreements are predicated on the Bermuda Principles which were first embodied in the air transport agreement concluded between the United States and the United Kingdom at Bermuda in 1946. The year was busy from the standpoint of bilateral air relations. Informal discussions, consultations, and negotiations, dealing mainly with route and capacity questions, were held at home and abroad with a number of countries. The list included Brazil, Chile, Colombia, Czechoslovakia, Dominican Republic, Ecuador, Ireland, Italy, Mexico, Netherlands, Panama, Venezuela, and Vietnam. Consultations with Brazil were held from July 25, 1966, through August 1, 1966, and again from June 13, 1967, through the end of the fiscal year. They were requested by the Brazilian authorities to consider Brazil's contention that U.S.-flag carriers were operating excessive capacity in relation to market demand. The Brazilian contention is under study by the United States. In negotiations with Ireland, held at Dublin, from February 28, 1967, through March 3, 1967, the United States again tried unsuccessfully to obtain the right for a U.S.-flag carrier to serve Dublin. The U.S. carriers serving Ireland are restricted to Shannon, whereas Irish Airlines is able to serve Boston, New York, and Chicago from Dublin and Shannon. Informal discussions were held with Vietnam, at Saigon, in February 1967, to explore questions relating to Pan American's traffic rights in Vietnam. Pan American presently serves Saigon on the basis of an informal approval of the Vietnamese Government. The discussions served, at this juncture, to exchange views. Italy chose to end its air transport agreement with the United States. It denounced the agreement on May 31, 1966, expressing the general view that the agreement was imbalanced in favor of the United States. Subsequently, three meetings were held with Italian government officials, in the first half of calendar year 1967, without resolving the problem. Pursuant to the terms of the agreement, it ceased to exist on May 31, 1967. Air operations between the two countries have continued without change for the time being. 71

Section II — Surveys The United States and the Soviet Union signed an air transport agreement on November 4, 1966, at Washington. The agreement had been drawn up in 1961, but at the time the United States decided to defer signing it. Negotiations looking to a new air transport agreement were held in early April with Czechoslovakia at Prague. They were recessed on April 20, 1967, to resume at a later date. OTHER ACTIVITIES

[A] study examined basic economic and political data for each country; analyzed air transport operations generally and U.S. air carrier operations with respect to each country; identified the problems (capacity restrictions and others) limiting U.S. air carrier operations; and explored alternative courses of action open to us for solving the identifiable problems. A second study was an analysis of Tourism and the United States-Far East & Pacific Air Passenger Market. It considered the basic dimensions of the international tourism industry (essentially, the volume of spending by international visitors and the U.S. visitor portion); the economic significance of international visitor spending, in particular, to developing countries; the distribution and extent of U.S. visitor spending in the Far East and Pacific; the important role played by U.S. air carriers in promoting travel and tourism; the fundamental need for an air transport system providing convenient, frequent flight service between different points; and, relevantly, the adverse effect which restrictions on air service have on international tourism development. The study was addressed primarily to the governments of Indonesia, the Philippines, and Singapore—countries which presently impose capacity restrictions on U.S. carriers. In cooperation with the Federal Aviation Administration (FAA) of the Department of Transportation (DOT), the CAB participated in a survey of airports and airways in the Philippines. The survey was sponsored by the Agency for International Development (AID), and made at the request of the government of the Philippines. The survey was an on-site effort, extending from December 1, 1966, to the end of April 1967. The objective of the survey, which covers economic, traffic (aircraft, passenger, freight, mail), government, operational, technical, and financial considerations, was to provide the government of the Philippines with a comprehensive plan, with costs, for the development and improvement of its system of national airports and airways. The magnitude of the Philippine task, and of the survey effort, can be gauged from the fact that there are presently some 75 national airports and 150 air routes (based on nonstop scheduled operations) in the Philippines. On August 9, 1967, the Civil Aeronautics Board and the Agency for International Development entered into a general agreement, covering CAB's participation in foreign assistance programs in the field of civil aviation. As indicated above, the CAB has participated to some extent already in foreign assistance work. The agreement serves to provide a more direct and formal basis for cooperation between the two agencies in the matter of CAB participation in foreign assistance programs of AID.

Rate Regulation BOARD ENCOURAGES PROMOTIONAL FARES In fiscal 1967 the CAB gave approval to the carriers to implement additional promotional fares and to extend other similar fares into the next fiscal year. In addition, many regular jet fares involving new jet coach and first-class service to smaller domestic cities were established.

72

UNITED STATES OF AMERICA DOMESTIC PASSENGER FARES AND RULES The round-trip "Discover America" excursion fares, offering greater benefits to the traveling public, were extended another year. The trans-continental "Discover America" fares were reduced. Additional carriers offered these fares, and the applicability of all these excursion fares has been simplified and liberalized to achieve substantial uniformity among the carriers. The Board permitted discounted youth fares to be offered by some carriers on an indefinite basis or for other carriers through January 31, 1968. The youth fares have proved very successful in generating additional traffic and revenue for the carriers and providing low-cost service for those in the 12to 22-year age bracket. The trunkline carriers and most local service carriers are offering a 50-percent discount for standby service to military personnel on furlough. Reservations are available, however, to those on emergency leave. Also, more and more carriers are offering a full reservation service to furloughed military personnel at a 33-percent discount. BAGGAGE LIABILITY INCREASED The CAB, in its decision in the Baggage Liability Rules case, required all carriers, for service within the 48 contiguous States, to increase baggage liability limitations for checked or unchecked baggage to $500 where the existing rules provided lower limitations. DOMESTIC CARGO RATES During the fiscal year various carriers introduced throughout the country a number of specific commodity rates. They involve reductions below the general commodity rates previously applicable. After the CAB suspended proposed rate increases, Railway Express Agency, Inc. (REA), filed a revised air express rate structure which increased rates on smaller shipments and lowered rates on larger shipments. The revised structure was permitted to become effective except for proposed increases in charges for live animals and birds which were suspended. The hearing phase of the investigation of these proposed rates has been completed. The Board declined to review the examiner's initial decision finding unlawful TWA'S multicharter rates from European to U.S. points, thus precluding special rates available only for multiple charter contracts. The domestic carriers have agreed on container standards and incentive discounts to shippers who use containers. Preliminary reports indicate that container use is fast growing. The CAB authorized joint discussions among the carriers and with shippers to catalog numerous accessorial cargo services and to resolve whether such services should be furnished free or at a charge. The level of such charges was not to be discussed. The discussions included such items as extra copies of airbiIls, advancing charges, consignee notification, reserved and confirmed freight bookings, storage, and assembly and distribution rules and practices. The Board expected final carrier agreements to be concluded and filed for approval before the end of the calendar year. INTERNATIONAL FARES IN MAJOR AREAS North Atlantic Passenger traffic, continuing spectacular growth during the fiscal year, increased by 12.2 percent as compared with 16.9 percent for the previous year. 73

Section II -- Surveys Normal fares and most promotional fares were unchanged during this period but group travel fares were reduced, most significantly in the new group inclusive tour-basing fares. Economy service to principal European points will be available at a reduction ranging from 39 to 45 percent lower than normal fares, provided that ground services as part of a package tour are purchased at an additional minimum price of $70. The fares are available on a year-round basis for a 14-21-day period except during weekends in June and July eastbound, and August and September westbound. ' These are the lowest fares ever charged for scheduled services in the history of North Atlantic air travel. Transpacific The open-rate situation prevailing since 1963 continued during the fiscal year despite repeated CAB efforts to effect fare reductions. International Air Transport Association carriers failed to reach a fare agreement at the Honolulu Conference in September 1966 and at a special meeting in April 1967. The Board lacks jurisdiction over the reasonableness of international fares which, in most instances, are agreed on by IATA member carriers. The Board's role here is limited to approval or disapproval of agreements. During this open period and to date, the Board in its orders, letters to the carriers, and in public statements has urged that carriers could reduce fares in the Pacific area and still realize reasonable earnings. But for a modest reduction of the United States-Tokyo economy fare during the off season—effective since May 1966—Transpacific fares remained basically at the higher level during the fiscal year. This is true despite the CAB's position reiterated prior to the Honolulu Conference that a 15-percent reduction is the minimum justified in economy-class fares. Effective January 1, 1967, restrictions on group travel were somewhat relaxed and the off-season West Coast-Tokyo economy fare was extended to 8 non-peak months of the year. However, the Japanese rejected attempts by Pan American to introduce a $450 round-trip inclusive-tour fare for nonaffinity groups of 10 between the West Coast and Tokyo. The British denied a similar proposal to Hong Kong. The proposals were both outside the IATA framework. U.S. carrier earnings in this area continued high. Northwest had a 25.3percent return, excluding investment tax credits, for its international division in fiscal 1967 (despite the strike in the summer of 1966) and 26.6 percent including such credits. Pan American realized corresponding returns of 18.8 and 20.6 percent for its transpacific operations. Oilier Areas The normal first-class and economy fares on the South Pacific and the Western Hemisphere generally remained unchanged. However, in the South Pacific, the IATA carriers adopted certain special fares, including 14-28-day excursion fares and a 21-45-day inclusive tour fare offering 25- to 30-percent discounts from normal fares in the West Coast-Sydney markets. IN-FLIGHT ENTERTAINMENT AND LIQUOR SERVICE

Domestic During the previous year the CAB authorized the domestic scheduled airlines to engage in discussions concerning the possibility of establishing a uniform charge to passengers for in-flight entertainment and liquor services. 74

UNITED STATES OF AMERICA The Board believes that essentially these services should pay their own way. Otherwise the costs can be expected in the long run to result in higher fares for passengers who do not want in-flight entertainment, as well as for passengers who do. The same is true with respect to liquor service. Only by identifying these costs can the CAB insure that they are not reflected in basic fares but are compensatory on a voluntary user basis. The carriers were permitted to talk jointly to achieve this end. The Board also approved through March 1968 an IATA resolution providing for maintenance of a $2.50 charge for in-flight entertainment and required that reflecting data usage of in-flight entertainment be supplied by the carriers. INTERNATIONAL CARGO RATES

The IATA carriers at the Puerto Rico conference in April 1967 agreed on worldwide cargo rates for 2 years starting October 1967. In the North and Central Pacific, the agreements are estimated to lower rates in the aggregate by close to 15 percent. In the South Pacific area, multiple weight' breaks are being introduced northbound to equal the southbound level and structure. Western Hemisphere rates remain generally unchanged with some new specific commodity rates adopted. Some reductions were effected on the North Atlantic, particularly in the higher weight breaks of the general commodity rates, and are estimated to result in annual savings to shippers of more than $7 million. SERVICE MAIL RATES

The Domestic Service Mail Rate case investigation neared decision at the close of the fiscal year. The Board will establish the compensation which the Post Office Department will pay the trunkline and local service carriers for the carriage of airmail in domestic service from January 1, 1967. Temporary rates at a reduced level were established pending final decision in the case. The Post Office Department has proposed greatly reduced mail rates for Atlantic and Pacific services. The carriers' priority airmail revenues were $91 million in 1966. with 1 cent per ton-mile equivalent to $2.7 million per year. Rates for the carriage of Military Ordinary Mail (MOM), which is official military mail having a lower priority than regular airmail, also were reopened January 1, 1967. This proceeding is expected to parallel processing of Atlantic and Pacific airmail rates. Some $34 million of payments to air carriers related to this type of mail in 1966. MILITARY TRANSPORTATION

The CAB since 1960 has fixed the minimum rates under which the Department of Defense, through its Military Airlift Command, contracts with civil air carriers to transport personnel and cargo internationally and cargo domestically. The fiscal 1967 volume of such services will be about $600 million. The figure was $394 million in fiscal 1966, $231 million in fiscal 1965. The Board established revised rates for international services effective June 1, 1967, and for domestic services effective July 1, 1967. For fiscal 1968, the estimated 7.4-percent overall rate reduction for international services will mean savings of about $44.4 million to the Federal Government.

75

Section II — Surveys TRAVEL AGENCY MATTERS

The CAB has no authority to regulate directly the appointment or retention of travel agents by airlines, or the business relationships between the agents and the airlines. However, the domestic and international airlines, through their respective trade associations, have developed over the years comprehensive rules to govern travel agency matters. Since these rules involve concerted action by the airlines affecting air transportation, they must be filed with the CAB and are subject to approval or disapproval in the public interest. The CAB continued to allow air carriers to transport travel agents free of charge on orientation flights to domestic points on the carriers' routes. These exemptions also were granted for trips to certain international points. The goal is to make more people aware of the "Visit the U.S.A." fares available to foreign residents. During the previous fiscal year, because of controversy over a proposed change in the agency commission structure and for other important considerations, the CAB urged the carriers and agents to undertake a joint study to determine the appropriate role of agents in the merchandising of air transportation, and what it costs a travel agent to provide those services which are of value to his carrier principal as compared with what it would cost the carrier itself were it to provide the service. The CAB noted that knowledge of the range of these costs, as well as evidence of the value of these services to the public, would appear to be necessary should any new commission structure become the subject of controversy.

Subsidies Subsidy payments by the CAB to eligible air carriers continued their downward trend in fiscal 1967, and a revised class rate concluded during the year portends that this trend will continue in calendar 1967. The fiscal 1967 estimate of 65.7 million was $7.3 million below that of fiscal 1966. International services of the U.S. carriers, domestic trunklines services (other than $2.5 million for local New England services), and helicopter services received no Federal subsidy support. The table itemizes subsidy estimates by carrier services: Estimated subsidy,' fiscal 1967 (000)

Carrier services: Alaskan Domestic trunkline Hawaiian Helicopter International ._ ._ Local Service Total

$ 6,649 2,500 567 0 0 56,000 65,716

The Federal Aviation Act (sec. 406) authorizes the CAB to provide subsidy payments to eligible air carriers to make possible service required by the public interest. During fiscal 1967, subsidy was limited to the smallest number of 1. Detailed information as to the amounts of subsidy provided each airline is contained in a separate report of the CAB published annually entitled "Subsidy for United States Certificated Air Carriers."

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UNITED STATES OF AMERICA

carrier groups and to the lowest dollar amount since the start of jet air transportation. The CAB terminated subsidy payments to the two Hawaiian carriers—Aloha Airlines, Inc., and Hawaiian Airlines, Inc.—as of January 1, 1967, and only two groups were still receiving subsidy as fiscal 1967 ended: (1) the 13 local service carriers and the local services of Northeast Airlines, Inc., in the New England area and (2) services of Alaskan carriers within, to, and from the State of Alaska. Only one of the four carriers serving between the Pacific Northwest and the State of Alaska—Alaska Airlines, Inc.—remains on subsidy, and it was placed on a final rate effective January 1, 1967, which provides for gradual elimination of subsidy by 1971. The revised class rate (Class Rate IV) concluded in fiscal 1967 for the 13 local carriers accounts for the bulk of subsidy payments. The Board anticipates that under this rate subsidy payments will decline next year by the largest amount and to the lowest level in recent years. A major feature of the new rate is an automatic revenue-growth adjustment that reduces each carrier's subsidy payments as its passenger revenues increase. Current estimates anticipate that this feature will reduce local service subsidy to $53 million for calendar 1967, a $13.5 million drop from the peak levels of 1963-64. Supplemental, Freight Forwarder, and Charter Services SUPPLEMENTAL AIR CARRIERS

The fiscal year was one of record prosperity for the supplemental air carrier industry even though the carriers were only beginning to try their wings under the substantial new authority awarded by the CAB in the Transatlantic Charter case and the Supplemental Air Service case. It saw notable growth in net worth, with several carriers becoming publicly owned; it witnessed a growth in equipment inventories, with a continuing trend toward turbojet aircraft; and it was marked by increased participation in service for the military. As of June 30, 1967, the supplemental carriers had total assets of $270 million and a combined net worth of $84 million, as compared with $169 million and $53 million, respectively, at the close of fiscal 1966. Total operating revenue of the supplementals in fiscal 1967 was $243 million, and their operating profit for that period was $38 million. Comparable figures for fiscal 1966 were $169 million and $28 million respectively. As of June 30, 1967, the total assets of supplemental carriers constituted approximately 3 percent of the industry's total assets; and the operating revenues amounted to approximately 4 percent of the industry's total operating revenues. In the international phase of the Supplemental Air Service Proceeding, temporary certificates of public convenience and necessity were issued to 10 supplemental carriers. They are: American Flyers Airline Corp., Capitol Airways, Inc. (now Capitol International Airways, Inc.), Johnson Flying Service, Inc., Modern Air Transport, Inc., Purdue Aeronautics Corporation, Saturn Airways, Inc., Southern Air Transport, Inc., Trans International Airlines, Inc., World Airways, Inc., and Zantop Air Transport (now Universal Airlines, Inc.). The certificates authorize the recipients to engage in charter service in foreign and overseas air transportation. They were awarded on a selective geographic basis and include inclusive-tour charter authority, an innovation for supplemental carriers. This permits them to carry tour groups assembled by authorized tour operators through solicitation of the general public. 77

Section II — Surveys AIR FREIGHT FORWARDERS

The combined domestic and international forwarders' revenue from airfreight forwarding increased from $164 million in calendar year 1965 to $206 million in calendar 1966. In terms of traffic, the forwarders performed 1,890,991 consolidations in 1966, compared with 1,529,232 in 1965. The forwarding industry's share of air cargo business also has increased. In 1965 forwarders generated 20 percent of the cargo tonnage handled by the route air carriers; in 1966 the percentage was 22. Gross airfreight forwarding revenues in 1966 showed a 26-percent increase over 1965. Net profit for the industry from all operations showed a 14-percent increase during the same period; and total tonnage handled by forwarders increased from 256,767 in 1965 to 320,436 in 1966. Hearings were held in the Motor Carrier-Air Freight Forwarder Investigation, in which the CAB is considering whether to permit long-haul motor carriers of general commodities to become airfreight forwarders. As of June 30, 1967, there were 145 companies holding airfreight forwarder authority. Of these, 35 held domestic authority only, 33 held international authority only, and 77 held both types. This represented a net increase of 17 during the period covered by this report. FOREIGN CHARTER CARRIERS

There were two significant decisions affecting the authorization of transatlantic charter operations by foreign charter carriers. The temporary foreign air carrier permit held by Caledonian Airways (Prestwick) Ltd. was renewed for 5 years and amended so as to add authority to perform, subject to certain conditions, (a) "split charters" of persons and their accompanied baggage, (b) planeload charters of property, (c) United Kingdomoriginated circle-tour charters, (d) round-trip passenger charter flights originating at points in Europe and destined to the United States, (e) single-entity passenger charter trips between United Kingdom territories and possessions and the United States, and (f) inclusive-tour charter flights between the United Kingdom and the United States. The German charter carrier Sudflug (Suddeutsche Fluggesellschaft, mbH) was authorized, for a period terminating April 29, 1968, to operate inclusivetour charter flights originating in the Federal Republic of Germany and destined for the United States. The permit carries some of the requirements for tours that are imposed on U.S. supplemental-operated tours, viz, each tour must provide overnight hotel accommodations at a minimum of three places, such places to be at least 50 miles apart, and a maximum of three tour groups may be carried on an aircraft chartered to one tour operator. The CAB did not impose a tour price floor as it has with U.S. supplementals. (The price of tours operated by U.S. supplementals must be no less than 110 percent of the lowest available fare charged by a certificated route carrier between the points served.) However, the authority granted Sudflug applies only to inclusive tour charters operated inbound to the United States. FOREIGN AIRCRAFT FLIGHT PERMITS AND OFF-ROUTE CHARTERS BY FOREIGN AIR CARRIERS

There continues to be an upward trend in the volume of (1) off-route charter authorizations to holders of foreign air carrier permits for regular route services and (2) noncommon carriage flight permits to foreign companies under the provisions of section 1108(b) of the act. The activity in this area of the CAB's work is reflected in the following table: 78

UNITED STATES OF AMERICA

Item Noncommon carriage flight permits Off-route charter permits Total

1963

1964

1965

1966

1967

208 507

255 622

237 654

232 633

295 599

715

877

891

865

894

Mergers, Acquisitions of Control, and Intercorporate Agreements Air carriers merging and seeking to merge were a significant development in fiscal 1967. Three mergers were approved by the Board and consummated during the fiscal year. Mackey Air Lines, Inc., and Pan American-Grace Airways, Inc. (Panagra)—U.S. carriers with international scheduled operations—were absorbed by other carriers; Mackey by Eastern Air Lines, Inc., pursuant to a CAB order effective January 8, 1967, and Panagra by Braniff Airways, Inc., under a Board order effective February 1, 1967. The third merger—Pacific Northern Airlines, Inc., with Western Airlines, Inc., the survivor—was approved by a CAB order effective June 5, 1967. Three other merger cases were instituted during fiscal 1967. They involved the proposed mergers of Northern Consolidated Airlines, Inc., with Wien Air Alaska; Alaska Airlines, Inc., with Alaska Coastal Airlines, Inc.; and Alaska Airlines, Inc., with Cordova Airlines, Inc. CONTROL AND INTERLOCKING RELATIONSHIPS

The CAB acted on 68 applications for approval of control or interlocking relationships under sections 408 and 409 of the act. Approximately 70 percent of these pertained to relationships involving direct air carriers, on the one hand, and surface common carriers and persons engaged in a phase of aeronautics. including aeronautical equipment suppliers on the other hand. The rest of the applications were filed by airfreight forwarders and involved relationships with local pickup and delivery carriers, airline sales agents, and affiliated companies engaged in various activities. The Board's concern in all these matters was directed at maintaining intercorporate relationships free from conflicts of interest detrimental to the development of air transportation. INTERCORPORATE AGREEMENTS

During fiscal 1967 the CAB reviewed and acted on a total of 1,041 intercarrier contracts and agreements.... The agreements involve such matters as administration of the trade associations; passenger, baggage, and cargo practices; reservations and ticketing; free and reduced-rate transportation; interline passenger-handling procedures; traffic documentation; travel agency matters; airport usage; tariff publication; and air express service. TECHNICAL ASSISTANCE

The CAB approved three agreements pursuant to which a U.S.-flag airline has established a cooperative working relationship with a foreign airline for the training of foreign personnel and assistance in the management and/or operation of the foreign airline.

Economic Enforcement The CAB's enforcement program attempts to achieve compliance throughout the industry with the economic provisions of the Federal Aviation Act and the rules, regulations, orders, and certificates issued by the Board. 79

Section 11 — Surveys The CAB also handles complaints from the public regarding the service provided by air carriers. Because of a sharp rise in the number of complaints received, the CAB in March 1967 directed its Bureau of Enforcement to visit the principal offices of trunkline and local service airlines to determine how widespread and serious service deficiencies are and what is being done about them. Scheduled irregularities, particularly delayed and canceled flights, are the basis for the greatest number of complaints. A large number of complaints concerned reservations problems, most involved oversales. Lost and delayed baggage, lack of communication from the carrier concerning claims, and delay in settlement or dissatisfaction with the amount offered in settlement accounted for many of the complaints.

Court Actions Thirty-three cases were disposed of during the fiscal year, with 22 cases pending at the end of the year. This compares with 28 cases disposed of during fiscal 1966 and 27 cases pending at its close. Included in cases disposed of in fiscal 1967 were three safety enforcement cases which were transferred prior to completion to the National Transportation Safety Board pursuant to the Department of Transportation Act (80 Stat. 931). A significant development occurred during the year with respect to the CAB's Transpacific Rowe case, currently in progress, when the Court of Appeals for the District of Columbia Circuit affirmed consolidation and denial of intervention orders which had been challenged by three civic parties (San Antonio, Tex., and Tampa, Fla., and the State of Wisconsin on behalf of Milwaukee). The CAB's consolidation order was designed to avoid creation of an unduly complex and protracted proceeding by limiting consideration of nonstop service to the Pacific to 25 mainland cities chosen according to size, traffic-generating capacity, and geographical location. This was held to be a proper exercise of the Board's discretion to control the size and scope of its proceedings through the application of reasonable criteria in determining who would be permitted to participate. City of San Antonio, et al. v. Civil Aeronautics Board, 374 F. 2d 326 (C.A.D.C. 1967). The CAB's use of a "factor-balancing" approach in determining what the public convenience and necessity require in various contexts was reaffirmed in three cases. In United Air Lines, Inc. v. Civil Aeronautics Board, 371 F. 2d 221 (C.A. 7, 1967), the court affirmed CAB orders entered in the DetroitCalifornia Nonstop Service Investigation, which removed restrictions on the operating authority of the three carriers in the Detroit-Los Angeles and Detroit-San Francisco air travel markets, namely, American, Trans World, and United Air Lines. The court held that rigid adherence to criteria of public convenience and necessity for establishing new routes is not required in a restriction-removal case, and that the CAB has broad discretion to determine the relative weight the different factors are to be accorded in different types of proceedings. The other two cases employing this approach involved the application of the Board's "use-it-or-lose-it" policy, a policy which the CAB hopes to downgrade in the future. In New Castle Country Airport Commission v. Civil Aeronautics Board, 371 F. 2d 733 (C.A.D.C. 1966), certiorari denied, 387 U.S. 930 (1967), review was sought of CAB orders entered in the Salisbury-Wilmington "Use-It-Or-Lose-It" case. The Board amended Allegheny Airlines' certificate by deleting Wilmington, Del., as a separate intermediate point on one of the federally subsidized carrier's route segments. In response to New Castle's contention that the CAB's established approach precludes deletion of a point which meets the minimum-use test of five passenger enplanements per day, the court

80

UNITED STATES OF AMERICA

sustained the view that the "5 per day" factor is merely a guideline. The court noted that the Board properly considered reduction of subsidy cost and the proximity of alternative airports to Wilmington passengers as decisive factors in this decertification proceeding. In the other case involving its "use-it-or-lose-it" policy, the CAB found that the public interest required deletion of Pontiac and Cadillac-Reed City, Mich., from the certificate of North Central Airlines. In affirming the Board's order, the Court of Appeals for the Sixth Circuit held that while alleged deficiencies in the carrier's service must be weighed as a factor militating against decertification, the degree of importance to be attached to opposing factors falls within the "spacious domain" of policy matters which are entrusted to the Board's discretion. City of Pontiac, et al. v. Civil Aeronautics Board, 361 F. 2d 810 (C.A. 6, 1966). The courts also affirmed CAB determinations in four related cases involving the application of Part 222 of the Board's economic regulations, which provides for authorizations to file tariffs for pickup and delivery services beyond a 25mile zone around a certificated point as "services in connection with ... air transportation." In the lead case, Law Motor Freight, Inc., et al. v. Civil Aeronautics Board, 364 F. 2d 139 (C.A. 1, 1966), certiorari denied, 387 U.S. 905 (1967), petitioner, an ICC-certified line-haul carrier, sought review of a CAB order which authorized Emery Air Freight Corp., a freight forwarder, to file a tariff for air cargo pickup-and-delivery service on the 43-mile trip between Nashua, N.H., and Boston, Mass. In affirming the Board's finding that the proposed service was truly "pickup and delivery" and thus was "in connection with air transportation," the court held that the extension of the pickup-and-delivery service beyond the 25-mile zone constituted a valid exercise of the Board's rule-making power and that, accordingly, no prior hearing was required. Four months later, the Court of Appeals for the District of Columbia Circuit affirmed per curiani a CAB order authorizing Emery to file tariffs for pickupand-delivery service between Flint, Mich., and the Detroit airports, a distance of about 50 miles. National Motor Freight Traffic Association v. Civil Aeronautics Board, 374 F. 2d 266 (C.A.D.C. 1966), certiorari denied, 387 U.S. 905 (1967). Two other petitions challenging similar CAB orders were affirmed by the Court of Appeals for the D.C. Circuit on agreement by petitioners that they should be governed by the National Motor Freight decision if, as proved to be the case, the Supreme Court denied certiorari in Law and National Motor Freight. Two major Board proceedings continued to be the subject of court litigation during the current fiscal year as they had been in the past. The Court of Appeals for the District of Columbia sustained the Board in the Supplemental Air Service Proceeding. The CAB permitted the newly certificated supplemental air carriers to charter aircraft to travel agents for the conduct of "inclusive tours" (all expense package tours) in accordance with a new special regulation issued by the Board. It was challenged by the certificated trunkline carriers. The court held that the inclusive tour charters authorized by the Board comported with the overall intent of Congress reflected again the definition of "supplemental air transportation" in section 101(33) of the Federal Aviation Act. American Airlines, Inc., et al. v. Civil Aeronautics Board, 365 F. 2d 939 (C.A.D.C. 1966). A few months later, after approval by the President, the Board released its orders authorizing "inclusive tour" charters by supplemental air carriers in foreign and overseas air transportation, adopted in the Supplemental Air Service Proceeding and the Transatlantic Charter Investigation. Some of the same

81

Section 11— Surveys trunkline carriers again challenged the Board's power to authorize inclusive tour charters, this time in the Court of Appeals for the Second Circuit. This time, after the close of the fiscal year, the court reached the opposite conclusion, holding that the Board was not authorized to award "inclusive tour" charter authority. Pan American World Airways, Inc., Trans World Airlines, Inc., and American Airlines, Inc. v. Civil Aviation Board, C.A. 2, No. 30947-8, decided July 20, 1967. (On August 4, 1967, the Board and three of the intervenors filed petitions for rehearing, seeking en bane reconsideration by the Court of Appeals. These petitions were denied on September 29, 1967.) In a related area, two of the same petitioners (Pan American and TWA) challenged the Board's action in authorizing Sudfiug, a German charter carrier, to charter aircraft to German tour operators for the operation of inclusive tours from Germany to the United States without taking jurisdiction over, and granting authority to, the German tour operators. Two cases were filed, one in the District Court for the District of Columbia seeking a declaratory judgment and mandatory relief (Pan American World Airways and Trans World Airlines v. Murphy, et. al., U.S.D.C., D.C., No. 68567), and the other in the Court of Appeals for the District of Columbia Circuit to review the Board's order (Pan American World Airways and Trans World Airlines v. Civil Aeronautics Board, C.A.D.C. No. 20,860). On June 28, 1967, the District Court dismissed the airlines' complaint, sustaining the CAB's position that the court lacked jurisdiction and that, in any event, the complaint failed to state a claim on which relief could be granted. The airlines appealed this decision and the case has been consolidated with the petition for direct appellate review of the Board's order in the court of appeals. Both cases were pending at the time of this report's preparation. Another major Board proceeding before the courts again this year was the Reopened Southern Transcontinental Case. In 1962 the Court of Appeals for the District of Columbia had remanded to the CAB its selection of Eastern Air Lines rather than Braniff Airways to operate a Dallas-Miami route (Brant& Airways, Inc. v. Civil Aeronautics Board, 306 F. 2d 379 C.A.D.C. 1962). After new hearings, the CAB again selected Eastern over Braniff. Reconsideration of this determination failed because the Board was equally divided. Braniff challenged once again in the courts, attacking both the Board's choice of carrier and the procedure by which it was reached. Prior to the court decision, the CAB instituted a new proceeding involving transcontinental service across the southern States (Southern Tier Competitive Nonstop Investigation) and asked the court to remand the orders challenged by Braniff for inclusion in the proceeding. In a detailed opinion, the court sustained the CAB on all of the procedural issues, including the use of its "notation" procedure in the decision process, but vacated the Board's order on reconsideration on the ground that under the circumstances of the case "it was the duty of the Board to grant reconsideration." On remand the court said that CAB might consider the issues in connection with an investigation of broader scope and interrelated routes. Braniff Airways, Inc. v. Civil Aeronautics Board, 379 F. 2d 453 (C.A.D.C. 1967). The CAB then vacated its order in the Reopened Southern Transcontinental Case and consolidated the docket with its new Southern Tier investigation. In another significant case, two attempts were made to upset the CAB's decision in the Eastern-Mackey Merger case were unsuccessful. In Delta Air Lines Inc. v. Civil Aeronautics Board, C.A.D.C., No. 20,507, Oct. 24, 1966, the court denied a petition for mandamus and stay of further proceedings while the CAB's decision was before the President pending his action.

82

UNITED STATES OF AMERICA

Later, in Delta Air Lines, Inc. v. Civil Aeronautics Board, CA.D.C. No. 20,657, Jan. 6, 1967, the court denied a petition for stay of CAB orders approving the Eastern-Mackey merger and the transfer of Mackey's certificates and exemption authority to Eastern after approval by the President. Litigation involving the validity of military standby fares, youth fares, and young adult fares, which involved reductions of 33 to 50 percent for cur-tailed services to these groups, progressed to the point of court decisions. In these cases the CAB had dismissed the complaints of various bus companies against the fares. Some 15 petitions for review were filed, at least one in each circuit. Ultimately all the cases were consolidated in the Court of Appeals for the Fifth Circuit, which after the close of the fiscal year sustained the Board's dismissal of the complaints against the validity of the military standby tariffs, but remanded the case to the CAB for further consideration with respect to the youth and adult fares. Transcontinental Bus System, et al. v. Civil Aeronautics Board, F. 2d (C.A. 5, 1967); Nos. 22791 et al.

Safety In the 9-month period, the Bureau of Safety conducted 842 investigations, 129 more than for the corresponding fiscal 1966 period, or an 18-percent increase. The number was highest of any corresponding period in the history of the Board. Of the total, 808 were accident investigations, 34 were incident investigations. This compares with 671 accident and 42 incident investigations in the comparable fiscal 1966 period. July, August, September, October, and January each were record-high months. GENERAL AVIATION ACCIDENTS

The Board initiated 750 investigations of mishaps that occurred in general aviation operations. Most of these were fatal accidents in single- or two-engine reciprocal aircraft and helicopters, but an increasing number involved turbojet aircraft. The rest of the general aviation accidents that involved light-plane, fixed-wing aircraft in nonfatal accidents were investigated by the Federal Aviation Agency. Approximately 40 percent of these investigations involved receipt and review of a report of accident filed by the owner or operator of the aircraft. In all cases, the CAB conducted the analysis of the findings, determined probable cause and issued a public report. Of the 5,712 accidents in general aviation in calendar 1966, a total of 573 were fatal, resulting in 1,152 fatalities. While the number of accidents increased, the amount of flying operations increased so markedly that the accident rate in the past year shows a significant decline.

Legislative Developments Public Law 89-670, approved October 15, 1966, established a Department of Transportation, and transferred the CAB's safety and accident investigation functions under titles VI and VII of the Federal Aviation Act of 1958 to the National Transportation Safety Board within the Department. Public Law 89-487, approved July 4, 1966, and effective July 4, 1967, amended section 3 of the Administrative Procedure Act, so as to require Government agencies to make more information and more records available to the public. The provisions of Public Law 89-487 were incorporated into title 5 of the United States Code, without substantive change, by Public Law 90-23, approved June 5, 1967. Public Law 89-647, approved October 13, 1966, amended the Federal Airport Act so as to extend its provisions for 3 years.

83

Section III Treaties

Chapter 8

General Treaties (Status) I CHICAGO CONVENTION ON INTERNATIONAL CIVIL AVIATION SIGNED 7 DECEMBER 1944* Authentic English text in ICAO Doc 7300/3 Depository: Government of the United States of America Entered into force on 4 April 1947 The following States have become parties to this Convention during 1967: Guyana (3/2/67)1 Barbados (21/3/67) Uganda (10/4/67) Bulgaria (8/6/67) On 31 December 1967, 116 States were parties to that Convention. A. AMENDMENTS TO THE CONVENTION

1. Protocol introducing a new Article 93 bis (First Session of the Assembly, 1947)

Authentic English, French, and Spanish texts in ICAO Doc 7570 Depository: ICAO Entered into force on 20 March 1961 The following State has ratified this Protocol during 1967: Singapore (4/1/67) 2. Protocol amending Article 45 (Eighth Session of the Assembly, 1954)

Authentic English, French, and Spanish texts in ICAO Doc 7675 Depository ICAO Entered into force on 16 May 1958 The following State has ratified this Protocol during 1967: Singapore (4/1/67) * Information given hereunder was kindly contributed by ICAO. 1. The date appearing in brackets after the name of each State refers to the date of ratification or adherence.

87

Section III — Treaties 3. Protocol amending Articles 48(a), 49(e), and 61 (Eighth Session of the Assembly, 1954) Authentic English, French, and Spanish texts in ICAO Doc 7667 Depository: ICAO Entered into force on 12 December 1956 The following States have ratified this Protocol during 1967: Singapore (4/1/67) Chile (20/12/67) 4. Protocol amending Article 50(a) (Thirteenth [Extraordinary] Session of the Assembly, 1961) Authentic English, French, and Spanish texts in ICAO Doc 8170 Depository: ICAO Entered into force on 17 July 1962 The following States have ratified this Protocol during 1967: Singapore (4/1/67) Chile (20/12/67) 5. Protocol amending Article 48(a) (Fourteenth Session of the Assembly, 1962) Authentic English, French, and Spanish texts of the Assembly Resolution containing this Protocol in ICAO Doc 7670, Vol. II. Depository: ICAO Not yet in force The following States have ratified this Protocol during 1967: Singapore (4/1/67 ) Malagasy Republic (24/4/67) Chile (20/12/67) B. ANNEXES TO THE CONVENTION NEW EDITIONS IN 1967

Annex 4 — Aeronautical Charts Sixth Edition, incorporating Amendments 1 to 40. Annex 10 — Aeronautical Telecommunications, Vols. I and 11 Second Edition, incorporating Amendments 1 to 47. Annex 15 — Aeronautical Information Services Fourth Edition, incorporating Amendments 1 to 10. C. AMENDMENTS TO ANNEXES ADOPTED IN 1967

Annex 2 (Rules of the Air), Amendment 10, Adopted on 7 June 1967 Applicable as of 8 February 1968. 88

GENERAL TREATIES (STATUS)

Annex 3 (Meteorology), Amendment 54, Adopted on 13 June 1967 Applicable as of 1 January 1968. Annex 4 (Aeronautical Charts), Amendment 40, Adopted on 13 June 1967 Applicable as of 8 February 1968. Annex 6 (Operation of Aircraft, International Commercial Air Transport), Amendment 151, Adopted on 8 November 1967 Applicable as of 22 August 1968. Annex 7 (Aircraft Nationality and Registration Marks), Amendment 2, Adopted on 8 November 1967 Applicable as of 22 February 1968. Annex 8 (Airworthiness of Aircraft), Amendment 88, Adopted on 8 November 1967 Applicable as of 22 February 1968. Annex 10 (Aeronautical Telecommunications), Amendment 46, Adopted on 7 June 1967 Applicable as of 8 February 1968. Amendment 47, Adopted on 11 December 1967 Applicable as of 22 August 1968. Annex 11 (Air Traffic Services), Amendment 16, Adopted on 7 June 1967 Applicable as of 8 February 1968. Annex 14 (Aerodromes), Amendment 21, Adopted on 28 June 1967 Applicable as of 8 February 1968. Annex 15 (Aeronautical Information Services), Amendment 10, Adopted on 13 June 1967 Applicable as of 8 February 1968. D. AMENDMENTS TO PROCEDURES FOR AIR NAVIGATION SERVICES ADOPTED IN 1967

PANS — ICAO Abbreviations and Codes (Doc 8400), Amendment 3, Approved on 13 June 1967 Applicable as of 8 February 1968. PANS — Meteorology (Doc 7605-MET/526), Amendment 13, Approved on 20 June 1967 Applicable as of 1 January 1968. PANS — Rules of the Air and Air Traffic Services (Doc 4444-RAC/ 501/8), Amendment 1, Approved on 20 February 1967 Applicable as of 24 August 1967. (Doc. 4444-RAC/501 /8), Amendment 2, Approved on 7 June 1967 Applicable as of 8 February 1968. 89

Section Ill — Treaties II

CHICAGO INTERNATIONAL AIR SERVICES TRANSIT AGREEMENT SIGNED 7 DECEMBER 1944* Authentic English text in ICAO Doc 7500 Depository: Government of the United States of America Entered into force on 30 January 1945 Note: Singapore has notified its acceptance of the Agreement on 22/8/66. No State has become party to this Agreement during 1967. On 31 December 1967, 73 States were parties to this Agreement. III CHICAGO INTERNATIONAL AIR TRANSPORT AGREEMENT SIGNED 7 DECEMBER 1944* Authentic English text in ICAO Doc 2187 Depository: Government of the United States of America Entered into force on 8 February 1945 No State has become party to this Agreement during 1967. On 31 December 1967, 11 States were parties to this Agreement. IV GENEVA CONVENTION ON THE INTERNATIONAL RECOGNITION OF RIGHTS IN AIRCRAFT SIGNED 19 JUNE 1948* Authentic English, French, and Spanish texts in ICAO Doc 7620 Depository: ICAO Entered into force on 17 September 1953 The following States have become parties to this Convention during 1967: Iceland (6/2/67) Thailand (10/10/67) Information given hereunder was kindly contributed by ICAO.

90

GENERAL TREATIES (STATUS)

V GUADALAJARA CONVENTION, SUPPLEMENTARY 10 THE WARSAW CONVENTION, FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR PERFORMED BY A PERSON OTHER THAN THE CONTRACTING CARRIER SIGNED 18 SEPTEMBER 1961* Authentic English, French, and Spanish texts in ICAO Doc 8181 Depository: Government of the United States of Mexico Entered into force on 1 May 1964 The following States have become parties to this Convention during 1967: Denmark (20/1/67) Norway (20/1/67) Sweden (20/1/67) Brazil (8/2/67) Lebanon (21/2/67) Note: According to information provided by ICAO, the ratifications of Columbia and the Philippines listed in the Yearbook of Air and Space Law, 1966, were deposited on 2/5/66 and 5/4/66, respectively. VI ROME CONVENTION RELATING TO DAMAGE CAUSED BY FOREIGN AIRCRAFT TO THIRD PARTIES ON THE SURFACE SIGNED 7 OCTOBER 1952* Authentic English, French, and Spanish texts in ICAO Doc 7364 Depository: ICAO Entered into force on 4 February 1958 No State has become party to this Convention during 1967. VII THE HAGUE PROTOCOL TO AMEND THE CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR, SIGNED AT WARSAW ON 12 OCTOBER 1929 SIGNED 28 SEPTEMBER 1955* Authentic English, French, and Spanish texts in ICAO Doc 7632 Depository: Government of the People's Republic of Poland Entered into force on 1 August 1963 •

Information given hereunder was kindly contributed by ICAO.

91

Section III — Treaties The following States have become parties to this Protocol during 1967: United Kingdom (3/3/67) New Zealand (16/3/67) Korea (13/7/67) Japan (10/8/67) South Africa (18/9/67) Singapore (6/11/67) Note: To the list of States having. ratified this Protocol prior to 1 January 1967, please add Colombia (15/8/66) and Philippines (30/11/66). VIII TOKYO CONVENTION ON OFFENCES AND CERTAIN OTHER ACTS COMMITTED ON BOARD AIRCRAFT SIGNED 14 SEPTEMBER 1963* Authentic English, French, and Spanish texts in ICAO Doc 8364 Depository: ICAO Not yet in force The following States have become parties to this Convention during 1967: Denmark (17/1/67) Norway (17/1/67) Sweden (17/1/67) IX WARSAW CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR SIGNED 12 OCTOBER 1929* Authentic French text in M. Hudson, International Legislation, Vol. V, p. 100 Depository: Government of the People's Republic of Poland Entered into force on 13 February 1933 The following States have become parties to this Convention during 1967: Korea (13/7/67)** Singapore (6/11/67) Note: To the list of States having ratified this Convention prior to 1 January 1967, please add Columbia (15/11/66). Information given hereunder was kindly contributed by ICAO. •* The Government of Poland has indicated that the reception of the instrument of accession and this notification (to ICAO) does not mean the recognition of the Republic of Korea by the Government of the Polish People's Republic.

92

Chapter 9

Bilateral Agreements I. TYPES OF CO-OPERATIVE AGREEMENTS AND ARRANGEMENTS BETWEEN STATES, AIRLINES, OR STATES AND AIRLINES With the approval of the Council, ICAO has published a circular entitled Summary of Material Collected on Co- operative Agreements and Arrangements (Circular 84 AT/14). H. AGREEMENTS AND ARRANGEMENTS REGISTERED WITH ICAO DURING 1967* A. AGREEMENTS AND ARRANGEMENTS BETWEEN STATES

SUBJECT

DATE OF SIGNATURE

DATE OF ENTRY INTO FORCE

ICAO NO.

UN NO.

Afghanistan Austria Sweden Yugoslavia

Air Services Air Services Air Transport

21/7/58 24/5/67 7/1/60

11/7/59 24/4/61

1965 1995 1924

Algeria Ivory Coast Switzerland

Air Transport Air Transport

16/2/67 18/6/63

16/2/67 13/6/67

1964 1979

A ustralia Austria

Air Services

22/3/67

22/3/67

1970

Austria Afghanistan Australia Hungary Spain Tunisia United States' Yugoslavia

Air Services Air Services Air Transport Air Transport Air Transport Air Services Air Services

21/7/58 22/3/67 17/7/59 19/2/62 17/10/66 23/6/66 11/11/53

11/7/59 22/3/67 6/8/59 11/5/62 19/5/67 23/7/66 11/11/53

1965 1970 1984 1963 2007 1955 8687 1923 5206

* This list is a reproduction from ICAO Doc 8727 LGB/252, which is the third annual supplement to ICAO Doc 8473 LGB/215. Doc 8727 LGB/252 also contains a list of agreements arranged by subject matter and, with respect to air transport and air services agreements. distinguishing between those which follow the Standard Form recommended at Chicago, and those which differ therefrom; this list is not reproduced here. Footnote numbers have been altered so as to run consecutively throughout. 1. Supersedes the Interim Air Transport Agreement dated 8/10/47 (ICAO Reg. No. 647).

93

Section III — Treaties

SUBJECT

Belgium Germany, Fed. Rep. oft Singapore South Africa3 Brazil France Chile Ecuador Paraguay Switzerland Congo (Brazzaville) Denmark Sweden Cyprus Sweden' Switzerland Denmark Congo (Brazzaville) Ivory Coast Nigeria Nigeria° Poland° Singapore South Africa? Sweden-Norway°

DATE OF SIGNATURE

DATE OF ENTRY INTO FORCE

ICAO NO.

UN NO.

Air Services Air Services

29/11/66 9/1/67 29/5/67 13/11/67

Air Transport

29/10/65

prov. 29/10/65 1971 def. 18/2/67

Air Transport Air Transport Air Services

11/7/57 1/6/57 5/10/60

prov. 11/7/57 prov. 1/6/57 19/1/67

2008 2001 1939

Air Transport Air Transport

27/2/67 27/2/67

prov. 27/2/67 prov. 27/2/67

1974 8681 1950

Air Transport Air Services

26/1/63 12/3/66

30/10/64 prov. 12/3/66 def. 5/7/67

1779A 1931

Air Transport

27/2/67

27/2/67

1974 8681

7/6/66 8/9/66 8/9/66 6/4,6/6/67 20/12/66 13/3/67 20/8/59

8/3/67 prov. 8/9/66 prov. 8/9/66 6/6/67 20/12/66 13/3/67 20/8/59

1944 1922 1933 1996 1946 1976 1966

20/8/59

1/10/60

1967

18/6/63

18/6/63

1968

31/8/66

31/8/66

1969

Air Transport

Air Transport Air Services Air Services Air Transport Air Services Air Services Co-Operation in Civil Aviation Sweden-Norway° Financial Guarantees to Airlines Sweden-Norwayi0 Financial Guarantees to Airlines Sweden-Nortvay11 Financial Guarantees to Airlines

9/1/67

1930 4945

29/5/67 13/11/67

1990 2009

8557 8557 5927 8580

2. Modification of Letter-Annex to Agreement dated 14/4/56 (ICAO Reg. No. 1452). 3. Supersedes Agreement dated 11/6/58 (ICAO Reg. No. 1398). 4. Annex and Supplement to Agreement dated 26/1/63 (ICAO Reg. No. 1779). 5. Supplement to Agreement dated 8/9/66 (ICAO Reg. No. 1922). 6. Modification of Part B of Annex to Agreement dated 17/1/61 (ICAO Reg. No. 1573). 7. Extension of Agreement dated 28/3/58 (ICAO Reg. No. 1384) as modified and extended. 8. Supplement to Agreement dated 20/12/51 (ICAO Reg. No. 970). 9. Renewal of Agreement signed at Copenhagen on 29/9/55 (not registered with ICAO). 10. Supplement to Agreement dated 20/8/59 (ICAO Reg. No. 1967). 11. Extension of Agreement dated 20/8/59 (ICAO Reg. No. 1967) and Supplement dated 18/6/63 (ICAO Reg. No. 1968).

94

BILATERAL AGREEMENTS

SUBJECT

DATE OF

DATE OF ENTRY

SIGNATURE

INTO FORCE

ICAO NO.

prov. 11/7/57

2008

Ecuador Chile

Air Transport

11/7/57

Ethiopia Tanzania

Air Services

19/9/67

Air Transport Air Services Air Traffic

5/4/66 20/1,4/3/67 23/5/67

5/4/66 4/3/67 23/5/67

1937 1958 1983

Air Transport

29/10/65

1971

Air Transport Air Transport Air Services Air Transport Air Transport

21/6,10/8/67 18/7/67 29/6/67 7/4/66 23/3/67

prov. 29/10/65 def. 18/2/67 10/8/67 18/7/67 29/6/67 prov. 7/4/66 prov. 23/3/67

Finland Sweden" Switzerland's USSR"

France Brazil Hungary15 Sierra Leone Singapore Syria Yugoslavia

UN NO.

2011

2003 2004 1999 1998 2002

Germany, Federal Republic of Belgium's Air Transport Jamaica" Air Transport

29/11/66,9/1/67 9/1/67 8/9,6/12/66 6/12/66

1930 4945 1938

Hungarian People's Republic Austria France"

17/7/59 21/6,10/8/67

6/8/59 10/8/67

1984 2003

9/5/67

9/5/67

1973

6/10/67

2000

17/4/67

1957

26/1/67

1929

16/6/67

1972

Air Transport Air Transport

India United Kingdom" Air Services ICAO Iran

1/5,30/9/67 Technical Assistance under Funds-in-Trust Financing Kenya, Uganda Plan of 7,17/4/67 and United Rep. Operation of Tanzania — UN Special Fund Morocco — UN Plan of 29/7/66, Special Fund20 Operation 16,26/1/67 16/6/67 Sweden T.A. Associate Experts

12. 13. 14. 15. 16. 17. 18. 19. 20.

Modification of Annex to Agreement dated 26/4/49 (ICAO Reg. No. 767). Modification of Annex to Agreement dated 7/1/59 (ICAO Reg. No. 1433). Modification of Article 8 of the Convention dated 19/10/S5 (ICAO Reg. No. 1431). New Annex I to Agreement dated 2/5/60 (ICAO Reg. No. 1511). Modification of Letter-Annex to Agreement dated 14/4/56 (ICAO Reg. No. 1452). Modification and Extension of Agreement dated 7/10/64 (ICAO Reg. No. 1877). New Annex Ito Agreement dated 2/5/60 (ICAO Reg. No. 1511). Modification of Route Schedule to Agreement dated 1/12/51 (ICAO Reg. No. 907). Amendment No. 1 to Plan of Ope ation dated 23.29/6/1 (ICAO Reg. No. 1568).

95

Section 111— Treaties SUBJECT

Iran ICAO

DATE OF SIGNATURE

ICAO NO.

UN NO.

6/10/67

2000

15/3,1/5/55

1/5/55

1997

Ireland United Kingdom"Air Services United Kingdom27Air Services United Kingdorn21Air Services

30/6/66 13/4/67 24/7/67

30/6/66 13/4/67 24/7/67

1936 1962 1975

Italy South Africa2

Air Services

26/7/67

26/7/67

1981

Ivory Coast Algeria Denmark Norway Sweden Tunisia

Air Transport Air Transport Air Transport Air Transport Air Transport

16/2/67 7/6/66 7/6/66 7/6/66 8/6/67

16/2/67 8/3/67 8/3/67 8/3/67 prov. 8/6/67

1964 1944 1943 1940 2012

Jamaica Germany, Fed. Rep. of26

Air Transport

8/9,6/12/66

6/12/66

1938

Air Services Air Services

14/2/67 28/12/65

1/8/67 28/12/65

1989 1952 2862

7,17/4/67

17/4/67

1957

15/12/66 19/10/67 18/11/66 1/8/67

prov.15/12/66 19/10/67 18/11/66 1/8/67

1951 2006 1918 1982

29/7/66, 16,26/1/67

26/1/67

1929

Iraq Sweden21

Japan Singapore" United States27

Technical 1/5,30/9/67 Assistance under Funds-in-Trust Financing

DATE OF ENTRY INTO FORCE

Air Transport

Kenya, Uganda and United Republic of Tanzania ICAO — UN Plan of Operation Special Fund Malaysia Netherlands" Air Services Sweden Air Services Air Services Thailand United Kingdom Air Services Morocco Plan of ICAO — UN Operation Special Fund29

928

21. Modification of Agreement dated 28/10/51 (ICAO Reg. No. 985). 22. 23. 24. Modification of Annex to Agreement dated 5/4/46 (ICAO Reg. No. 117). 25. Amendment to Agreement dated 21/5/56 as amended on 17/6/59 and 10/4/61 (ICAO Reg. Nos. 1265. 1461. 1570). 26. Modification and Extension of Agreement dated 7/10/64 (ICAO Reg. No. 1877). 27. Modification of Agreement dated 11/8/52 as supplemented and amended (ICAO Reg. Nos. 1080. 1199, 1482). 28. As regards the Kingdom of the Netherlands, the Agreement is applicable only to the Kingdom in Europe. 29. Amendment No. 1 to Plan of Operation dated 23.29/6/61 (ICAO Reg. No. 1568).

96

BILATERAL AGREEMENTS

SUBJECT

Netherlands, Kingdom of the Malaysia3°

prov. 15/12/66 1951 2005 prov. 13/6/67 1978 prov. 29/12/66 1947 1992 prov. 3/7/67

12/4,1/6/65

1/10/64

1935 56

30/12/66

31/12/66

1985

18/10/66

prov. 18/10/66 1991 def. 5/9/67

Air Services Air Services Air Services Air Services Air Services Air Services

8/9/66 8/9/66 8/9/66 8/9/66 8/9/66 8/9/66

prov. 8/9/66 prov. 8/9/66 prov. 8/9/66 prov. 8/9/66 prov. 8/9/66 prov. 8/9/66

1922 8557 1933 8557 1921 1986 1920 1927

Air Transport Air Services Air Services Air Services Air Services Co-Operation in Civil Aviation Financial Guarantees to Airlines

7/6/66 8/9/66 8/9/66 20/12/66 13/3/67 20/8/59

8/3/67 prov. 8/9/66 prov. 8/9/66 20/12/66 13/3/67 20/8/59

1943 1921 1986 1945 1977 1966

20/7/59

1/10/60

1967

New Zealand Western SamoaJ6 Civil Aviation Facilities Niger Tunisia Air Transport

Norway Ivory Coast Nigeria Nigeria.0 Singapore South Africa" SwedenDenmarkA2 SwedenDenmark"

DATE OF ENTRY ICAO UN INTO FORCE NO. NO.

15/12/66 13/7/67 13/6/67 29/12/66 3/7/67

Air Services Air Transport Panama" Sierra Leone" Air Services Singapore" Air Services Trinidad and Air Services Tobago34 United Kingdom" Air Services

Nigeria Denmark Denmark" Norway NorwayJB Sweden Swvedeis

DATE OF SIGNATURE

30. As regards the Kingdom of the Netherlands. the Agreement is applicable only to the Kingdom in Europe. 31. 32. As regards the Kingdom of the Netherlands. the Agreement is applicable to the Kingdom in Europe. Surinam and the Netherlands Antilles. 33. As regards the Kingdom of the Netherlands, the Agreement is applicable only to the Kingdom in Europe. 34. As regards the Kingdom of the Netherlands. the Agreement is applicable to the Kingdom in Europe. Surinam and the Netherlands Antilles. 35. Modification of Annex to Agreement dated 13/8/46 (ICAO Reg. No. 337). 36. Extension of Agreement dated 24/1/63 (ICAO Reg. No. 1700). 37. Supplement to Agreement dated 8/9/66 (ICAO Reg. No. 1922). 38. Supplement to Agreement dated 8/9/66 (ICAO Reg. No. 1921). 39. Supplement to Agreement dated 8/9/66 (ICAO Reg. No. 1920). 40. Supplement to Agreement dated 8/9/66 (ICAO Reg. No. 1921). 41. Extension of Agreement dated 28/3/58 (ICAO Reg. No. 1383). as modified and extended. 42. Supplement to Agreement dated 20/12/51 (ICAO Reg. No. 970). 43. Renewal of Agreement signed at Copenhagen on 29/9/55 (not registered with ICAO).

97

Section III -- Treaties SUBJECT

SwedenDenmark"

DATE OF SIGNATURE

DATE OF ENTRY INTO FORCE

ICAO NO.

UN NO.

Financial 18/6/63 Guarantees to Airlines 31/8/66 Financial Guarantees to Airlines Air Services 7/6/66

18/6/63

1968

31/8/66

1969

7/6/66

1954 3034

Pakistan Sweden"

Air Services

3/7,6/10/61

6/10/61

1941

Panama Netherlands"

Air Transport

13/7/67

Paraguay Chile

Air Transport

1/6/57

prov. 1/6/57

2001

Peru United States*

Air Services

2/3/66

2/3/66

1953

Poland Denmark" Switzerland'`,

Air Transport Air Transport

6/4,6/6/67 6/10,5/12/66

6/6/67 5/12/66

1996 5927 1928

Sierra Leone France Netherlands"

Air Transport Air Services

18/7/67 13/6/67

18/7/67 prov. 13/6/67

2004 1978

Singapore Belgium Denmark France Japan Netherlands" Norway Sweden United Kingdom

Air Services Air Services Air Services Air Services Air Services Air Services Air Services Air Services

29/5/67 20/12/66 29/6/67 14/2/67 29/12/66 20/12/66 20/12/66 1/8/67

29/5/67 20/12/66 29/6/67 1/8/67 prov. 29/12/66 20/12/66 20/12/66 I/8/67

1990 1946 8580 1999 1989 1947 1945 1942 1980

South Africa Belgium '4 Denmark"

Air Services Air Services

13/11/67 13/3/67

13/11/67 13/3/67

2009 1976

SwedenDenmark" United States"

2005

390

44. Supplement to Agreement dated 20/8/59 (ICAO Reg. No. 1967). 45. Extension of Agreement dated 20/8/59 (ICAO Reg. No. 1967) and supplement dated 18/6/63 (ICAO Reg. No. 1968). 46. Modification of Agreement dated 6/10/45 as amended (ICAO Reg. Nos. 76. 1162. 1403). 47. Modification of Agreement dated 6/3/58 (ICAO Reg. No. 1496). 48. As regards the Kingdom of the Netherlands, the Agreement is applicable to the Netherlands. Surinam and the Netherlands Antilles. 49. Modification of Agreement dated 27/12/46 as amended (ICAO Reg. Nos. 644. 1471). 50. Modification of Part B of Annex to Agreement dated 17/1/61 (ICAO Reg. No. 1573). 51. Modification of Annex to Agreement dated 18/5/61 (ICAO Reg. No. 1687). 52. As regards the Kingdom of the Netherlands. the Agreement is applicable to the Kingdom in Europe, Surinam and the Netherlands Antilles. 53. As regards the Kingdom of the Netherlands the Agreement is applicable only to the Kingdom in Europe. 54. Supersedes Agreement dated 11/6/58 (ICAO Reg. No. 1398). 55. Extension of Agreement dated 28/3/58 (ICAO Reg. No. 1384) as modified and extended.

98

BILATERAL AGREEMENTS

SUBJECT

Italy" Norway67 Sweden" Spain Austria Sweden" Sweden Afghanistan Congo (Brazzaville) Cyprus" DenmarkNorway81 DenmarkNorway 62 DenmarkNorway62 DenmarkNorway6' Finland 65 ICAO Irag 66 Ivory Coast Malaysia Nigeria Nigeria87 Pakistan" Singapore South Africans Spain70 Switzerland71

DATE OF SIGNATURE

DATE OF ENTRY INTO FORCE

ICAO NO.

Air Services Air Services Air Services

26/7/67 13/3/67 13/3/67

26/7/67 13/3/67 13/3/67

1981 1977 1948

Air Transport Air Services

19/2/62 5/S/65

11/5/62 5/5/65

1963 1932

Air Services Air Transport

24/5/67 27/2/67

prov. 27/2/67

1995 1950

Air Transport Co-Operation in Civil Aviation Financial Guarantees to Airlines Financial Guarantees to Airlines Financial Guarantees to Airlines Air Transport T.A. Associate Experts Air Transport Air Transport Air Services Air Services Air Services Air Services Air Services Air Services Air Services Air Transport

26/1/63 20/8/59

30/10/64 20/8/59

1779A 1966

20/8/59

1/10/60

1967

18/6/63

18/6/63

1968

31/8/66

31/8/66

1969

5/4/66 16/6/67

5/4/66 16/6/67

1937 1972

15/3,1/5/55 7/6/66 19/10/57 8/9/66 8/9/66 3/7,6/10/61 20/12/66 13/3/67 5/5/65 13,26/4/67

1/5/55 8/3/67 19/10/67 prov. 8/9/66 prov. 8/9/66 6/10/61 20/12/66 13/3/67 5/5/65 26/4/67

1997 1940 2006 1920 1927 1941 1942 1948 1932 1994

UN NO.

56. Amendment to Agreement dated 21/5/56 as amended on 17/6/59 and 10/4/61 (ICAO Reg. Nos. 1265. 1461. 1570). 57. Extension of Agreement dated 28/3/58 (ICAO Reg. No. 1383) as modified and extended. 58. Extension of Agreement dated 28/3/58 (ICAO Reg. No. 1382) as modified and extended. 59. Supersedes Agreement dated 18/2/50 (ICAO Reg. No. 984). 60. Annex and Supplement to Agreement dated 26/1/63 (ICAO Reg. No. 1779). 61. Supplement to Agreement dated 20/12/51 (ICAO Reg. No. 970). 62. Renewal of Agreement signed at Copenhagen on 29/9/55 (not registered with ICAO). 63. Supplement to Agreement dated 20/8/59 (ICAO Reg. No. 1967). 64. Extension of Agreement dated 20/8/59 (ICAO Reg. No. 1967) and supplement dated 18/6/63 (ICAO Reg. No. 1968). 65. Modification of Annex to Agreement dated 26/4/49 (ICAO Reg. No. 767). 66. Modification of Agreement dated 28/10/51 (ICAO Reg. No. 985). 67. Supplement to Agreement dated 8/9/66 (ICAO Reg. No. 1920). 68. Modification of Agreement dated 6/3/58 (ICAO Reg. No. 1496). 69. Extension of Agreement dated 28/3/58 (ICAO Reg. No. 1382) as modified and extended. 70. Supersedes Agreement dated 18/2/50 (ICAO Reg. No. 984). 71. Amendment of Annex to Agreement dated 18/10/50 (ICAO Reg. No. 883).

99

Section III — Treaties

SU BJECT

USSR" United Arab Republic73 Yugoslavia7' Yugoslavia7S

DATE OF SIGNATURE

DATE OF ENTRY INTO FORCE

ICAO NO.

Air Services Air Transport

27/1/67 11/11/58

27/1/67 11/11/58

1949 2010

Air Transport Air Transport

6/10/62 6/10/62 23/10,26/12/63 26/12/63

1987 1988

Air Transport Air Services Air Services

18/6/63 5/10/60 12/3/66

1979 1939 1931

Finland78 Polandn Sweden78 Thailand7'

Air Services Air Transport Air Transport Air Services

20/1,4/3/67 6/10,5/12/66 13,26/4/67 11/5,28/9/66

13/6/67 19/1/67 prov. 12/3/66 def. 5/7/67 4/3/67 5/12/66 26/4/67 28/9/66

Syrian Arab Republic France Yugoslavia

Air Transport Air Services

7/4/66 17/7/66

prov. 7/4/66 prov. 17/7/66

1998 1925

Tanzania, United Republic of Ethiopia

Air Services

19/9/67

Tanzania (United Republic of}, Kenya, Uganda ICAO-UN Special Fund

Plan of Operation

7,17/4/67

17/4/67

1957

Thailand Malaysia Switzerland80

Air Services Air Services

18/11/66 11/5,28/9/66

18/11/66 28/9/66

1918 1919

Trinidad and Tobago NetherlandsS1

Air Services

3/7/67

prov. 3/7/67

1992

Tunisia Austria Ivory Coast

Air Transport

17/10/66 8/6/67

19/5/67 prov. 8/6/67

2007

Air Transport

Switzerland Algeria Chile Cyprus

UN NO.

1958 1928 1994 1919

2011

2012

72. Supplement to Agreement dated 31/3/56 (ICAO Reg. No. 1333). 73. Amendment of Annex to Agreement between Sweden and Egypt dated 12/12/49 (ICAO Reg. No. 821), 74. Replaces Annex to Agreement dated 18/4/58 (ICAO Reg. No. 1497). 75. Replaces the Supplementary Agreement dated 6/10/62 (ICAO Reg. No. 1987). 76. Modification of Agreement dated 7/1/59 (ICAO Reg. No. 1433). 77. Modification of Annex to Agreement dated 18/5/61 (ICAO Reg. No. 1687). 78. Modification of Annex to Agreement dated 18/10/50 (ICAO Reg. No. 883). 79. Modification of Annex to Agreement dated 13/10/56 (ICAO Reg. No. 1326). 80. Modification of Annex to Agreement dated 13/10/56 (ICAO Reg. No. 1326). 81. As regards the Kingdom of the Netherlands, the Agreement is applicable to the Netherlands, Surinam and the Netherlands Antilles.

100

BILATERAL AGREEMENTS

SUBJECT

DATE OF SIGNATURE

DATE OF ENTRY INTO FORCE

ICAO NO.

Niger

Air Transport

18/10/66

Yugoslavia

Air Transport

18/11/66

prov. 18/10/66 1991 def. S/9/67 prov. 18/11/66 1926

Plan of Operation

7,17/4/67

17/4/67

1957

Air Traffic Air Services Air Services

23/5/67 27/1/67 4/11/66

23/5/67 27/1/67 4/11/66

1983 1949 1956

Air Transport

11/11/58

11/11/58

2010

Air Services Air Services Air Services Air Services Air Services Air Services Air Services

9/5/67 30/6/66 13/4/67 24/7/67 1/8/67 12/4,1/6/65 1/8/67

9/5/67 30/6/66 13/4/67 24/7/67 1/8/67 1/10/64 1/8/67

1973 1936 1962 1975 1982 1935 1980

7,17/4/67

17/4/67

1957

29/7/66, 16,26/1/67

26/1/67

1929

UN NO.

Uganda, Kenya, Tanzania, United Republic of ICAO-UN Special Fund

Union of Soviet Socialist Republics (USSR) Finlanda= Sweden" United States

United Arab Republic Sweden'

United Kingdom of Great Britain and Northern Ireland India"b IrelandB6 Ireland" Ireland" Malaysia NetherlandsB9 Singapore

928

56

United Nations Development Programme (Special Fund) Plan of ICAO-Kenya, Uganda and Operation United Rep. of Tanzania ICAO-Morocco" Plan of Operation

82. Modification of Article 8 of the Convention dated 19/10/55 (ICAO Reg. No. 1431). 83. Supplement to Agreement dated 31/3/56 (ICAO Reg. No. 1333). 84. Amendment of Annex to Agreement between Sweden and Egypt dated 12/12/49 (ICAO Reg. No. 821). 85. Modification of Route Schedule to Agreement dated 1/12/51 (ICAO Reg. No. 907). 86, 87, 88. Modification of Annex to Agreement dated 5/4/46 (ICAO Reg. No. 117). 89. Modification of Annex to Agreement dated 13/8/46 (ICAO Reg. No. 337). 90. Amendment No. 1 to Plan of Operation dated 23.29/6/61 (ICAO Reg. No. 1568).

101

Section III — Treaties SUBJECT

DATE OF SIGNATURE

DATE OF ENTRY ICAO UN INTO FORCE NO. NO.

United Republic of Tanzania: See Tanzania, United Republic of United States of America Austria91 Japan" Norway" Peru94 USSR Western Samoa New Zealand" Yugoslavia Afghanistan Austria France Sweden" Sweden" Syria Tunisia

Air Services Air Services Air Services Air Services Air Services

23/6/66 28/12/65 7/6/66 2/3/66 4/11/66

23/7/66 28/12/65 7/6/66 2/3/66 4/11/66

1955 8687 1952 2862 1954 3034 1953 390 1956

Civil Aviation Facilities

30/12/66

31/12/66

1985

Air Transport Air Services Air Transport Air Transport Air Transport Air Services Air Transport

7/1/60 11/11/53 23/3/67 6/10/62 23/10,26/12/63 17/7/66 18/11/66

24/4/61 11/11/53 prov. 23/3/67 6/10/62 26/12/63 prov. 17/7/66 prov. 18/11/66

1924 1923 5206 2002 1987 1988 1925 1926

26/1/67

1929

17/4/67

1957

Plans of Operation ICAO-Morocco-UN Special Fund98

29/7/66, 16,26/1/67 ICAO-Kenya, Uganda, United Rep. 7,17/4/67 of Tanzania-UN Special Fund

Air Transport and Air Services Bilateral agreements concluded after the Chicago Conference: (i) in a different form than the Standard Form recommended at Chicago: 1984 Austria — Hungary 17/7/59 6/8/59 6/12/66 1938 Jamaica — Fed. Rep. of Germany" 8/9,6/12/66 1956 4/11/66 4/11/66 United States — USSR 27/1/67 1949 Sweden — USSR' 27/1/67 1948 Sweden — South Africa'01 13/3/67 13/3/67 1976 South Africa — Denmark' 13/3/67 13/3/67 91. Supersedes the Interim Air Transport Agreement dated 8/90/47 (ICAO Reg. No. 647). 92. Modification of Agreement dated 11/8/52 as supplemented and amended (ICAO Reg. Nos. 1080, 1199, 1482). 93. Modification of Agreement dated 6/10/45 as amended (ICAO Reg. Nos. 76, 1162, 1403). 94. Modification of Agreement dated 27/12/46 as amended (ICAO Reg. Nos. 644, 1471). 95. Extension of Agreement dated 24/1/63 (ICAO Reg. No. 1700). 96. Supplementary Agreement replacing the Annex to Agreement dated 18/4/58 (ICAO Reg. No. 1497). 97. Supplementary Agreement replacing the Agreement dated 6/10/62 (ICAO Reg. No. 1987). 98. Amendment No. 1 to Plan of Operation of 23,29/6/61 (ICAO Reg. No. 1568). 99. Modification and Extension of Agreement dated 7/10/64 (ICAO Reg. No. 1877). 100. Supplement to Agreement dated 31/3/56 (ICAO Reg. No. 1333). 101. Extension of Agreement dated 28/3/58 (ICAO Reg. No. 1382) as modified and extended. 102. Extension of Agreement dated 28/3/58 (ICAO Reg. No. 1384) as modified and extended.

102

BILATERAL AGREEMENTS

SUBJECT

South Africa - Norway1°' Denmark - Poland104 Finland - USSR'°' France - Hungary'°' South Africa - Italy107

DATE OF SIGNATURE

13/3/67 6/4,6/6/67 23/5/67 21/6,10/8/67 26/7/67

DATE OF ENTRY INTO FORCE

13/3/67 6/6/67 23/5/67 10/8/67 26/7/67

ICAO NO.

UN NO.

1977 1996 5927 1983 2003 1981

(ii) in accordance with the Standard Form recommended at Chicago: Yugoslavia - Austria 11/11/53 11/11/53 1923 5206 Sweden - Irag30B 15/3,1/5/55 1/5/55 1997 1/6/57 prov. 1/6/57 Chile - Paraguay 2001 Chile - Ecuador 11/7/57 prov. 11/7/57 2008 21/7/58 Austria - Afghanistan 11/7/59 1965 Sweden - United Arab Republic10' 11/11/58 2010 11/11/58 7/1/60 Yugoslavia - Afghanistan 24/4/61 1924 Switzerland - Chile 5/10/60 19/1/67 1939 Sweden - Pakistan1' 3/7,6/10/61 1941 6/10/61 Austria - Spain 19/2/62 11/5/62 1963 6/10/62 6/10/62 Sweden - Yugoslavia' 1987 26/1/63 Sweden - Cyprus"' 30/10/64 1779A 13/6/67 Switzerland - Algeria 18/6/63 1979 23/10,26/12/63 26/12/63 Sweden - Yugoslavia"' 1988 56 United Kingdom - Kingdom of the 12/4,1/6/65 1935 1/10/64 Netherlands"' 1932 Sweden - Spain" 5/5/65 5/5/65 France - Brazil 29/10/65 prov. 29/10/65 1971 del. 18/2/67 United States - Japan" 28/12/65 28/12/65 1952 2862 2/3/66 United States - Peru"7 2/3/66 1953 390 Switzerland - Cyprus 12/3/66 prov. 12/3/66 1931 def. 5/7/67 Sweden - Finland1' 5/4/66 1937 5/4/66 7/4/66 France - Syria prov. 7/4/66 1998 Switzerland - Thailand1' 11/5,28/9/66 28/9/66 1919 7/6/66 Sweden - Ivory Coast 8/3/67 1940 103. Extension of Agreement dated 28/3/58 (ICAO Reg. No. 1383) as modified and extended. 104. Modification of Annex to Agreement dated 17/1/61 (ICAO Reg. No. 1573). 105. Modification of Article 8 of Convention dated 19/10/S5 (ICAO Reg. No. 1431). 106. New Annex I to Agreement dated 2/5/60 (ICAO Reg. No. 1511). 107. Modification of Agreement dated 21/5/56. as amended on 17/6/59 and 10/4/61 (ICAO Reg. Nos. 1265. 1461 and 1570). 108. Modification of Agreement dated 28/10/51 (ICAO Reg. No. 985). 109. Amendment of Annex to Agreement between Sweden and Egypt dated 12/12/49 (ICAO Reg. No. 821). 110. Modification of Annex to Agreement dated 6/3/58 (ICAO Reg. No. 1496). 111. Supplement to Agreement dated 18/4/58 (ICAO Reg. No. 1497). 112. Annex and Supplement to Agreement dated 26/1/63 (ICAO Reg. No. 1779). 113. Supplementary Agreement replacing the Agreement dated 6/10/62 (ICAO Reg. No. 1987). 114. Modification of Annex to Agreement dated 13/8/46 (ICAO Reg. No. 337). 115. Supersedes Agreement dated 18/2/50 (ICAO Reg. No. 984). 116. Modification of Agreement dated 11/8/52 as supplemented and amended (ICAO Reg, Nos. 1080, 1199, 1482). 117. Modification of Agreement dated 27/12/46, as amended (ICAO Reg. Nos. 644, 1471). 118. Modification of Annex to Agreement dated 26/4/49 (ICAO Reg. No. 767), 119. Modification of Annex to Agreement dated 13/10/56 (ICAO Reg. No. 1326).

103

Section III — Treaties SUBJECT

DATE OF SIGNATURE

Ivory Coast - Norway Ivory Coast - Denmark United States - Norway" United States - Austria" United Kingdom - Ireland142 Yugoslavia - Syria Nigeria - Sweden Nigeria - Sweden," Nigeria - Norway Norway - Nigeria" Nigeria - Denmark Denmark - Nigeria" Switzerland - Poland" Tunisia - Austria Tunisia - Niger

7/6/66 7/6/66 7/6/66 23/6/66 30/6/66 17/7/66 8/9/66 8/9/66 8/9/66 8/9/66 8/9/66 8/9/66 6/10,5/12/66 17/10/66 18/10/66

Thailand - Malaysia Yugoslavia - Tunisia Belgium - Fed. Rep. of Germany"'

18/11/66 18/11/66 29/11/66, 9/1/67 15/12/66

Kingdom of the Netherlands Malaysia1" Sweden - Singapore Singapore - Norway Singapore - Denmark Singapore - Kingdom of the Netherlands'2' Switzerland - Finland" Singapore - Japan Ivory Coast - Algeria Sweden - Congo (Brazzaville) Denmark - Congo (Brazzaville) Austria - Australia France - Yugoslavia Ireland - United Kingdom" Sweden - Switzerland" India - United Kingdom" Sweden - Afghanistan Singapore - Belgium

DATE OF ENTRY INTO FORCE

8/3/67 8/3/67 7/6/66 23/7/66 30/6/66 prov. 17/7/.66 prov. 8/9/66 prov. 8/9/66 prov. 8/9/66 prov. 8/9/66 prov. 8/9/66 prov. 8/9/66 5/12/66 19/5/67 prov. 18/10/66 def. 5/9/67 18/11/66 prov. 18/11/66 9/1/67

ICAO NO.

1943 1944 1954 1955 1936 1925 1920 1927 1921 1986 1922 1933 1928 2007 1991

UN NO.

3034 8687 928

8557 8557

191* 1926 1930 4945

prov. 15/12/66 1951

20/12/66 20/12/66 20/12/66 29/12/66

20/12/66 20/12/66 20/12/66 29/12/66

1942 1945 1946 8580 1947

20/1,4/3/67 14/2/67 16/2/67 27/2/67 27/2/67 22/3/67 23/3/67 13/4/67 13,26/4/67 9/5/67 24/5/67 29/5/67

4/3/67 1/8/67 16/2/67 prov. 27/2/67 prov. 27/2/67 22/3/67 prov. 23/3/67 13/4/67 26/4/67 9/5/67

1958 1989 1964 1950 1974 8681 1970 2002 1962 1994 1973 1995 1990

29/5/67

120. Modification of Agreement dated 6/10/45. as amended (ICAO Reg. Nos. 76, 1162, 1403). 121. Supersedes the Interim Air Transport Agreement dated 8/10/47 (ICAO Reg. No. 647). 122. Modification of Annex to Agreement dated 5/4/46 (ICAO Reg. No. 117). 12.3. Supplement to Agreement dated 8/9/66 (ICAO Reg. No. 1920). 124. Supplement to Agreement dated 8/9/66 (ICAO Reg. No. 1921). 125. Supplement to Agreement dated 8/9/66 (ICAO Reg. No. 1922). 126. Modification of Annex to Agreement dated 18/5/61 (ICAO Reg. No. 1687). 127. Modification of Letter-Annes to Agreement dated 14/4/56 (ICAO Reg. No. 1452). 128, 129. As regards the Kingdom of the Netherlands, the Agreement is applicable only to the Kingdom in Europe. 130. Modification of Annex to Agreement dated 7/1/59 (ICAO Reg. No. 1433). 131. Modification of Annex to Agreement dated 5/4/46 (ICAO Reg. No. 117). 132. Modification of Annex to Agreement dated 18/10/50 (ICAO Reg. No. 883). 133. Modification of Route Schedule to Agreement dated 1/12/51 (ICAO Reg. No. 907).

104

BILATERAL AGREEMENTS

SUBJECT

Tunisia - Ivory Coast Kingdom of the Netherlands Sierra Leone' Singapore - France Kingdom of the Netherlands Trinidad and Tobago''' Kingdom of the Netherlands Panama"' France - Sierra Leone Ireland - United Kingdom"' Singapore - United Kingdom United Kingdom - Malaysia Tanzania, United Rep. of - Ethiopia Sweden - Malaysia South Africa - Belgium"'

DATE OF SIGNATURE

DATE OF ENTRY INTO FORCE

ICAO NO.

8/6/67 13/6/67

prov. 8/6/67 prov. 13/6/67

2012 1978

29/6/67 3/7/67

29/6/67 prov. 3/7/67

1999 1992

13/7/67 18/7/67 24/7/67 1/8/67 1/8/67 19/9/67 19/10/67 13/11/67

UN NO.

2005 18/7/67 24/7/67 1/8/67 1/8/67 19/10/67 13/11/67

2004 1975 1980 1982 2011 2006 2009

134. As regards the Kingdom of the Netherlands, the Agreement is applicable to the Kingdom in Europe, Surinam and the Netherlands Antilles. 135. As regards the Kingdom of the Netherlands. the Agreement is applicable to the Netherlands, Surinam and the Netherlands Antilles. 136. As regards the Kingdom of the Netherlands. the Agreement is applicable to the Kingdom in Europe, Surinam and the Netherlands Antilles. 137. Modification of Annex to Agreement dated 5/4/46 (ICAO Reg. No. 1(7). 138. Supersedes Agreement dated 11/6/58 (ICAO Reg. No. 1398).

B. AGREEMENTS AND ARRANGEMENTS BETWEEN STATES AND AIRLINES

SUBJECT

Alitalle Sweden

International Air Services Compagnie Nationale Air France International Sweden Air Services Sweden1° International Air Services India International SAS Air Services

Scandinavian Airlines System (SAS) International India Air Services

DATE OF SIGNATURE

17/3/67

DATE OF ENTRY INTO FORCE

1/4/67

ICAO NO.

1959

1960

13/5/66 10/3/67

1/4/67

1961

17/11,7/12/66

1/11/66

1934

17/11,7/12/66

1/11/66

1934

139. Extension of Concession granted on 13/5/66 (ICAO Reg. No. 1960).

105

Section Ill — Treaties SUBJECT

Sweden Air France Air France10 Alitalia

International Air Services International Air Services International Air Services

DATE OF SIGNATURE

DATE OF ENTRY INTO FORCE

13/5/66

ICAO NO.

1960

10/3/67

1/4/67

1961

17/3/67

1/4/67

1959

190. Extension of Concession granted on 13/5/66 (IACO Reg. No. 1960).

III. MODIFICATIONS IN THE STATUS OF AERONAUTICAL AGREEMENTS AND ARRANGEMENTS

Note: This table contains information on modifications in the status of Aeronautical Agreements and Arrangements enumerated in the general Tables of Agreements and Arrangements registered with ICAO up to 31 December 1966 (Doc 8473 LGB/215, Doc 8563 LGB/228 and Doc 8648 LGB/239). ICAO UN NO. NO.

MULTILATERAL CONVENTIONS 19/6/48 Convention on the International Recognition of Rights in Aircraft Ratification 6/2/67 to take effect on 7/5/67 Iceland Adherence 10/10/67 to take effect on 8/1/68 Thailand 25/2/54 Agreement on North Atlantic Ocean Stations Accession 28/8/67 to take effect on 28/8/67 India Agreement on the Joint Financing of certain Air 25/9/56 Navigation Services in Iceland .4 ccession 28/8/67 to take effect on 28/8/67 India Agreement on the Joint Financing of certain Air 25/9/56 Navigation Services in Greenland and the Faroe Islands Accession 28/8/67 to take effect on 28/8/67 India 22/4/60 Multilateral Agreement relating to Certificates of Airworthiness for Imported Aircraft Ratifications 29/3/67 to take effect on 28/4/67 Greece 14/9/67 to take effect on 14/10/67 Ireland 106

1195 4492

1165 2922

1429 4766

1430 4767

1581 6023

BILATERAL AGREEMENTS

ICAO UN NO. NO.

Convention Supplementary to the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier Ratifications Brazil Sweden Norway

8/2/67 to take effect on 9/5/67 20/1/67 to take effect on 20/4/67 20/1/67 to take effect on 20/4/67

Accessions Denmark Lebanon

20/1/67 to take effect on 20/4/67 21/2/67 to take effect on 22/5/67

BILATERAL AGREEMENTS United States - Air Transport Austria (superseded by Agreement dated 23/6/66 - ICAO Reg. No. 1955) Sweden - Spain Air Services (replaced by Agreement dated 5/5/65 - ICAO Reg. No. 1932) South Africa - Air Services Belgium (superseded by Agreement dated 13/11/67 - ICAO Reg. No. 2009)

18/9/61

1757 7305

8/10/47

647

18/2/50

984

11/6/58

1398

IV. BILATERAL AGREEMENTS CONCLUDED BY EUROCONTROL A. ACCORD ENTRE LE MINISTERE DE LA DEFENSE — AIR "ISPETTORATO DELLE TELECOMUNICAZIONI E DELL'ASSISTENZA AL VOLO" DE LA REPUBLIQUE ITALIENNE ET L'ORGANISATION EUROPEENNE POUR LA SECURITE DE LA NAVIGATION AERIENNE "EUROCONTROL"

Le Ministere de la Defense-Air "Ispettorato delle Telecomunicazioni e dell' Assistenza al Volo" et l'Organisation Europ6enne pour la S6curit6 de la Navigation Aerienne "Eurocontrol", ci-spres d6nomme.e "I'Organisation", agissant par l'interm6diaire de sa Commission en application de ('Article 12 de la Convention Internationale pour la S6curit6 de la Navigation A6rienne, signe a Bruxelles, le 13 d6cembre 1960;

107

Section 111 — Treaties Considerant qu'il est souhaitable d'etablir une cooperation visant å accroitre la Securite Aerienne; Sont convenus des dispositions suivantes: ARTICLE 1

Les signataires faciliteront entre eux les echanges d'informations relatives au contreile de la circulation aerienne en vue d'augmenter l'efficacite de leurs etudes et de leurs dispositions en la matiere. 2 A cet effet, les Parties contractantes organiseront des reunions techniques entre experts, dont l'objet et la periodicite seront fixes d'un commun accord. ARTICLE

ARTICLE 3 Le present accord ne comporte aucune implication finansiere pour les Parties. Dans le cas oü certaines informations ou prestations qui comporteraient des engagements financiers seraient explicitement demandees par une Partie ou l'autre, les diss engagements seraient regles par des accords speciaux etablis conformement aux dispositions de l'Article 13 de la Convention. ARTICLE 4 Les informations echangees en vertu du present accord ne peuvent ni otre communiquees h des tiers ni faire l'objet d'une utilisation å des fins commerciales. L'application et l'utilisation desdites informations ne pourront entrainer ni la responsabilite de la Partie qui en est å l'origine, ni creer des charges finansieres a la Partie qui les utilisera ou les appliquera, sauf dispositions convenues en application de l'article 3 du present accord.

5 Outre les reunions d'experts, les parties interessees se reuniront å l'echelon directorial aussi souvent qu'elles l'estimeront necessaire, pour discuter de probli mes specifiques et ainsi mieux atteindre le but indique å l'article premier du present accord. La date et le lieu des reunions seront convenus par le Directeur General d'Eurocontrol et par l'"Ispettore" de 1—Ispettorato delle Telecomunicazioni e dell'Assistenza al volo"—Ministere de la Defense—Air. ARTICLE

ARTICLE 6 Les communications en vue d'aboutir å la cooperation souhaitable, s'etabliront entre le Directeur General d'Eurocontrol et par l"'Ispettore" de l''Ispettorato delle Telecomunicazioni e dell'Assistenza al volo"—Ministere de la Defense-Air.

ARTICLE

Le present accord restera en vigueur pendant deux ans, avec possibilite de tacite reconduction, a moms que dune des Parties ne desire le resilier. La resiliation du present accord interviendrait avec un preavis de six mois. 108

BILATERAL AGREEMENTS ARTICLE 8 Le present accord entrera en vigueur le jour de sa signature. En foi de quoi, les soussignes, dement autorises å cet effet, ont signe le present accord. Fait å Rome le 20 janvier 1966 en deux exemplaires.

Translation by Eurocontrol: Agreement between the Ministero Difesa—Aeronautica Ispettorato Telecomunicazioni ed Assistenza 01 Volo and the European Organisation for the Safety of Air Navigation "Eurocontrol" The Ministero Difesa—Aeronautica Ispettorato Telecomunicazioni ed Assistenza Al Volo and the European Organisation for the Safety of Air Navigation "Eurocontrol" acting through its Commission, considering that it is desirable to establish co-operation with a view to increasing air safety have agreed as follows: ARTICLE 1 The signatories shall facilitate reciprocal exchanges of technical information relating to air traffic control operations with a view to increasing the efficiency of their respective studies and arrangements in this field. ARTICLE 2 To this end, the contracting parties to this agreement shall organize technical meetings between their technical experts. The frequency and purpose of these meetings shall be determined by common agreement. ARTICLE 3 This agreement shall not entail any financial implication for the Parties. In cases where specific information or services explicitly requested of one Party by the other entail financial commitments these shall be settled by means of special agreements. ARTICLE 4 The information exchanged in pursuance of the present agreement may not be used for commercial purposes and, wherever used and applied, shall neither confer liability on the Party from whom such information originates nor entail financial implication for the Party using or applying it except as provided in Article 3 above. ARTICLE 5 In addition to meetings between experts the Parties concerned shall organise meetings at directorial level, as often as is deemed necessary, to better achieve the aims indicated in Article 1 and to discuss specific problems. The time and place of the meetings shall be agreed upon by the Director General of Eurocontrol and the Ministero Difesa—Aeronautica Ispettorato Telecomunicazioni ed Assistenza Al Volo. ARTICLE 6 The channel of communication to be established and maintained for achieving the desired co-operation shall be the Director General of Eurocontrol and the Ministero Difesa—Aeronautica Ispettorato Telecomunicazioni ed Assistenza Al Volo.

109

Section 111 — Treaties ARTICLE 7 The present agreement shall remain in force for a period of two years and may be tacitly renewed. The agreement may be denounced by one of the two Parties on six months' notice. ARTICLE 8 The present agreement will come into force on the day on which it is signed. In witness whereof the undersigned having been duly authorized, sign the present agreement. Done at Rome on 20th January 1966 in two copies.

B. ACCORD ENTRE LA DIRECTION GENERALE DE L'AERONAUTIQUE CIVILE DU PORTUGAL ET L'ORGANISATION EUROPEENNE POUR LA SECURITE DE LA NAVIGATION AERIENNE "EUROCONTROL" Considerant qu'il est souhaitable d'etablir une cooperation visant a accroite la securite aerienne, La Direction Generale de 1'Aeronautique Civile du Portugal et l'Organisation Europeenne pour la Securite de la Navigation Aerienne (Eurocontrol), ci-apres denommee 1"'Organisation" agissant par l'intermediaire de sa Commission en application de l'Article 12 de la Convention Internationale pour la Securite de la Navigation Aerienne, signee a Bruxelles, le 13 decembre 1960, Sont convenues des dispositions qui suivent: ARTICLE 1 Les Parties Contractantes faciliteront entre elles les echanges d'informations relatives au contröle de la circulation aerienne, en vue d'augmenter I'efficacite de leurs efforts respectifs en la matiere. A cet effet, elles organiseront des reunions techniques entre experts dont la periodicite et l'objet seront fixes d'un commun accord. ARTICLE

2

La present accord ne doit normalement entrainer aucune implication financiere pour les Parties. Au cas oh it en serait autrement, pour l'echange de certaines informations, des accords speciaux seront etablis conformement aux dispositions de l'Article 13 de la Convention. ARTICLE 3 Les informations echangees en vertu du present accord ne peuvent faire l'objet, sauf dispositions contraires, d'aucune communication a des tiers, ni d'aucune utilisation a des fins commerciales. ARTICLE 4 Sauf dispositions contraires, l'application et l'utilisation des informations echangees en vertu du present accord, ne pourront entrainer aucune responsabilite de la Partie qui est å l'origine desdites informations. ARTICLE 5 Outre les missions d'experts, les Parties interessees se reuniront a l'echelon directorial, aussi souvent que necessaire, pour oeuvrer dans le meme sens et dis-

110

BILATERAL AGREEMENTS cuter de problemes specifiques. La date et le lieu des reunions seront convenus par le Directeur General d'Eurocontrol et par le Directeur General de l'Aeronautique Civile du Portugal. ARTICLE 6 Les communications, en vue d'aboutir å la cooperation souhaitable, s'etabliront normalement entre le Directeur General d'Eurocontrol et le representant de la Direction Generale de l'Aeronautique Civile du Portugal å designer par son Directeur General. ARTICLE 7 Cet accord restera en vigueur pendant deux anså partir de la date de sa signature et peut etre tacitement prolonge, å moins que l'une des Parties ne desire le resilier ou formuler un amendement. La resiliation du present accord pourra intervenir avec un preavis de six mois. En foi de quoi les soussignes, düment autorises ä cet effet, ont signe le present accord. Fait å Lisbonne, le six juillet 1966, en deux exemplaires.

C. AGREEMENT BETWEEN THE MINISTRY OF TRANSPORT AND OF NATIONALIZED ENTERPRISES OF THE REPUBLIC OF AUSTRIA AND THE EUROPEAN ORGANIZATION FOR THE SAFETY OF AIR NAVIGATION (EUROCONTROL)

The Ministry of Transport and of Nationalized Enterprises of the Republic of Austria and The European Organization for the Safety of Air Navigation (Eurocontrol) acting through its Commission in pursuance of Article 12 of the International Convention relating to co-operation for the safety of air navigation, signed in Brussels on 13th December, 1960; Considering that it is desirable to establish co-operation with a view to increasing air safety, Have agreed as follows: ARTICLE 1 The Contracting Parties shall facilitate reciprocal exchanges of information relating to air traffic control, with a view to increasing the efficiency of their respective efforts in this field, it being understood however that these exchanges will be made solely within the limits of the laws and regulations in force and will exclude any information either of a military nature or relevant to the security or sovereignty of a State. ARTICLE 2 To this end, they shall organize technical meetings between experts, the frequency and purpose of which shall be determined by common agreement. ARTICLE 3 This agreement should not, normally, entail any financial implication for the Contracting Parties concerned. Should any such implication result, for the exchange of certain information, special agreements would have to be concluded in accordance with Article 13 of the "Eurocontrol" International Convention relating to co-operation for the safety of air navigation.

111

Section III — Treaties ARTICLE 4 Except where otherwise provided, information exchanged in pursuance of the present agreement may not be disclosed to a third party nor used for commercial purposes. ARTICLE S Except where otherwise provided, the application and utilization of information exchanged in pursuance of the present agreement, shall confer no liability on the Contracting Party from whom such information originated. ARTICLE 6 In addition to the visits of experts, the Contracting Parties concerned shall meet at directorial level as often as is deemed necessary for the purpose of mutual orientation and the discussion of specific problems. The time and place of such meetings shall be agreed upon by the Director General of Eurocontrol and the Delegate nominated by the Minister of Transport and of Nationalized Enterprises. ARTICLE 7 The channel of communication for achieving the desired co-operation will normally be between the Director General of Eurocontrol in Brussels and the Delegate nominated by the Minister of Transport and of Nationalized Enterprises. ARTICLE 8 The present agreement shall remain in force for a period of two years, and may be tacitly renewed, unless one of the Contracting Parties concerned wishes to rescind it or suggest an amendment. Denunciation of this agreement may take place on six months' notice. ARTICLE 9 The present agreement shall come into force on the day on which it is signed. In witness whereof, the undersigned having been duly authorized, sign the present agreement. Done at Vienna on 30th November 1967 in two copies.

112

Section IV Inter-governmental Organizations

Chapter 10

General Organizations International Civil Aviation Organization Summary: I.

THE COUNCIL (SIXTIETH TO SIXTY-SECOND SESSIONS)

A. Political and Legal Questions: (1) Amendments to Rule 21(a) and (b) and Rule 42(a) of the Rules of Procedure for the Council; (2) Trilingual text of the Chicago Convention; (3) Establishment of a prohibited area by Spain in the vicinity of Gibraltar; (4) Problems of nationality and registration of aircraft operated by air transport agencies; (5) Limits of liability for passengers under the system established by the Warsaw Convention as amended by The Hague Protocol; (6) New definition of "aircraft"; (7) Participation of ICAO in programmes for the exploration and use of outer space; (8) Structure and functions of the Secretariat: proposed establishment of a "Joint Inspection Unit. B. Air Navigation: (1) Amendments to Annexes (except Annex 9); (2) Amendments to Procedures for Air Navigation Services; (3) Amendments to Regional Supplementary Procedures; (4) Code of practice for standardizing the expression of notions or concepts relevant to the description of a flight path; (5) Resolution concerning the use of international airports by aircraft engaged in general aviation activities; (6) Convening of Panels and action on their reports under delegated authority of the Air Navigation Commission; (7) Establishment and use of Secretariat Study Groups in the air navigation field. C. Air Transport: (1) Types of co-operative agreements and arrangements between States, airlines, or States and airlines; (2) Measures to develop air passenger travel in the African region; (3) Access of general aviation to international airports. D. Joint Financing: (1) Agreement on the Joint Financing of the North Atlantic Ocean Stations; (2) Agreement on the Joint Financing of Certain Air Navigation Services (i) in Greenland and the Faeroe Islands, and (ii) in Iceland. E. Technical Assistance: Aviation Training in Africa. II. LEGAL COMMITTEE AND ITS SUBCOMMITTEES A. Sixteenth Session of the Legal Committee: (1) Election of Officers of the Legal Committee; (2) Amendments to the Rules of Procedure of the Legal Committee; (3) General programme of work of the Legal Committee; (4) Discussions and decisions on substantive matters; (5) Action of the Council. B. Meetings of Subcommittees of the Legal Committee in 1967. 115

Section IV — Inter-governmental Organizations III. RELATIONS WITH OTHER INTERNATIONAL ORGANIZATIONS A. Relations with the United Nations: Co-ordination of administrative matters (Joint Inspection Unit). B. Relations with the World Meteorological Organization. C. Relations of ICAO with other international organizations with respect to the exploration and use of outer space.

I. THE COUNCIL A. POLITICAL AND LEGAL QUESTIONS

1. Amendments to Rule 21(a) and 21(b) and Rule 42(a) of the Rules of Procedure for the Council The Council held its 60th to 62nd Sessions in 1967.1 Rule 21 of the Rules of Procedure of the Council2 deals with the calling of an extraordinary session of the Council, the change of the opening date of an ordinary session, and the convening of a special Council meeting during the "Committee phase" of a Council session. The required majorities of 11 and 14 members of the Council, respectively, reflected the composition of the Council (comprising 21 members at the time of the adoption of that Rule). Meanwhile the membership of the Council has been increased to 27. Consequently, on 10 November 1967 (6th Meeting of its 62nd Session), the Council amended paragraph (a) of Rule 21 by substituting the words "with the approval of at least a majority of the members of the Council" for the words "with the approval of at least 11 members of the Council"; and in paragraph (b), replaced the words "without the approval of at least 14 members of the Council" by the words "without the approval of at least two-thirds of the members of the Council." At the same time, the Council corrected some errors in the Spanish version of the Rules of Procedure in order to bring them into conformity with the English and French texts. Rule 21, as amended, reads as follows: a) Between two consecutive sessions of the Council, the President, with the approval of at least a majority of the members of the Council, may call an extraordinary session or may change the date which the Council has set for the opening of the next session. No such action shall result in a Council Meeting being held on less than 14 days' notice. b) If a part of a Council session is devoted primarily to Committee meetings, the President may call such special Council meetings as he considers necessary. No such meetings shall be called on less than 7 days' notice without the approval of at least two-thirds of the members of the Council.

Rule 42, paragraph (a), No. 6 of the Rules of Procedure for the Council, lists among the privileged motions "a motion to refer the matter 1. Minutes of the 60th Session (20 February to 22 March 1967) ICAO Doc 8662, C/969; of the 61st Session (25 Aoril to 28 June 1967) ICAO Doc 8678, C/972; and of the 62nd Session (2 November to 15 December 1967) ICAO Doc 8707-C/974. 2. Doc 7559/3, Revision 3.

116

ICAO

back to a Commission, Committee or Working Group." During the 11th Meeting of the 59th Session of the Council3 it had been suggested that the expression "refer back" seemed to imply that such motion could be made only if the matter had previously been considered by a subordinate body of the Council. Such limitation, however, was believed to be impractical and contrary to the practice of the Council, and the Spanish text of that rule had no such limited meaning. After having studied the history of Rule 42 and similar rules in the Rules of Procedure for bodies of the United Nations and Specialized Agencies, the Secretary General proposed' the deletion of the word "back" from the English text of Rule 42, paragraph (a), No. 6, with a view to clarifying the situation. On 27 February 1967 (Fourth Meeting of its 60th Session) the Council approved the proposed deletion, and substituted the word "envoi" for the word "renvoi" in the French text. No change was made in the Spanish text. The Secretary General was instructed "to go through the Rules of Procedure of other representative bodies to determine whether analogous amendments were required in them." 2. Trilingual text of the Chicago Convention At the 12th Meeting of its 61st Session (14 June 1967), the Council considered the report in which the Second Working Group on the Trilingual Text had submitted a new draft protocol for the adoption of the trilingual text by a Diplomatic Conference.5 After making minor amendments to that draft, the Council decided that the amended draft "should be circulated to States as the final draft which would subsequently be presented to the Diplomatic Conference," it being understood "that the covering letter would not invite comments and would emphasize that the Council considered this type of protocol as the best solution." Accepting the invitation of the Government of Argentina, the Council decided, on 8 December 1967 (30th Meeting of its 62nd Session), to hold the Diplomatic Conference in Buenos Aires during the 16th Session of the Assembly and agreed that it should be called "International Conference on the Authentic Texts of the Convention on International Civil Aviation (Chicago, 1944) ." 3. Establishment of a prohibited area by Spain in the vicinity of Gibraltar On 11 April 1967 the Government of Spain issued a Notice to Airmen (NOTAM) establishing a prohibited area over a land and sea region in the vicinity of Gibraltar, with effect as of 15 May 1967. A further NOTAM issued on 17 April 1967 specified the exact boundaries of the land portion of that prohibited area and described its sea portion in 3. Doc 8629, C/967-11. 4. C-WP/4533. 5. For previous action of the Council in that matter see Yearbook of Air and Space Law, 1963, p. 209; Yearbook of Air and Space Law, I966, p. 190.

117

Section IV — Inter-governmental Organizations general terms. The boundaries of that portion were more clearly defined in a third NOTAM issued on 6 May 1967. The two later NOTAM's were also to come in force on 15 May 1967. The United Kingdom claimed that the prohibited area which was "in close proximity to the Gibraltar aerodrome, about 40 miles long and 20 miles wide, will affect the safety and regularity of flights by civil aircraft to and from Gibraltar" and, consequently, was in violation of Article 9, paragraph (a), of the Chicago Convention which prescribes that "such prohibited area should be of reasonable extent and location so as not to interfere unnecessarily with air navigation."a Invoking Article 54, cl. (n) of the same Convention which makes it a duty of the Council to "consider any matter relating to the Convention which any Contracting States refer to it," the United Kingdom asked the Council to examine the legality of the prohibited area established by Spain and in particular "to seek an assurance that the establishment of the prohibited area in the vicinity of Gibraltar would not interfere with any of the normal routes of access for aircraft using Gibraltar airport, and that there would be no objection to aircraft carrying out the normal emergency procedure necessary from time to time in the interest of safety."7 During the 3rd Meeting of the 61st Session (11 May 1967) of the Council, that request was changed to read as follows: "The Council, noting that the prohibited area had not been previously defined in relation to the waters included in that area until the publication of the second Spanish NOTAM of 6 May, declares that it would be a contravention of the provisions of Annex 15 to the Convention if the prohibited area were to be made effective on 15 May." During the consideration of the matter by the Council, the Representative of the United Kingdom advanced the arguments set forth below. The NOTAM of 6 May specifying the water boundaries of the prohibited area could not come into force as of 15 May 1967 since Standards 5.1.2.1. and 5.1.2.1.1. of Annex 15 provide that NOTAM be issued at least 28 days in advance of their effective date. Moreover, the establishment of the prohibited area would interfere "unnecessarily" with international civil air operations at the Gibraltar aerodrome because it would jeopardize air safety. In support of this contention the Representative of the United Kingdom gave the following examples: "The boundary of the prohibited area east of the isthmus bisects the centreline of the approach for westerly landings only 1000 yards from the runway threshold. Again, for easterly landings, the boundary of the prohibited area running north and south in Algeciras Bay seriously reduces the area available for the turn to final approach and the final approach itself." 6. Because of the restrictions placed by the Council on the distribution of the Working Papers presented to it by Spain and the United Kingdom, as well as on additional information given by these countries to representatives on the Council the present summary of the request by the United Kingdom and of its consideration in the Council is based exclusively on the minutes of the 1st and 4th Meetings of the 61st Session of the Council. 7. Minutes of the 2nd Meeting, p. 17.

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The United Kingdom claimed also that the prohibited area extended over international and territorial waters, the delimitation of which "has not been agreed between the two governments [of the United Kingdom and Spain] nor pronounced upon by any competent bodies." While the United Kingdom admitted that the creation of prohibited areas under Article 9 of the Chicago Convention is a legitimate exercise of the sovereign powers of any State over its air space, they felt that each Contracting State had the right to challenge the establishment of a prohibited area "on the basis that the area [is] not of reasonable extent or location" or "interfere[s] unnecessarily with air navigation." The Representative of Spain argued that the Council was not to concern itself with the matter brought before it by the United Kingdom, for the substance of the United Kingdom's request was a political issue which should be solved by negotiations between Spain and the United Kingdom under the United Nations Assembly Resolution No. 2231 (XXI) of 20 December 1966. More generally, he recalled that the Council had already decided in a previous case that it had no jurisdiction in matters of a political nature.8 Turning to the substantive issue, the Representative of Spain submitted that where there is a conflict of interests between national security and air navigation, it is for the State whose national security is involved to decide whether and where to establish a prohibited zone. The drafting and spirit of Article 9 of the Chicago Convention, he said, recognized the fact that the establishment of such zones may, of necessity, interfere with air navigation: the provision was designed merely to prevent "unnecessary interference." However, since the decision as to what is necessary for its national security and public safety lies exclusively with the State concerned, the Representative of Spain claimed that Council had no right to examine whether the action resulting from that decision does unnecessarily interfere with air navigation. He stated: I mention the importance of the word "unnecessarily," which was decided upon and used precisely to show that if it does become necessary, interference with air traffic is permissible, because what the article recommends is that there be no unnecessary interference. It may then be asked: Who is the judge of military necessity or national safety of a state? Can it be accepted that another State or other States take upon themselves the authority to review or judge whether or not a given State is experiencing military necessity which leads it to take such 8. The Representative of Spain referred specifically to the case of a complaint lodged by Israel in 1956, with respect to which he quoted the following passage from the Annual Report of the Council to the Assembly (Doc 7788 A 11-P/1 p. 49): "The Israeli delegation too sought the help of the Assembly in regard to the situation in the Middle East, maintaining that certain measures being taken by Arab States with respect to aircraft en route to and from Israel were infractions of the Convention that should have been reported by the Council under Article 54(j). After a brief discussion, the Rules of Procedure were invoked to stop debate on the ground that although the situation had technical aspects, it was part of a larger political problem outside the purview of ICAO." For another instance when the ICAO Council refrained from action (on the proposal of the United Kingdom) because the matter submitted to it was of a political nature, see A.F.D.t., 403 (1957). The issue then before the Council was the impossibility of Czechoslovakia's providing the air navigation facilities prescribed by the Regional Plan because of the embargo placed by the Government of the USA on the export of the required equipment, which was available only in that country.

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Section IV — Inter-governmental Organizations action? In order to evaluate necessity it would be necessary to know the State's reasons, its circumstances, and whether they are related to military plans. I do not believe any organization can ask a given State, "What are your military plans? What are your defence requirements, so that I may tell you whether the establishment of a prohibited area is well founded or not?" I do not believe it can be claimed that this is provided for by the Convention. It may be thought that the Convention is not right, but it is clear.

Additionally, the Representative of Spain affirmed that, as a matter of fact, the prohibited area did not at all interfere with civil aviation at Gibraltar since spokesmen for two British airlines (BEA and BUA) had declared in statements disseminated by Reuters: "British civil airlines will technically be able to land and take off at Gibraltar without violating the new zone which Spain has prohibited to all foreign aircraft. Diplomatic sources said today this has become clear in a note to pilots issued by the Spanish authorities at Seville responsible for air traffic control in the region. The prohibited area skirts around the Gibraltar airfield, but leaves enough room for aircraft to manoeuvre for landing or take-off without infringing the forbidden zone...." Finally, the Spanish representative claimed that the ICAO Council had no jurisdiction in the matter before it since the Gibraltar aerodrome is a military aerodrome which, according to the European Regional Plan, can be used by civil aircraft "only in case of emergency or with prior permission." Its military character, he pointed out, also is evidenced by the fact that the United Kingdom does not apply Article 15 of the Chicago Convention to that aerodrome while it would be obliged to do so if the latter were a civil aerodrome.° 10 Regarding the date of coming into force of the various NOTAMs, he declared that they were all to come into force on 15 May since the NOTAM of 17 April and 6 May were only supplementary to the NOTAM of 11 April, which had established the prohibited zone, and which had complied with the provisions of Annex 15.11 9. The first sentence of para. 1, Article 15, reads as follows: "Every airport in a Contracting State which is open to public use by its national aircraft shall likewise, subject to the provisions of Article 68, be open under uniform conditions to the aircraft of all the other Contracting States." 10. In this connection the Representative of Spain referred to a communication from the United Kingdom which said, in part: "I have the honour to inform you that since Gibraltar is a military airfield, its use by civil aircraft may at any time be limited or terminated when military considerations so require." 11. On the question of past experience with the determination of the implementation date of supplementary NOTAMs, the Chief, ICAO Aeronautical Information Services, gave the following information according to the minutes of the 2nd Meeting (61st Session) of the Council: "It was not unusual to have one NOTAM amended or supplemented by another, but he thought it would be unusual to have this happen with NOTAMs announcing the establishment of prohibited areas. Normally these were quite explicit and required no subsequent clarification. Since he had the floor, he would point out that there was a provision of Annex 15 that had not been complied with in this case—paragraph 5.1.2.1.2, prescribing a common effective date system. Under this system, the effective date of the first NOTAM on the Algeciras prohibited area would be 1 June, the effective date of the second 29 June.... Very often when there was an amending NOTAM the original implementation date was maintained. In fact, the 28-day requirement was by no means always met even with NOTAMs that were not amended because this requirement was qualified in the Standard by the clause 'unless operational considerations make it impracticable'."

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He added that Spain had been very careful in determining the limits of the water portion of the prohibited area so as to confirm that area to "the absolute minimum required for security reasons." There was no doubt in the mind of the Spanish authorities that the whole sea portion of the prohibited area was within Spanish jurisdiction because Spain has ceded to the United Kingdom "the Rock of Gibraltar but had not ceded any territorial waters."12 In reply, the Representative of the United Kingdom stated that while it was true that civil aircraft could use the Gibraltar aerodrome only in an emergency, or with prior permission, such permission is "freely given" and "never refused." In fact, he said, airlines of five Contracting States, including Spain, have traffic rights in Gibraltar, and "about 250 movements of civil aircraft [take] place monthly at the Gibraltar airport." Several representatives of the Council" expressed the view that the question raised by the United Kingdom was of a political nature and, therefore, outside the jurisdiction of the Council. Other representatives wanted the Air Navigation Commission to examine, and to report on, the question of whether the establishment of the prohibited area would in fact "unnecessarily interfere with civil aviation." Since the request of the United Kingdom was not supported by any representative on the Council, the Representative of Australia put forward the following proposals:14 (i) that the Council instruct the Secretariat to provide full information concerning operating procedures in use at Gibraltar, including a plan of the area in sufficient detail, together with details of the civil traffic using the aerodrome and (ii) that the Air Navigation Commission be asked to make an assessment as to the effect of the prohibited area on the operations of civil air traffic at Gibraltar airport, using the material provided by the Secretariat, and advise the Council, as a matter of urgency, as to the operational effects of the matter.

The proposal was seconded by the Representative of the United Kingdom. The Representative of Spain invoked Article 52 of the Convention under which "[d]ecisions by the Council require approval by a majority of its members," i.e., 14 affirmative votes. The Representative of Italy requested that the two parts be voted on separately. The vote on part (i) was 8 for, 7 against, and 12 abstentions, of which 9 were recorded (the Representatives of the Congo [Brazzaville], the Czechoslovak Socialist Republic, the Federal Republic of Germany, India, Japan, Kenya, the Malagasy Republic, the Kingdom of the Netherlands, and Tunisia). It did not carry, therefore, and part (ii), being directly related to it, failed automatically.l 5 12. See Minutes of the 3rd Meeting, p. 36. 13. Namely, those of Argentina, Brazil, Colombia, Congo (Brazzaville), Costa Rica, Czechoslovakia, Federal Republic of Germany, and Malagasy Republic. 14. Minutes of the 3rd Meeting, para. 1. 15. Ibid.

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Section IV — Inter-governmental Organizations After the vote on the Australian proposal, further exchanges of views took place during the 4th Meeting of the 61st Session (13 May 1967) of the Council, but no formal agreement or decision was reached. Therefore, the President of the Council pointed out, the subject remained on the Work Programme of the Council for the Session (61st) . The President stated that "at any time between now and the end of June any Council Member could request that it be placed on the order of business [of a meeting of the Council]."1ß No such request has been forthcoming. 4. Problems of nationality and registration of aircraft operated by air transport agencies At the 6th, 9th, 10th, 11th, 14th, 15th, 16th, and 17th Meetings of its 62nd Session, the Council considered the Report of the Legal Committee17 on Problems of Nationality and Registration of Aircraft Operated by International Agencies (interpretation and application of the last sentence of Article 77 of the Chicago Convention). The Council agreed with the advice and conclusions of the Committee and on 14 December 1967 adopted, with several amendments, a draft resolution prepared by the Secretariat on the basis of these conclusions. The resolution as adopted is reproduced hereunder, p. 123. At the same time the Council: (a) decided that it would apply the procedure set out in the resolution to any specific plans for joint or international registration presented to it, with appropriate information, by the States concerned; (b) asked the Secretary General to inform the Organisation Commune Africaine et Malgache (successor to the Union Africaine et Malgache de Cooperation Economique) and the United Arab Republic of the action it had taken, and to invite their attention to paragraph 10 of the Legal Committee's Report;18 (c) agreed that the resolution should be published as a trilingual document in a booklet in which the text of decisions taken in application of it could later be included; (d) asked the Secretariat to prepare for the next session, for consideration by the Air Navigation Commission in the first instance, a paper indicating what amendments to Annex 7 they believed necessary to bring that Annex into accord with the spirit of the resolution. 16. Minutes of the 4th Meeting, para. 7. 17. See p. 148 for the discussions in and the report of the Legal Committee. 18, Paragraph 10 of the Report reads as follows: "The States constituting the international operating agency concerned would file with the Council appropriate information relating to their plan for joint registration or international registration of the aircraft operated by the agency. This would be necessary for the purpose of ascertaining, in accordance with paragraph 12(2) below, whether the plan met the criteria specified in paragraph 8 above. It is also noted that Article 83 of the Chicago Convention requires that aeronautical agreements and arrangements made by any Contracting State shall be forthwith registered with the Council." Paragraph 12(2) aforementioned is the basis of the eighth clause of the resolution of the Council; paragraph 8 lists the basic criteria specified in Appendix 2 to that resolution.

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ENGLISH TEXT OF THE RESOLUTION ADOPTED ON

14

DECEMBER

1967

RESOLUTION ADOPTED BY THE COUNCIL ON NATIONALITY AND REGISTRATION OF AIRCRAFT OPERATED BY INTERNATIONAL OPERATING AGENCIES* THE COUNCIL

CONSIDERING the provisions of Article 77 of the Convention on International Civil Aviation, the last sentence of which reads: "The Council shall determine in what manner the provisions of this Convention relating to nationality of aircraft shall apply to aircraft operated by international operating agencies." the Report on this subject of the Legal Committee, Doc 8704-LC/ 155, 22/9/67, Annex C

CONSIDERING

CONSIDERING

the conclusions of the Legal Committee as expressed in the said

Report that, without any amendment to the Convention on International Civil Aviation, the provisions of the Convention can be made applicable, by a determination of the Council under said Article 77, to aircraft which are not registered on a national basis, such as aircraft "jointly registered" or "internationally registered" (which concepts are defined in Appendix 1 hereto) subject, however, to fulfilment of certain basic criteria, which have been established by the Council

AGREEING

that a determination by the Council pursuant to, and within the scope of, said Article 77 of the Convention, and made in accordance with the procedures indicated below, will be binding on all Contracting Statesla and that, accordingly, in the case of aircraft which are jointly registered or internationally registered and in respect of which the basic criteria which have

HOLDING

* Footnotes 19-29 are the Editor's. 19. The status, scope, and effect of the "determination" are clarified by the following statements set forth below, which were made during the discussion of the draft resolution in the Council. Concerning whether such determination would be appealable, the Director of the Legal Bureau offered the following opinion at the 6th Meeting: "This point had been gone into by various bodies that had studied the subject and their conclusion had always been that a determination was a determination, not a suggestion or recommendation, and, as the etymology of the word indicated, conclusive. This did not mean, however, that there could be no appeal from it. Any action taken by the Council under the Chicago Convention could be appealed. If a Contracting State was dissatisfied with a Council determination, it would presumably have recourse to Article 84 of the Convention with a right of eventual appeal to the International Court of Justice." He also pointed out (6th and 9th Meetings) that Article 77 gives the Council the power to "cancel, modify or completely reverse" a determination made under that Article. In case the States concerned would not comply with an amendment adopted later on by the Council, the following alternative actions were suggested (9th Meeting): "Their aircraft might be refused permission to enter the territory of another Contracting State because of their noncompliance with the Council's decision. This would be a dispute under the terms of Article 84, and the appeal provisions of that Article would apply. If, however, a dispute situation did not arise but the States constituting the agency still considered the Council's decision prejudicial, all they could do would be to bring their difficulty before the Council under Article 54(n) and they would have to abide by whatever conclusion the Council reached." The same appears to apply where any of the component States of the agency cease to meet a criterion established by the Council. Moreover, if "any of the States constituting an international operating agency failed to carry out the obligations accepted in their plan for joint or international registration, the action taken would be that specified in the Convention for ensuring fulfilment of the responsibilities of a State of registry." Although the point had been raised by several Representatives, particularly during the 6th Meeting, the Council did not consult Contracting States before adopting the above resolution.

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Section IV — Inter-governmental Organizations been established by the Council are fulfilled, the rights and obligations under the said Convention would be applicable as in the case of nationally registered aircraft of a Contracting State that the process of determination contemplated in said Article 77 shall include the application of the basic criteria which have been established by the Council to each particular plan for joint or international registration which might be brought before it, with appropriate and definite information relating to and describing such plan, by States constituting the international operating agency concerned

RESOLVES

with regard to the establishment of the basic criteria referred to in the three preceding paragraphs, as follows: (a) In cases of joint registration, to adopt the basic criteria specified in Part I of Appendix 2 hereto; (b) In cases of international registration, to be guided by Part II of Appendix 2 hereto.

DECIDES,

in connection with the foregoing process of determination, that, while the Council has discretion to arrive at such determination as it deems appropriate, in the case of joint registration described in Appendix 3 hereto, there should be little problem in regard to the fulfilment of the basic criteria specified in Part I of Appendix 2 hereto and, therefore, a determination by the Council in such or similar cases should merely be formal and could automatically be given,

NOTES,

also that other cases of joint registration and all cases of international registration may well require different approaches,

NOTES

that, upon completion of the process of determination as specified above for a particular plan which in the opinion of the Council would satisfy the basic criteria specified in Appendix 2 hereto, the manner of application of the provisions of the Convention relating to nationality of aircraft be as follows.20

DECIDES

(1) In the case of joint or international registration, all the aircraft of a given international operating agency shall have a common mark, and not the 20. The wording of this clause is based on an amendment proposed by the U.S. Representative and reworded by the Director of the Legal Bureau at the 10th Meeting of the Council. In this connection the following exchange of views took place: the Representative of France "saw some advantage in the wording suggested by the Director of the Legal Bureau because some time— perhaps quite a considerable time — could elapse between the moment the process of determination was completed and the moment when the implementation of the plan could begin, and he believed that the conditions set out in the next three numbered clauses should be considered applicable as soon as the determination had been made." The Representative of the Congo (Brazzaville) said that "he would be pleased if the Representative of the United States could accept the suggestion of the Director of the Legal Bureau because it overcame the one difficulty he had had with the original text, namely, from what time were the provisions of the Convention relating to nationality of aircraft to be applied in the manner described in the three numbered clauses." Agreeing with the previous speaker, the Representative of Tunisia thought that "the criteria drawn from the Legal Committee's report were absolute, and that once they had been established, all that it would be necessary for such a group of States to do would be to solemnly declare that they would respect the criteria . . He had assumed the Council would do the same with declarations of intent to abide by the criteria for joint registration, leaving experience to show whether the States constituting the operating agency were doing so." The President thought that "the Council would have to do more than that. It would have to examine each plan for joint registration submitted to it to determine whether that plan met the criteria."

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nationality mark of any particular State Z1 and the provisions of the Convention which refer to nationality marks (Articles 12 and 20 of the Convention) and Annex 7 to the Convention shall be applied mutatis mutandis.

(2) Without prejudice to the rights of other Contracting States as provided for in C of Appendix 2 hereto and in Note 2 therein, each such aircraft shall, for the purposes of the Convention, be deemed to have the nationality of each of the States constituting the international operating agency.22 21. The compulsory use of a common mark and the interdiction of the use of a nationality mark gave rise to a debate during the 10th Meeting. The Representative of Australia defended this arrangement by stating that the use of a common mark was a fundamental feature of the system of joint registration developed by the Legal Committee and that it would be very dangerous to make it optional. If the Council did so, "it might as well send the whole subject back to the Committee." He was supported by the Representatives of France, the Congo (Brazzaville), Sweden, and Lebanon. The last stated that the clause in question "was the cornerstone of the system of joint operation developed by the Legal Committee, the symbol of the assumption by the States constituting the operating agency of the responsibilities of the State of Registry undet Chapter III of the [Chicago] Convention." Similarly, considering the common mark as a "fundamental feature of the system," the Representative of France declared: "Though on'y a sign, the common mark [is] a symbol of the international character of the agency. It [is] common knowledge that those who were not very enthusiastic about the whole exercise on Article 77 had expressed the fear that the solidarity of a group constituting an international operating agency would be more apparent than real. There could be no room for doubt, therefore, that this was joint registration and the aircraft of an international operating agency should bear one mark, a common mark." In view of the foregoing, it is submitted that the answer is negative to the question raised by the Representative of Italy, whether nationality marks may be used under "other schemes" of joint operation contemplated in the introductory words of Appendix 3 to the resolution. 22. The Representative of the United Kingdom had proposed to introduce the following new clause between Clauses (2) and (3): "In the case of joint registration, the functions of a State of registration under the Convention (and, in particular, the issue of certificates of registration and airworthiness and of licences for the operating crew) shall be performed by the State which maintains the joint register or the relevant part of the joint register pertaining to a particular aircraft. In any case, the exercise of such functions shall be done on behalf of all the States jointly." This text was taken from paragraph (e) of Appendix (Annex) 3 of the draft resolution and "the reason he was proposing its introduction was that the determination did not stipulate by which State the functions of the State of Regisry under the Convention, with the exception of Articles 25 and 26 which were specifically mentioned in Clause (3), were to be performed. This seemed to him an important omission." The proposal was supported by the Representatives of France and Australia who pointed out that its substance should be made of the criteria in Appendix 2, namely Criterion D. With a view to clarifying the questions of substance involved in the proposed amendment, the Director of the Legal Bureau made the following statement: "The Legal Committee's report had been examined by the technical services of the Organzation and in their comments they had asked why Articles 25 and 26 had been singled out in Clause (3) of the determination [reading as follows: 'For the application of Articles 25 and 26 of the Convention the State which maintains the Joint register or the relevant part of the joint register pertaining to a particular aircraft shall be considered to be the State in which the aircraft is registered'] and no mention made of other articles (for example, Article 30) that were far more important for air navigation purposes. The proposal of the Representative of the United Kingdom was in line with the criticism by the technical services, and it could not be denied that the State issuing the certificate of registration was the only authority that could issue the certificate of airworthiness and licences for the operating crew." Opposing the amendment, the Representative of Tunisia remarked "that to give the status of a criterion to one feature of one plan for joint registration and thus to make it applicable to other plans — plans for international as well as for joint registration — that had not yet been studied was to go beyond the subject the Council was supposed to be considering." The Representative of the Congo (Brazzaville) asked "how this particular criterion could be applied to international registration; would the international organization with which the aircraft would be registered have to pass on to a State the functions of a State of Registry under the Convention? The merit he saw in the Legal Committee's report was that it tried to avoid prejudging plans for joint or international registration that it had not considered. The Committee had simply codified the criteria it considered fundamental and necessary; it had not listed all the criteria it could think of, because this could make

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Section IV — Inter-governmental Organizations (3) For the application of Articles 25 and 26 of the Convention, the State which maintains the joint register or the relevant part of the joint registere3 pertaining to a particular aircraft shall be considered to be the State in which the aircraft is registered, and that: (1) This Resolution applies only when all the States constituting the international operating agency are and remain parties to the Chicago Convention.24 (2) This Resolution does not apply to the case of an aircraft which, although operated by an international operating agency, is registered on a national basis.23

DECLARES

APPENDIX 1 For the purpose of this Resolution —the expression "joint registration" indicates that system of registration of aircraft according to which the States constituting an international operating agency would establish a register other than the national register for the joint registration26 of aircraft to be operated by the agency, and —the expression "international registration" denotes the cases where the aircraft to be operated by an international operating agency would be registered not on a national basis but with an international organization having legal personality, whether or not such international organization is composed of the same States as have constituted the international operating agency.

joint registration more difficult." Therefore, the Representative of the United Kingdom altered his proposal, stating that "after listening to the discussion, he thought it would be better to make the clause a separate criterion or an addition to criterion B, but because he realized that the resolution and its annexes represented a very fine compromise, which had been reached with difficulty, he would be content to have it in a footnote opening with the words 'in connection with B above'." The proposal so amended was adopted by the Council. 23. The Representative of the United Kingdom raised the question "whether it would be necessary, in a case of international registration, for the Council to make another determination for the purpose of the application of Articles 25 and 26. If so, it might be necessary or desirable to add another clause." The Director of the Legal Bureau answered as follows: "If an aircraft were registered with an international organization like ICAO, for example, that organization might either perform the functions of the State of Registry under Articles 25 and 26 itself or designate a particular State to do so on its behalf, but in neither case would there be any question of an international operating agency. An international operating agency was a body with legal personality whose function was to operate air services. An international organization could have executive-type aircraft for its own use, but it would not be a body operating international air services. There would probably be very few cases of international registration. It could take place if the States constituting an international operating agency decided to register their aircraft with the central office of the agency instead of in a joint or national register. Then Annex 2, paragraph II, would apply, but not Clause (3) of the determination." 24. This clause, introduced by the Council, settles the question in line with the findings of the Expert Panel, and the majority of the Subcommittee; it had not been agreed upon specifically by the Legal Committee. For the discussion of this point in the Council, see Minutes of the 6th and 10th Meetings. 25. This "savings clause" contemplates the case of aircraft operated by SAS or a similar consortium. 26. On the question of whether the aircraft would be registered in the name of the States participating in the international operating agency or in the name of the latter, the opinion was expressed at the 11th Meeting that "joint registration" means registration concurrently by all States constituting the agency. It is submitted, however, that "joint" refers to the "register" which is kept jointly by the said States, and that 1t is for these States to decide who should be shown as owner in the registry, as they also will specify what facts and other rights are to be registered.

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ICAO APPENDIX 2 BASIC CRITERIA Part I — In the case of joint registration — A. The States constituting the international operating agency shall be jointly and severally bound to assume the obligations which, under the Chicago Convention, attach to a State of registry. B. The States constituting the international operating agency shall identify for each aircraft an appropriate State from among themselves which shall be entrusted with the duty of receiving and replying to representations which might be made by other Contracting States of the Chicago Convention concerning that aircraft. This identification shall be only for practical purposes and without prejudice to the joint and several responsibility of the States participating in the agency, and the duties assumed by the State so identified shall be exercised on its own behalf and on behalf of all the other participating States. (See also Note 1 below.) C. The operation of the aircraft concerned shall not give rise to any discrimination against aircraft registered in other Contracting States with respect to the provisions of the Chicago Convention. (See also Note 2 below.) D. The States constituting the international operating agency shall ensure that their laws, regulations and procedures as they relate to the aircraft and personnel of the international operating agency when engaged in international air navigation27 shall meet in a uniform manner the obligations under the Chicago Convention and the Annexes thereto. Part II — In the case of international registration the Council, in arriving at its determination, shall be satisfied that any system of international registration devised by the States constituting the international operating agency gives the other member of ICAO sufficient guarantees that the provisions of the Chicago Convention are complied with. In this connection the criteria mentioned in A, C and D above shall, in any event, 27. By referring to "aircraft and personnel" and to "international air navigation," it is intended to specify that the Chicago Convention and all its Annexes are to be applied in a uniform manner by the States members of the agency only with respect to international flights of the aircraft jointly registered and to their crew on such flights. "In a uniform manner," however, does not mean that the Convention and Annexes must be applied by these States without any deviation; but these words signify that such deviations, if any, must be uniform; see statement of the Director of the Legal Bureau at the 6th Meeting. The Representative of the Federal Republic of Grmany had proposed to replace Clause D by the following: "The States constituting the international operating agency shall meet in a uniform manner the obligations under the Chicago Convention and the Annexes thereto" but did not ask for a vote after the President of the Council had made the following comment: "The wording suggested by the Representative of Germany would impose a great many more obligations upon the States constituting an international operating agency than would the original wording or his own amendment. It would mean, for instance, that all these States would have to apply in a uniform manner the provisions of Annexes 3, 10 and 11, whereas the present wording would require them to apply in a uniform manner only the provisions of the Convention and its Annexes relating to the aircraft or its crew."

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Section IV — Inter-governmental Organizations be applicable, it being understood that additional criteria may be adopted by the Council.224 Note 1: In connection with B above; in the case of joint registration the functions of a State of registration under the Convention (in particular, the issue of certificates of registration and the issue and validation of certificates of airworthiness and of licences for the operating crew) shall be performed by the State which maintains the joint register or the relevant part of the joint register pertaining to a particular aircraft. In any case, the exercise of such functions shall be done on behalf of all the States jointly. Note

2:

In connection with C above, and with reference to the undermentioned Articles of the Chicago Convention, it is noted as follows: Article 7 (Cabotage): The mere fact of joint or international registration under Article 77 would not operate to constitute the geographical area of the multinational group as a cabotage area.29 Article 9 (Prohibited Areas) and Article 15 (Airport and Similar Charges): The mere fact of joint or international registration under Article 77 will not affect the application of these Articles. Article 27 (Patent Claims): The requirement of this Article being that a given State should be not only a party to the Chicago Convention but also a party to the International Convention for the Protection of Industrial Property, it might be that, in a particular case, one or other of the States constituting an international operating agency was not a party to the latter Convention. In such case the interests of that State are not protected by the terms of Article 27. APPENDIX

3

In connection with the present Resolution the Council had before it the following scheme of joint registration, noting, at the same time, that other schemes might also be possible: 28- The Council rejected by 16 votes to 3 with 2 recorded abstentions (the Representatives of the Congo [Brazzaville] and Tunisia) a proposal by the Representative of the Federal Republic of Germany, seconded by the Representatives of Japan and the United States, to amend the last sentence of Part II of Appendix 2 by substituting "should be applicable as far as possible" for "shall, in any event, he applicable." The end of the clause, starting with the words "it being understood" was adopted at the 11th Meeting on the suggestion of the Representative of France in order to emphasize the fact that the Resolution covered "joint registration" completely but "international registration" only partially; therefore, additional conditions may be required and established by the Council when seised of a scheme of the latter type of registration. 29. Although a specific reference to Article 7 of the Chicago Convention might be considered redundant in view of the wording of Criterion C, it was maintained after the President of the Council had given the following explanation: "The cabotage question had been an important one during the discussion in the Legal Committee, because some States had feared that joint or international registration would have the effect of making the geographical area of the States constituting the international operating agency a cabotage area. This would, of course, give rise to discrimination against aircraft registered in other Contracting States, which was barred by Criterion C. The note reinforced the guarantee given in Criterion C by stating that the mere fact of Joint or international registration under Article 77 would not operate to constitute the geographical area of the multinational group as a cabotage area."

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ICAO (a) The States constituting the international operating agency will establish a joint register for registration of aircraft to be operated by the agency. This will be separate and distinct from any national register which any of those States may maintain in the usual way. (b) The joint register may be undivided or consist of several parts. In the former case the register will be maintained by one of the States constituting the international operating agency and in the latter case each part will be maintained by one or other of these States. (c) An aircraft can be registered only once, namely, in the joint register or, in the case where there are different parts, in that part of the joint register which is maintained by a given State. (d) All aircraft registered in the joint register or in any part thereof shall have one common marking, in lieu of a national mark. (e) The functions of a State of registration under the Chicago Convention (for example, the issuance of the certificate of registration, certificate of airworthiness or licences of crew) shall be performed by the State which maintains the joint register or by the State which maintains the relevant part of that register. In any case, the exercise of such functions shall be done on behalf of all the States jointly. (f) Notwithstanding (e) above, the responsibilities of a State of registration with respect to the various provisions of the Chicago Convention shall be the joint and several responsibility of all the States which constitute the international operating agency. Any complaint by other Contracting States will be accepted by each or all of the States mentioned.

5. Limits of liability for passengers under the system established by the Warsaw Convention as amended by the Hague Protocol a) FIRST SESSION AND REPORT OF THE PANEL OF EXPERTS. The "Panel of Experts on limits of liability for passengers under the Warsaw Convention and The Hague Protocol" established by the Council on 27 June 1966 (see Yearbook of Air and Space Law, 1966, p. 203) met in Montreal from 19 to 31 January 1967. It considered several schemes for increasing the limits of liability for damage to passengers. At the end of the meeting, the Panel agreed that its study of these schemes had been a preliminary one only, and that the Solutions I to IV described hereunder should be considered more closely during a second session.80 It is to be noted that Solutions II and IV, providing for a single and a double limit respectively, each stipulate two different figures, the higher of these comprising lawyers' and court costs. The reason is that the practices and procedures of courts are not uniform. In many countries, reimbursement of lawyers' and court costs are accorded to the successful plaintiff in addition to the compensation awarded and, if necessary, above the maximum compensation permitted by the Convention. In other countries, they must be paid out of the compensation awarded, although the latter can not exceed the limits established by the Convention. In a move to accommodate these countries, the Subcommittee stig30. The report on the work of the Panel during its First Session is published in PE-Warsaw, Report 1.

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Section IV — Inter-governmental Organizations gested States should have the right, at the time of ratification or adherence to the contemplated new international instrument, to notify that they choose the higher limit. It is also to be noted that Solution I, and, under given circumstances, System B of Solution IV, do not interfere with unlimited liability under the conditions specified in Article 25 of the Convention, while Solutions II and III, System A of Solution IV and, in a particular case, System B thereof, provide for absolute liability. i) Single Limit Solutions. Solution I: Maintain the Warsaw/Hague system with a high limit, possibly $75,000 plus costs. Solution H: Absolute liability, subject to specified exceptions, of $58,000 plus costs (or $75,000 inclusive of costs),31 together with either elimination of Article 25 or restriction of its scope and, further, elimination of the provisions concerning notice and ticketing, the objective being to provide adequate safeguards against breaking the limit. ii) Double Limit Solutions. Solution III: The choice might be given to the passenger and be exercisable by him at the time he buys his ticket. The choice would be between a low limit and a high limit, with an additional charge to be paid for the ticket if the higher limit were chosen. It would be necessary, as with Solution II, to provide adequate safeguards against breaking the limit under Article 25, for lack of notice or because of a defect in ticketing. Note: The Panel noted that this solution would encounter difficulties if the ticket is issued on board the aircraft, as in the case of "shuttleservices." However, the difficulty may be overcome "by a presumption that the passenger has opted for the higher limit." Solution IV: When instituting legal proceedings against the carrier under the Convention, the claimant must specify irrevocably which of the alternative System A and B below he chooses to abide by. System A would stipulate absolute liability subject to specified exceptions for damage occurring in the course of carriage by air—of twice The Hague figure, and once the claimant had chosen System A he would not be allowed to break the limit. System B provides for three eventualities: a) The claimant proves negligence of the carrier or his servants or agents and benefits by higher limits than under System A; these higher limits would be specified in the new instrument: a limit of $58,000 plus costs or $75,000 including costs, the figures of the socalled Montreal Agreement, was suggested but the Panel felt that the views of States should be ascertained. 31. These are the figures of the Interim Agreement of Montreal, May 1966.

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b) If the claimant proves that the damage was caused by a deliberate act or omission of the carrier, his servants or agents, done with intent to cause damage, the carrier's liability would be unlimited. c) If the claimant proves neither negligence nor intent, he will be entitled to damages up to the Hague limit ($16,000), on the basis of absolute liability with specified exceptions.32 The Panel also commented on what they considered to be shortcomings or deficiencies of the so-called Montreal Agreement. Referring in particular to the decisions of U.S. courts in the cases of Mertens vs. Flying Tiger Line and Lisi vs. Alitalia33 which held the carrier liable without limitation because of non-delivery of, or illegible notice on, the ticket, the Panel expressed its concern that the carrier "may also face the consequences of its contractual waiver of the defences under Article 20 (1) of the Warsaw Convention" and urged that therefore "serious consideration should ... be given to a temporary amendment of the Interim Agreement as a matter of urgency so as to relieve the carriers of the waiver provisions in the Interim Agreement." In the view of the Panel, an additional reason for remedial action was the possibility that "the contractual waiver of defence and acceptance of limits beyond those required by law, may prejudice rights of subrogation or recovery by air carriers against any third party who has caused or contributed to the damage." Moreover, the Panel pointed out that "the waiver of any defence under Article 20(1) of the Warsaw Convention leaves the air carriers liable for war risks, acts of God, force majeure or acts of third parties and seems likely to lead to a substantial increase in insurance costs which must in due course be passed on to the passengers." Finally, the Panel suggested that consideration be given (a) "to deletion from the Interim Agreement of the reference to agreed stopping places in the United States, thereby limiting the scope of the Agreement to Warsaw/Hague traffic to or from the United States," and (b) "to clarifying the applicability of the Agreement in cases where the passenger, during the course of a journey to or from the United States, alters his routing or adds points not included in his original ticket." b) CONSIDERATION OF THE PANEL'S REPORT (1ST SESSION) BY THE COUNCIL. The Report of the Panel was examined by the Council on 22 February 1967 (2nd Meeting of its 60th Session) when the main item of discussion was the date of the convening of the second session of the Panel. Some representatives favoured its early reconvening. Amongst them, the Representative of France, referring in particular to the Montreal Interim Agreement (CAB decision No. 18900), justified this approach with the following reasons: "This solution was acceptable only 32. The Panel stated the main advantages of, and objections to, each of the four solutions. They are omitted in this note in view of the action taken by the Panel at its second session, when only two solutions were retained. 33. Sec Chapter 15.

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Section IV — Inter-governmental Organizations as a makeshift to avoid the rupture of international solidarity and on condition that it be relatively short-lived. In reality there was a great gulf between the legal situation resulting from the formal agreements still in force between governments [The Warsaw Convention and The Hague Protocol] and the factual situation resulting from the agreement entered into by airlines under the aegis of IATA .... He had doubt about the validity in law of an agreement that went so far as to upset completely the equilibrium established by the Convention between, on the one hand, the protection of passengers and, on the other, the protection of the airlines." At a later stage of the debate he made it quite clear that "what he was anxious to avoid was embarking on a course that would perpetuate an arrangment that was supposed to be temporary." Expressing the views of those who felt that the second session of the Panel should be held only after a very careful preparation of its work, the U.S. Representative declared: "The solution of the problem of liability limits was not necessarily going to be hastened by advancing the date of the Panel's next meeting .... Aside from the fact that it was a very difficult matter, on which some general agreement must be reached, information from insurance companies and the courts was required for its solution, and information was very slow in coming in." The Council finally agreed: 1) That the Panel's second Session should be held some time between mid-June and mid-July, the exact dates to be fixed by the President after consulting Panel members; 2) That the Report of the First Session of the Panel ... should be sent to States and interested international organizations under cover of a letter requesting their views by 15 May 1967, on the four solutions for the problem of liability limits for passengers under the Warsaw/Hague system that were outlined in Annex A to the Report and information on economic factors pertaining to the question of limits, including an indication of any increase in insurance costs arising out of the interim agreement concluded among the airlines in May 1966. [It was understood that the letter would make it clear that any other comments the addressees might care to submit on the problem would be welcome.] 3) That a second letter should be sent to the parties directly interested in the interim agreement (i.e. the Government of the United States of America, the governments of the countries whose airlines were parties to the agreement, the International Air Transport Association and the International Union of Aviation Insurers), inviting them to consider Annex B to the Panel's Report34 for any action they might wish to take; 4) That the President of the Council is authorized to determine what was to be done with the Report of the Second Session, including its circulation to States for comment. C) THE SECOND SESSION OF THE PANEL OF EXPERTS was held in Montreal from 4 to 18 July 1967.35 The Panel agreed at this time to 34. Annex B deals with the problem of unlimited liability resulting from non-delivery of a correct ticket. 35. The report of the Panel during its Second Session is published in PE-Warsaw, Report 2.

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recommend two alternative solutions, namely Solution I and Solution II, pointing out that in their opinion Solution II was "the one most likely to gain wide acceptance." Solutions I and II would have the following common features:3" i) Notice: Article 3 of the Warsaw Convention as amended at The Hague should be so revised as to eliminate any possibility that the carrier would lose his limitation of liability because of non-delivery of ticket or notice or any other defect in the document of carriage. Reasons for this view are stated in Annex 1 to the reports? ii) Article 25: The limits of liability of the carrier should not apply in cases falling within the provisions of Article 25 of the Warsaw Convention as amended at The Hague. Even though some of the members of the Panel would have preferred, in the case of Solution II with its principle of strict liability, to eliminate or restrict Article 25 of the Warsaw Convention, nevertheless the Panel considered that Article 25 as amended at The Hague should be retained because a more restrictive formula might prevent the new protocol or convention from receiving the largest measure of acceptance. iii) Choice of Limits: Each State on or after becoming a party to the new protocol or convention would have a choice between two levels of limits and also be free to change the limit chosen. While the Panel noted that a single-limit system would be desirable in the interest of uniformity, it reached the conclusion that only a system which provided for a choice by States between two limits would be more likely to achieve world-wide application. Some members suggested a three-level system of limits. The Panel, however, thought that this would be too complicated and would be further remote from the objective of uniformity. The solution adopted by the Panel was that the new protocol or convention would provide for a basic limit, but any State would be free, at the time of ratification or later, to opt for a lower limit specified in the Convention, and to retain the right to change its choice. The lower limit would apply only in those cases where both the place of departure and the place of destination, as specified in the contract of carriage, were in a State or States which had chosen the lower limit (any agreed stopping 36. The following description and analysis are taken from Report 2, para. 7. 37. The Annex is not reproduced here. It refers to the fact that there is no unanimity amongst the courts on the legal consequences of incomplete passenger tickets. It pointed out inter alia: "It would be difficult, if not impossible, to devise a short, accurate and informative notice in the various languages and currencies of the world. Air travellers include people who are not literate. Insistence upon inclusion of a notice in a ticket to be delivered before embarkation would present obstacles to the development of modern forms of air transport, in particular, group travel and shuttle services. It was noted that some States had already dispensed with notice for non-international carriage. If notice was to be required the Panel thought that unlimited liability was not the appropriate penalty because it would be excessive and could be a source of prolonged litigation the outcome of which could depend upon such circumstances as the omission of a single word or late arrival or ticketing of a passenger. It would be better if the penalty took the form, for example, of a fine or a refund of the fare. In the Panel's opinion the passenger's right to reclaim the fare would be the most effective sanction because it would apply even where there was no accident."

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Section IV — Inter-governmental Organizations place being disregarded for this purpose). A return-trip would be regarded as two separate journeys. Other cases, such as circular journeys or "open-end journeys" also would be brought within the system, though this aspect will require further study. In this connection a suggestion was made to the effect that the level of limit should be determined by the nationality, domicile, or residence of the passenger or the State of the forum. However, the Panel considered that these criteria would be complicated, discriminatory, and unjustified and, in the latter case, would encourage forumshopping. On the other hand, the criterion adopted by the Panel, as described above, is consistent with the definition of international carriage specified in the Warsaw Convention and Article XVIII of The Hague Protocol. iv) Costs: The limits would be expressed as being exclusive of costs with an alternative figure which would include costs, as is the case with the Interim Agreement of Montreal. The law of the court seised of a case will determine whether the applicable limit would be the one which is inclusive, or which is exclusive, of costs. v) Particulars of Solutions I and II: Solution I provides a basic limit of $75,000 ($100,000 including costs), and a lower limit of $37,000 ($50,000 including costs). Solution I1 provides, in addition to the "common features" listed above, that the liability of the carrier will be absolute unless the accident was caused by war or comparable situations. He will be able to invoke Article 21 relating to contributory negligence and it will be specified that the new scheme does not prejudice the carrier's right of recourse against third parties whose acts or omissions have caused the damage. Furthermore, the limits of liability do not apply in the case specified in Article 25 of the Warsaw Convention as amended at The Hague. The limits which will apply are a basic limit of $58,000 ($75,000 including costs), and a lower limit of $33,000 ($43,000 including costs). The Panel formulated the following comments with respect to the advantages and inconveniences of either solution:38 The main advantage of Solution I is that it would require the minimum of amendment to the Warsaw system, the basic rule of liability being retained. It will provide a relatively high upper limit of $75,000 ($100,000 including costs). Such a high limit might be desirable to some States. Others may find this limit too high, considering that it would apply to all cases of air carriage to or from the territory of a State, even if it had chosen the lower limit, namely, $37,000 ($50,000 including costs), except in those particular cases where the other terminal of the journey was in a State which also had chosen the lower limit. Further, some States would find that the basic limit was much too high and the lower limit much too low to be acceptable. The main advantage of Solution II would be that the carriers would tend to settle claims out of court since very few defences would be available to them. Normally the only contestable point would be the quantum of compensation. 38. See pares. 11 and 12 of Report 2.

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ICAO Solution II with strict liability but with its limits of $58,000, or $75,000 including costs, which are lower than limits applicable in Solution I, may be expected to entail lower costs of insurance as compared with Solution I. The system of strict liability has already been accepted in the Interim Agreement of Montreal by a large number of airlines with the approval of their Governments. In this respect, Solution II would be an extension, geographically, of that Agreement. It is also noted that the rule already exists in regard to domestic carriage in certain countries.

The Panel did not agree with a proposal to provide for the automatic increase or decrease of the limits, in the light of economic and other developments, because it was likely to raise "constitutional and political problems which would impede the ratification of the new protocol or convention." However, the Secretariat was instructed to keep the question under review and to collect and communicate to contracting States "such statistics and other information as would have a bearing on the amounts of the limits specified in the new instrument." The Panel did not develop any "interim solution" which could apply prior to the coming into force of any new instrument. It was felt that this question would be dealt with more appropriately by the diplomatic conference when adopting amendments to the Warsaw Convention. d) COUNCIL ACTION ON THE REPORT OF THE SECOND SESSION OF THE EXPERT PANEL. The Report of the Panel on the work of its Second Session was considered by the Council during the 6th, 8th, 18th, and 19th Meetings of its 62nd Session.39 Meanwhile, the Legal Committee, at its 16th Session, had decided to establish a Subcommittee on Study of the Possible Revision of the Warsaw Convention of 1929 as amended by The Hague Protocol of 1955.1° Introducing the subject for the Council's consideration, the Director of the Legal Bureau reported that twenty-eight States had replied to the invitation to comment on the Panel's report. He pointed out that "the question was now much more complex than it had been when the Special Meeting was held in February 1966." The "simple question of what the limit should be" had since been complicated by the introduction in actual practice (through the so-called Montreal Agreement) of the concept of what was variously called "objective" or "absolute" liability but was more accurately described as "strict liability," a concept that was completely contrary to the Warsaw system and previously applied by only six countries in the world, one of them India. About 90 countries applied the Warsaw rule of limited liability to all international carriers by virtue of their active participation in the Warsaw Convention; some others not technically parties to the Convention applied the limit by virtue of legislation in conformity with that Convention." He also 39. C-WP/4648 and C-WP/4669. 40. See hereunder, Subsection II, p. 148.

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Section IV — Inter-governmental Organizations recalled that some States had expressed the opinion that Article 25 of the Warsaw Convention (providing for unlimited liability in case of wilful misconduct or equivalent fault) was incompatible with the system of strict liability. Some Representatives, e.g. the Representative of Czechoslovakia, favoured the convening of the Subcommittee of the Legal Committee and giving top priority to that subject in the Legal Committee's work programme. Some others, e.g. the Representative of Australia, felt that the Report of the Panel and the comments of States showed that there was insufficient information on the economic aspects of the problem to permit a considered opinion. They wished the whole problem, including its legal aspects, to be considered by the Council at the next session when additional replies may have been received from Contracting States. The vote on a motion to convene the Legal Subcommittee twice resulted in a tie of 13 votes for and 13 against and was therefore lost under Rule 53 of the Rules of Procedure of the Council. Instead, the Council decided on 15 December 1967 (19th Meeting of its 62nd Session), by 4 votes to 6, with the recorded abstentions of Argentina and India: 1) to request replies to ICAO State letter S 18/10-67/145 from those States from which replies have not yet been received; 2) a) to request the Air Transport Committe, as a matter of urgency, to initiate action for the collection of background economic material which it considers will be necessary in the revision of the present Warsaw/Hague limits of liability; b) to request the Air Transport Committee to advise Council, as soon as possible, of the earliest date when sufficient economic background information will be available to proceed with the revision of the Warsaw/Hague limits of liability; 3) to reconsider the problem during the 63rd Session of Council when additional replies to the State letter have been received and, in particular, to determine the manner in which the matter will be referred to the Legal Committee.

6. New definition of "aircraft" See Subsection B.1, Amendment 2 to Annex 7, p. 138. 7. Participation of ICAO in programmes for the exploration and use of outer space See Part II, Space Law, Section IV: Inter-governmental organizations, p. 396. 8. Structure and functions of the Secretariat: proposed establishment of a "Joint Inspection Unit" See Subsection III, "Relations with other International organizations," p. 155. 136

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1) Amendments to Annexes (except Annex 9) a) COMMON DATE OF APPLICABILITY FOR AMENDMENTS TO ANNEXES AND PANS IN 1968. At the 3rd Meeting of its 62nd Session (2 November

1967), the Council decided that 22 August 1968 should be the common date of applicability for amendments to Annexes 6, 7, 8, and 10, the Procedures for Air Navigation Services (Rules of the Air and Air Traffic Services—RAC, and Meteorology—MET), and the ICAO Abbreviations and Codes. b) AMENDMENTS ADOPTED IN 1967. Amendment 8 to Annex 2 (Rules of the Air) was adopted by the Council on 7 June 1967 (9th Meeting of its 61st Session).'" The amendment which was recommended by the Air Navigation Commission in its 1162nd Report contains modifications based on certain recommendations of the Fourth Meeting of the Air Traffic Control Automation Panel. Others deal with the Attachment to the Annex, which contains excerpts from the International Regulations for Preventing Collision at Sea. The Attachment, and paragraph 3.2.6.3 of the Annex referring thereto, are deleted and replaced by a Note drawing attention to the existence of these Regulations. On 13 June 1967 (11th Meeting of its 61st Session), the Council adopted Amendment 54 to Annex 3 (Meteorology) proposed by the Air Navigation Commission in its 1170th Report. This Amendment is consequential to the adoption of new aeronautical meteorological codes by the World Meteorological Organization. The latter had given these codes a status corresponding to ICAO Standards 42 Therefore, the Air Navigation Commission considered whether these codes should be given a higher status than that of reference material in an Attachment to the Annex. However, as the Chairman of the Commission pointed out (11th Meeting of the 61st Session of the Council), "it was expected that initially the new codes would be used unilaterally for ground exchange, messages in them being converted into plain language when transmitted to aircraft; [and that] they were therefore not clearly in the category of messages for which ICAO was responsible." For these reasons the new codes are incorporated into Attachment A to Annex 3, replacing the code presently in that Attachment. There were also consequential amendments to the Foreword to the Annex. Amendment 40 to Annex 4 (Aeronautical Charts) was adopted by the Council on 11 June 1967 (11th Meeting of its 61st Session), as recommended by the Air Navigation Commission in its 1167th Report. Resulting from a recommendation of the AIS/MAP Divisional Meeting (1966), this amendment replaces the fifth edition of Annex 4. It brings up to date and clarifies the Standards and Recommended Practices in 41. For previous consideration of this amendment by the Council, see Yearbook of Air and Space Law, 1965, p. 211. 42. Under the Working Arrangement between ICAO and WMO, the latter is responsible for developing and adopting the meteorological figure codes for aeronautical services.

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Section IV — Inter-governmental Organizations view of new operational requirements and changing cartographic practices. The Council adopted on 8 November 1967 (5th Meeting of its 62nd Session) Amendment 151 to Annex 6 (Operation of Aircraft). That amendment gave effect to a recommendation of the 7th Meeting of the Airworthiness Committee by making the aeroplane performance operating limitation in paragraph 5.2.7.2.2 applicable to three-engined as well as four-engined aeroplanes, and introduced the revised definition of "aircraft." On 8 November 1967 (5th Meeting of its 62nd Session), the Council adopted by twenty-three affirmative votes, Italy abstaining, Amendment 2 to Annex 7 (Aircraft Nationality and Registration Marks), containing a new definition of "aircraft." The President of the Air Navigation Commission explained that the new definition was intended to exclude air-cushion vehicles. In order to achieve that result the words "other than the reactions of the air against the earth's surface" were added to the previous definition. The new definition reads as follows: "Any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth's surface." Consequential amendments to Annexes 6 and 8 (see hereunder) were adopted at the same meeting, but consequential amendments to other Annexes were deferred for the time being, pending adoption of other amendments to these Annexes, "because there had been complaints that there were too many amendments." Amendment 88 to Annex 8 (Airworthiness of Aircraft) was adopted on 8 November 1967 (5th Meeting of the 62nd Session). This amendment deals with the same matters as amendment 151 to Annex 6. Amendment 46 to Annex 10 (Aeronautical Telecommunications) proposed by the Air Navigation Commission in its 1163rd Report, was adopted by the Council on 7 June 1967 (9th Meeting of its 61st Session). This amendment introduces new definitions and provisions relating to the transmission of air traffic services messages to be used in air traffic control computers. On 11 December 1967 (14th Meeting of the 62nd Session) the Council adopted Amendment 47 to Annex 10 (Aeronautical Telecommunications). The general effect of the amendment was to bring up to date or expand almost every major specification in volume one of the Annex (Part I—Equipment and Systems; Part II—Radio Frequencies). It also made some changes in volume two (Communication Procedures), notably the introduction of new simplified Aeronautical Mobile Distress Procedures, and some amendments of an editorial and relatively minor nature developed by the Commission. By twenty-six affirmative votes, without opposition or recorded abstention, the following additional material in Appendix A, having a lower status than SARPs, was approved for inclusion with the amendment: communication procedures with the status of Procedures for Air Navigation Services (PANS); the notes associated with SARPs and PANS; the revised Attachments A, B, 138

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C, D, and the new Attachment F to Part I of volume one, the revised Attachments A and B to Part II of volume one, and the amendments to Attachment A to volume two. On 7 June 1967 (9th Meeting of its 61st Session) the Council also adopted Amendment 16 to Annex 11 (Air Traffic Services), on the basis of the 1164th Report of the Air Navigation Commission. The amendment introduces new definitions, and an explanatory note modifies the provisions on co-ordination of transfer of responsibility for control and amplifies the provisions relating to control of traffic flow. Amendment 21 to Annex 14 (Aerodromes) was adopted by the Council on 28 June 1967 (16th Meeting of its 61st Session), as recommended by the Air Navigation Commission in its 1172nd Report. The amendment introduces "modifications originating in recommendations made by the Visual Aids Panel at its Fourth Meeting and by the Fourth Air Navigation Conference, and includes a consequential amendment aligning the definition of runway visual range with that in the PANSMET. The last two parts of the amendment had been included in the earlier Amendment 21 C-WP/4501) which had failed to obtain in Council the necessary number of votes for adoption." On 13 June 1967 (11th Meeting of its 61st Session), the Council adopted by eleven affirmative votes, Australia and Sweden abstaining with respect to certain paragraphs, Amendment 10 to Annex 15 (Aeronautical Information Service), following the recommendations of the Air Navigation Commission in its 1168th Report. The amendment results from Recommendations of the AIS/MAP Divisional Meeting of 1966 and replaces the third edition of the Annex. Its primary purpose is to bring provisions up to date to reflect changing operational requirements and practices; it also introduces specifications for snow plant modifications. 2) Amendments to Procedures for Air Navigation Services Amendment 1 to PANS-RAC, eighth edition, as recommended by the Air Navigation Commission in its 1148th Report, was adopted by the Council on 20 February 1967 (1st Meeting of its 60th Session), the Representative of the Philippines abstaining. The amendment is in two parts. The first, resulting from recommendations made by the RAC/ OPS Divisional Meeting in 1963, concerns the inclusion of procedures for the use of primary radar in air traffic services. The second part relates to the correct expression of vertical position during final approach, and is consequential upon the amendment to the PANS/OPS approved by the Council on 12 December 1966. From the date of the coming into force of this amendment the expression "Ground Controlled Approach" (GCA) will be replaced by the expression "Precision Radar Approach." It was felt that the introduction of radar as an integral part of air traffic control had made the expression "Ground Control Approach" obsolete; the new expression was considered to be more comprehensive since it embraces the different arrangements of equipment available at various air traffic control centres for ground control approach. 139

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Amendment 2 to PANS-RAC was adopted on 7 June 1967 (9th Meeting of the 61st Session of the Council), as recommended by the Air Navigation Commission in its 1165th Report. It results from certain recommendations made by the Air Traffic Control Automation Panel at its 5th Meeting and deals with the definition of certain new terms and the revision of provisions relating to the origination, addressing, preparadon, and transmission of air traffic services messages. The amendment also introduces a new Flight Plan Form and four new Attachments. On 13 June 1967 (11th Meeting of its 61st Session), the Council, on the basis of the 1169th Report of the Air Navigation Commission, approved Amendment 3 to the PANS-ICAO Abbreviations and Codes. This amendment, based on the recommendation of the AIS/MAP Divisional Meeting (1966), is a substitute for the text of Doc 8400, with the exception of three sections (Procedure Signals for Use in the International Aeronautical Telecommunication Service, Designation of Typical Emissions, and Signal Reporting Codes) that are unchanged or had only very minor amendments. It brings the abbreviations and codes up to date to reflect changed operational requirements and practices and clarifies the meaning of certain significations, particularly in the Q Code. Amendments to the PANS-MET and SUPP-MET which were consequential upon Amendment 54 to Annex 3 had been approved by the Air Navigation Commission on 20 June 1967 after the adoption by the Council of the said Amendment to Annex 3; see 1177th Report of the Air Navigation Commission. At the 15th Meeting of its 61st Session (26 June 1967), the Council noted the action taken by the Commission. 3) Amendments to Regional Supplementary Procedures On 13 December 1967 (16th Meeting of its 62nd Session), the Council approved amendments to Regional Supplementary Procedures (Meteorology) which were consequential upon the development of new aeronautical figure codes43 by the World Meteorological Organization and decided that they would become applicable on 1 January 1968, at the same time as the new figure codes. 4) Code of Practice for standardizing the expression of notions or concepts relevant to the description of a flight path On 17 March 1967 (11th Meeting of its 60th Session) the Council considered the 155th Report of the Air Navigation Commission, which dealt with the above subject. On that occasion the President of the Commission described the development and purpose of such a code as follows: The Commission, in reviewing draft procedures for the use of primary radar in air traffic services, had noted certain inconsistencies between the terminology used in the Procedures and that contained in Annex 10. It had set up a small ad hoc Working Group to study the standardization of terminology describing a flight path or part thereof, with a view to ensuring consistency of usage of 43. See Subsection I, "Amendments to Annexes," (b), Amendment 54 to Annex 3, p. 137.

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terms in ICAO documents. After reviewing the Working Group's report, the Commission had established the Code of Practice.... The Commission intends to introduce this Code progressively in relevant documents whenever substantive amendments were required. It would also be included in the ICAO Lexicon.

Since this was a purely editorial matter, consultation with Contracting States was not required but the Commission considered it desirable to inform States of the practice so established. The Council agreed to the action taken by the Air Navigation Commission with a view to establishing and applying a code or Practice with respect to the terminology to be used in the description of a flight path. 5) Resolution concerning the use of international airports by aircraft engaged in general aviation activities ICAO's recent concern with problems of general international civil aviation led the Assembly to adopt Resolution A 15-1544 which directs the Council inter alia to examine, in the course of its regular programme, the appropriate Standards and Recommended Practices and related material to determine their suitability for all international civil aviation. In line with this policy, the U.S. Representative proposed, during the examination of the recommendations of the 6th FAL Division by the Air Transport Committee, to include in Annex 9 (Facilitation) a provision concerning the use of international airports by aircraft engaged in general aviation activities. The 277th Report of the Air Transport Committee deals with that question. When the Council considered that Report on 20 February 1967 (1st Meeting of its 60th Session), the Chairman of the Air Transport Committee gave the following explanations: Since there seemed to be certain operational aspects involved, the Committee had decided to ask the Air Navigation Commission for its comments. The matter had subsequently been given further consideration by both the Air Transport Committee and the Air Navigation Commission, taking into account the views of Contracting States and interested international organizations. Recently, the Air Navigation Commission had informed the Committee that it had come to the conclusion that it would be inappropriate, for the time being, to develop material of this kind for inclusion in any Annex, and had, as an interim measure, drafted a resolution based on the spirit of the Chicago Convention.

The Air Transport Committee had made certain amendments to that draft resolution which it presented to the Council in its amended form. The Council approved the proposed draft resolution (the Representatives of the Phillipines and Tunisia abstaining) which reads as follows: WHEREAS the Convention on International Civil Aviation recognizes the need for the safe and orderly development of all international civil aviation; and

44. See Yearbook of Air and Space Law, I965, p. 204.

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Section IV — Inter-governmental Organizations WHEREAS the Assembly (Assembly Resolution A 15-15) recognized the growth of international general aviation and directed the Council to ensure that adequate consideration be given to the requirements of all international civil aviation; and WHEREAS the Council and the advisory bodies are now engaged in the broad study called for by Assembly Resolution A 15-15; and

WHEREAS air transport and air navigation meetings are already taking into account the requirements of international general aviation; and the operations of international general aviation are, at some international airports, either prohibited or restricted in varying degrees,

WHEREAS

to urge Contracting States to review their present regulations and practices relative to the use of international airports within their territories to ensure that these regulations and practices do not impose unnecessary restrictions upon the use of these airports by any types of international civil aviation.

THE COUNCIL RESOLVES

6) Convening of Panels and action on their Reports under delegated authority of the Air Navigation Commission In May 1967, it had been agreed among the President of the Council, the President of the Air Navigation Commission, and the latter's Working Group on Procedural Matters, that: (a) the convening of a Panel meeting and its agenda, (b) the action taken by the Commission on parts of the report of a Panel on which it had authority to act, and (c) the dissolution of a Panel be reported by the President of the Commission to the President of the Council who, in turn, would inform Representatives on the Council. The matter would be brought before the Council only if a Representative so wished. The discussion of that matter at the 5th Meeting of the 62nd Session of the Council showed that there was "more support for the new method than opposition to it." The President of the Council therefore concluded that the new arrangement described above would be continued. 7) Establishment and use of Secretariat Study Groups in the air navigation field Secretariat Study Groups comprising experts from Contracting States had been established on a trial basis to deal with certain technical matters. On 15 March 1967 (10th Meeting of its 60th Session) the Council considered a report which the Air Navigation Commission had prepared, at the Council's request, on the nature and role of such Study Groups and the rules governing their activities. Many Representatives favoured their use for the study of highly technical subjects for which the Secretariat alone may not possess the required specialized knowledge and experience. Other Representatives anticipated possible proliferation of such groups which would compete with traditional methods used in ICAO, for example, Expert Panels. Finally the Council agreed that this method: 142

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a) should be applied only to the study of technical questions not touching on matters of political, geographical, economic, or legal importance; b) should not be applied to too great a number of items, at least during the trial period; and c) should complement, not replace, other more classical working methods such as panels. Further, the Council expressed its confidence "that the Air Navigation Commission will use study groups in the most efficient way on the basis of the above directives." The Council "wishes to be kept informed of the establishment of such groups, their composition, and the results obtained" and agreed that Council members would be informed of the establishment and composition of a study group as soon as it had been constituted, and that there might be changes in the composition while the work was being carried out. C. AIR TRANSPORT

1) Types of co-operative agreements and arrangements between States, airlines, or States and airlines The ICAO Air Transport Committee had prepared a survey95 of "Types of Co-operative Agreements and Arrangements between States, airlines, or States and airlines" for circulation to Contracting States. On the basis of information received later on by those States, the Air Transport Committee, in its 279th Report to Council, recommended, and the Council approved "the distribution to States, pursuant to Clause 3 of Assembly Resolution A15-21, of a brief summary of the material received ... [namely] information on the number and kind of co-operative agreements concluded by their airlines, their comments on co-operative agreements and arrangements, information on the specimen copies of co-operative agreements received, to which would be appended one or two specimens of each type of co-operative agreement and arrangement known to exist." The summary has been published as ICAO Circular 84-AT/14. 2) Measures to develop air passenger traffic in the African regions At its 15th Session (Montreal, 1965), the Assembly adopted Resolution A 15-17 in which it requested the Council inter alia "to undertake studies with the objective of exploring, analyzing and determining measures to further the development of international air passenger travel .. . on a world wide basis or by regions in the African regions."46 A study made by the Secretariat, under that resolution, of "Measures to develop air passenger traffic in the African Regions" was submitted at Council 45. See Yearbook of Air and Space Law, 1966, p. 185. 46. See Yearbook of Air and Space Law, 1965, p. 206

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Section IV — Inter-governmental Organizations in the 282nd Report of the Air Transport Committee on 13 March 1967 (9th Meeting of its 60th Session). The Council approved the recommendation of the Committee that that study, when finalized in accordance with suggestions made by Council Representatives, be issued as a document and distributed to States and the International Union of Official Travel Organizations. It has since been issued as Circular 80-AT113. 3) Access of general aviation to international airports See above, Subsection B, "Air Navigation" (5), Resolution concerning the use of international airports ... , p. 141. D. JOINT FINANCING

1) Agreement on the Joint Financing of the North Atlantic Ocean Stations Following the recommendation of the Joint Support Committee, and pursuant to Article XVII, paragraph 2, of that Agreement, the Council accepted on 20 February 1967 (1st Meeting of its 60th Session) a contribution of CAN $5476.35 by the Government of Cuba as an ex gratia contribution to the support of the North Atlantic Ocean Stations. The Council decided that the Government of Cuba be advised of the acceptance of its contribution, with an expression of the Council's appreciation for its spirit of international co-operation, and of the Council's hope that, persuant to Resolution A 14-37, Cuba would decide in the near future to become a full participant in the NAOS Agreement. At the 9th Meeting of its 60th Session (13 March 1967), the Council approved the recommendations made by the Joint Support Committee in its 272nd Report, and approved the use of a cost limit of £ 160,000 per vessel in calculating the revision of obligations to pay and rights to receive cash for the fifteenth year of the agreement. This limit had already been used in the calculations for the fourteenth year and had been consented to by the States party to the Agreement. On 25 April 1967 (1st Meeting of its 61st Session), the Council revised the obligations to pay, and rights to receive, cash persuant to Article III of the Agreement for the period from 1 July 1967 to 30 June 1969, and made consequential amendments to the text of Clauses 1, 2, and 3 of that Article, in accordance with the recommandations made by the Joint Support Committee. 2) Agreement on the Joint Financing of Certain Air Navigation Services (i) in Greenland and the Faeroe Islands, and (ii) in Iceland On 29 September 1967 (2nd Meeting of its 62nd Session), the Council approved, in accordance with Articles VII(5) and IX(3) of the Agreement with Denmark (Greenland and the Faeroe Islands), the adjustments for 1966 and the assessments for 1968 recommended by the Joint Financing Committee. At the same time the Council amended Annex II to the Agreement. 144

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On 15 December 1967 (18th Meeting of its 62nd Session), the Council approved new capital expenditures in accordance with Article XVIII, paragraph 1 of the Agreement, and adopted consequential amendments to Annexes II and III. On 29 September 1967 (2nd Meeting of its 62nd Session), the Council also approved, in accordance with Articles VII(5) and IX(3) of the Agreement with Iceland, the adjustments for 1966 and the assessments for 1968 recommended by the Joint Financing Committee. Furthermore, the Council amended Annex II. New capital expenditures proposed by the Government of Iceland were approved on 15 December 1967 (18th Meeting of its 62nd Session) in accordance with Article XIII, paragraph 1 of the Agreement. Annexes H and III were amended accordingly.

E. TECHNICAL ASSISTANCE

Aviation Training in Africa Recommendation No. 4 of the African Air Transport Conference (Addis Ababa, 1964), which relates to aviation training and had been considered by the Council at the 13th Meeting of its 54th Session (2 April 1965),47 was again considered at the 6th Meeting of its 60th Session (3 March 1967) and the 10th Meeting of its 61st Session (9 June 1967). At the latter meeting, the Council noted the study on arrangements for aviation training in Africa which had been prepared by the Secretariat, and directed the Secretary General to publish it as an ICAO circular.48 In addition, the Secretary General was instructed to explore the possibilities for increasing the number of training places available at the African Training Centres assisted through ICAO. The Council also decided that "African Governments should be encouraged to include in their future requests for technical assistance under the Expanded Programme of Technical Assistance (EPTA) or Special Fund (SF) components of the United Nations Development Programme (UNDP), the additional resources required either for the provision of scholarships to other Training Centres or for enlarging existing training facilities in their countries" and "to attempt to improve preparatory training facilities, and be encouraged to send qualified students, both through scholarship awards under the ICAO-EPTA Programme and by using other resources, to such Training Centres in Africa as have vacant places." They should also "be invited to request the help of ICAO in the preparation of requests for assistance under the SF component of the UNDP when the magnitude of their national training needs required, in their view, the establishment of a national training centre or the enlargement of an existing centre." 47. Doc 8489, c/956-13. 48. ICAO Circular 83-An/70, Arrangements for Aviation Training in Africa.

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Section IV — Inter-governmental Organizations II. LEGAL COMMITTEE AND ITS SUBCOMMITTEES A. SIXTEENTH SESSION OF THE LEGAL COMMITTEE

Twenty-eight States and five international organizations were represented at the 16th Session, held in Paris the 5-22 September 1967.° 1. Election of Officers of the Legal Committee The Committee elected Dr. W. Guldimann (Switzerland) Chairman, and Dr. D. Pardo Tovar (Colombia), Messrs. El Hicheri (Tunisia), and N. Nakano (Japan), Vice-Chairmen. Subsequent to the amendment of Rule 6 of its Rules of Procedure, it was decided that these officers "remain in office until the end of the Seventeenth Session when the election of the new officers will take place under the new Rule 6." 2. Amendments to the Rules of Procedure of the Legal Committee As previously reported,60 the Legal Commission, during the 15th Session of the Assembly, suggested certain modifications of the organization and working methods of the Legal Committee. Its Report, together with amendments to the Rules of Procedure which had been proposed by the Representative of Switzerland at the 13th and 14th Sessions of the Legal Committee'' were before the latter at its 16th Meeting. The following action was taken. In accordance with the recommendation of the Legal Commission, Rule 6 of the Rules of Procedure was amended so as to have the Committee's officers elected "at the end of every second session" instead of the election taking place, as in the past, at the beginning of each session. Rule 6 as amended reads in part, as follows: "The Committee shall elect at the end of every second session, from among the representatives of States, a Chairman and three Vice-Chairmen. Such officers shall hold office from the time of their election until their successors are duly elected. They shall not be eligible for re-election for the next succeeding term." One of two proposals of the Representative of Switzerland dealt with the division of the general programme of the Committee into two Parts, A and B. This practice had been adopted by the Council in 1953,52 while no such division was provided for in the relevant Rules 8 and 9 of the Committee's Rules of Procedure. The Representative of Switzerland withdrew that proposal "when the Committee agreed that Rule 9 was to be interpreted in principle as referring to Part A of the Work Programme." 49. The summary of the work of the Committee during that session is published in Doc 8704-LC/155. 50. See Yearbook of Air and Space Law, 1965, p. 219. 5I. See text of the Swiss proposals in ICAO LC/DT Nos. 658 and 664. 52. See Annex F to Doc 8704.

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The other proposal by the same Representative dealt with the procedure to be followed in the preparation of draft conventions and, in particular, with the related functions of the Legal Bureau of ICAO, and of the Rapporteur of the Subcommittee in charge of the study of a particular question. The Legal Committee agreed that "in practice, each Subcommittee established by the Committee to study a draft convention should, as far as practicable, include in its report an assessment of the measure of agreement reached and capable of being reached between States upon the problems under consideration, together with an expression of opinion whether the subject is ripe for study by the Legal Committee." Furthermore it was agreed that "if in the opinion of the Chairman of the Legal Committee, any steps may have to be taken by the Council in connection with the report of a Subcommittee before the next session of the Legal Committee, he will send that report as soon as possible to the Council together with such comments as he considers necessary or useful." However, the Committee did not consider it necessary to amend its Rules of Procedure in order to reflect the foregoing. The Committee formally rejected a proposal to amend Rule 31(a) which would have deprived observers of the right to make a motion of amendment.63 On the other hand the Committee decided to amend the Spanish text of Rule 31(b) so as to align it more closely with the English and French texts of that Rule. The text so amended reads as follows:64 "Ninguana mociön podrå ser retirada por su autor si una enmienda a la mociön se estti discutiendo o ha sido adoptada." Finally the Committee expressed the view that the recommendations of the Legal Commission, together with the decisions of the Legal Committee, "be collected and made available to Members in a convenient form (for example in the part of the booklet containing the Constitution and Rules of Procedure of the Legal Committee) 55 3. General programme of work of the Legal Committee66 When establishing the Work Programme of the Legal Committee, the Legal Commission had placed the "Study of a possible revision of the limits of liability specified in the Warsaw Convention of 1929 as amended by The Hague Protocol of 1955" as Item 6 in Part A of that Programme.57 Meanwhile, a Special Meeting on Limits for passengers under the Warsaw Convention and The Hague Protocol, and a Panel of Experts, had been convened by ICAO to discuss the same matter. Moreover, the U.S. Civil Aviation Board had approved a special arrangement amongst airlines which provided for a temporary increase of the said limits by the participating carriers. Because of these developments, the Legal Committee decided to give highest priority to the item which had been Item 6 on its previous Programme. 53. Ibid. 54. Ibid. 55. Ibid., para. 3.

56. See Annex C to Doc 8704. 57. See Yearbook of Air and Space Law, 1965, p. 218.

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Section IV — Inter-governmental Organizations Since Item 4 of its previous Work Programme, namely "Problems of nationality and registration of aircraft operated by international agencies," had been disposed of during the present session (see below), the Committee decided to delete it from the general programme of work. Consequently, Part A (subjects on the current programme) of that Work Programme as established at the 16th Session of the Legal Committee reads as follows:55 1. Study of the possible revision of the Warsaw Convention of 1929 as amended by The Hague Protocol of 1955. 2. Liability of Air Traffic Control Agencies. 3. Aerial Collisions. 4. Study of the Rome Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface (Rome 1952). 5. Resolution B of the Guadalajara Conference. 6. Legal Status of the Aircraft; aspects other than those found in the Tokyo Convention.

The Committee, furthermore; decided to establish a Subcommittee to deal with the study of the possible revision of the Warsaw Convention of 1929 as amended by The Hague Protocol of 1955. Subject to the approval of the Council, that Subcommittee will meet in the first half of 1968.6° 4. Discussions and decisions on substantive matters The Committee dealt successively with (1) problems of nationality and registration of aircraft operated by international agencies, (2) revision of the Rome Convention (1952), and (3) liability of air traffic control agencies. The Committee had before it a Report of its Subcommittees which had been established to study these questions.60 a) PROBLEMS OF NATIONALITY AND REGISTRATION OF AIRCRAFT OPERATED BY INTERNATIONAL AGENCIES. After a very detailed discussion the Committee generally endorsed the suggestions and proposals of its Subcommittee, which are reported hereunder, in subsection B, p. 151.61 The Committee distinguished between "joint registration" and "international registration" which have in common "the fact that the aircraft would not be registered on a national basis in a given State." The expression "joint registration" refers to "that system of registration of aircraft according to which the States constituting the operating agency would establish a non-national register for the joint registration of aircraft." The other expression, namely "international registration," denotes the cases where the aircraft would be registered with an international organization." 58. See Annex C to Doc 8704. 59. See Para. 8 of Doc 8704. 60. See Yearbook of Air and Space Law, 1965, p. 222, 224, 226; and hereunder, p. 151. 61. See the Committee's Report on that matter in Annex C to Doc 8704.

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With respect to the words used in Article 77 of the Chicago Convention, "provisions of this Convention relating to nationality of aircraft," the Committee agreed that they "should be regarded as including not only Articles 17 to 21 which appear in Chapter III, Nationality of Aircraft, of the Convention, but also all articles of the Convention which either expressly refer to nationality of aircraft or imply it." The Committee examined the question (which had been answered in the negative by the Panel of Experts in 1960), whether the Council can make a determination under Article 77 without prior amendment of the Chicago Convention. The Committee answered that question affirmativeIy, in line with the views of the Subcommittee, and reported as follows: Article 77 specifically casts upon the Council the duty of determining the manner in which the provisions of the Convention relating to nationality of aircraft shall be applied to aircraft operated by international operating agencies. In the view of the Legal Committee this implies that those provisions can be made so applicable to such aircraft without amending the Convention. Therefore, the Legal Committee concludes that, without any amendment to the Chicago Convention, the provisions of the Convention can be made applicable, by a determination of the Council, to aircraft which are not registered on a national basis, such as aircraft jointly registered or internationally registered, subject, however, to fulfilment of certain criteria.

In this connection the Committee also noted that Articles 7, 9, 15, and 27 of the Chicago Convention were no obstacle to a determination under Article 77 and, in particular, would not give rise to any discrimination against aircraft registered in other Contracting States.°2 The Committee also approved the following set of "basic criteria," proposed by its Subcommittee, for guidance of the Council in making a determination: I. In the case of joint registration— A. The States constituting the international operating agency shall be jointly and severally bound to assume the obligations which, under the Chicago Convention, attach to a State of registry. B. The States constituting the international operating agency shall identify for each aircraft an appropriate State from among themselves which shall be entrusted with the duty of receiving and replying to representations which might be made by other Contracting States of the Chicago Convention concerning that aircraft. This identification shall be only for practical 62. Article 7 (Cabotage) : It was agreed that the mere fact of joint or international registration under Article 77 would not operate to constitute the geographical area of the multinational group as a cabotage area. Article 9 (Prohibited Areas): The Committee agreed that joint or international registration will not affect the application of this Article. Article 15 (Airport and Similar Charges): The Committee saw no difficulty in the case of this Article. Article 27 (Patent Claims) : The requirement of this Article being that a given State should be a party not only to the Chicago Convention but also a party to the International Convention for the Protection of Industrial Property, it might be that, in a particular case, one or other of the States constituting an international operating agency was not a party to the latter Convention. In such case the interests of that State are not protected by the terms of Article 27.

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Section IV — Inter-governmental Organizations purposes and without prejudice to the joint and several responsibility of the States participating in the agency, and the duties assumed by the State so identified shall be exercised on its own behalf and on behalf of all the other participating States. C. The operation of the aircraft concerned shall not give rise to any discrimination against aircraft registered in other Contracting States with respect to the provisions of the Chicago Convention. D. The States constituting the international operating agency shall ensure that their laws, regulations and procedures as they relate to the operation of the aircraft of the international operating agency shall meet in a uniform manner the obligations under the Chicago Convention and the Annexes thereto. II.

In the case of international registration the States constituting the international operating agency may devise such a system for registration as shall satisfy the Council that the other Member States of ICAO have sufficient guarantees that the provisions of the Chicago Convention are complied with. In this connection the criteria mentioned in A, C and D above shall, in any event, be applicable.

Furthermore, the Committee agreed with its Subcommittee that the procedure to be followed by the Council may be divided in two stages. In the first stage, the Council would adopt a resolution incorporating the "basic criteria." This resolution would also specify that the manner of application of the provisions of the Convention relating to nationality of aircraft be as follows: (1) In the case of joint or international registration, all the aircraft of a given international operating agency shall have a common mark, and not the nationality mark of any particular State and the provisions of the Convention which refer to nationality marks (Articles 12 and 20) and Annex 7 to the Convention shall be applied mutatis mutandis. (2) Without prejudice to the rights of other Contracting States as provided for in C of paragraph 8 above and in paragraph 13 below,63 each such aircraft shall, for the purposes of the Convention, be deemed to have the nationality of each of the States constituting the international operating agency. (3) For the application of Articles 25 and 26 of the Convention the State which maintains the joint register or the relevant part of the joint register pertaining to a particular aircraft shall be considered to be "the State in which the aircraft is registered."

Opinions were divided on the question whether the Council, when seised with a request under Article 77, should examine whether a proposed scheme of "non-national registration" complied with the "basic criteria" mentioned above. The committee agreed, finally, that after the adoption by the Council of the "basic criteria," the "determination" by the council would give effect to the application of these criteria to a particular plan for joint or international registration which might be brought before the Council, "it being understood that in the case of joint registration ... there would be no problem in regard to the fulfilment 63. Note 62, supra, reproduces the text of that paragraph.

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of the conditions specified [in the basic criteria] and therefore such determination by the Council in such or similar cases will merely be formal and should automatically be given." The Committee noted, however, other cases of joint registration and all cases of international registration may well require different approaches. The Committee advised, as had been suggested by its Subcommittee, that a determination made by the Council pursuant to Article 77 "be binding on all Contracting States," provided the Council follows the procedure recommended by the Committee. In that case, the Committee felt that if the "basic criteria" are complied with, aircraft which are registered jointly or internationally would have the rights and obligations established by the Chicago Convention for aircraft registered in a Contracting State. Since the report of the Legal Committee does not deal with the question raised in the Subcommittee with respect to the majority required for adopting a "determination" by the Council, it must be concluded that the Committee did not challenge the Subcommittee's finding that the "approval by a majority of its [the Council's] Members" as specified in Article 52 of the Convention is sufficient.6" b) REVISION OF THE ROME CONVENTION (1952). The discussion by the Legal Committee of the Report of its Subcommittee's focused on the following points:66 i) Sonic Boom. The Committee was divided on the question whether Iiability for damages caused by sonic boom should be determined by national laws or by an international convention. It requested the Subcommittee "to continue its work on the question in the light of developments, such as further comments from States and experience of supersonic flights." ii) Nuclear damage. The Committee noted that the Paris Convention of 29 July 1960, as well as the related Brussels Protocol and the Vienna Convention of 21 May 1963, impose liability for nuclear damage on the operator of the nuclear installation, to the exclusion of all other persons, and provide specifically that they do not affect any international convention in the field of transport in force or open for signature at the time when the aforementioned instruments were opened for signature. The Secretary was instructed to ascertain to what extent they have been ratified and to inform the Subcommittee accordingly. iii) Limits of liability. It was not considered advisable "to attempt to determine, at this time, specific limits." Future meetings of the Subcommittee are to be called by the Chairman of the Legal Committee, in consultation with the Chairman of the Subcommittee, when more information and experience will have been gained with respect to that matter. 64. See Yearbook of Air and Space Law, 1965, p. 228. 65. Ibid., p. 222. 66. See Annex D to Doc 8704.

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Section IV — Inter-governmental Organizations C) LIABILITY OF AIR TRAFFIC CONTROL AGENCIES. The Committee agreed that the liability of air traffic control agencies should be regulated by a special convention. On the basis of the report of its subcommittee" it took the following decisions on problems relating to the content of such convention:B8 (1) Description of the services within the scope of the proposed Convention: It was agreed that such description should be broadly based as contemplated in paragraph 14 of the Subcommittee's report. (2) Posture of aircraft: It was agreed that the Convention should apply whatever the posture of the aircraft—whether in flight, on the surface or in movement or not—whenever the aircraft was under the control of the service concerned. (3) System of liability: It was agreed that the Convention should contain a system of liability based upon fault. (4) Limitation of liability: The Committee considers that the Convention should provide for a limitation of liability in a reasonably high amount. The amount could be determined only after further studies. The opinion was expressed that the amount of the limit under the proposed Convention might be related to the corresponding limits in the other liability conventions, depending upon the applicability of the latter also to a given case. It was agreed that nothing in the Convention should prevent a State from accepting liability in an amount higher than the limit provided in the Convention. (5) Questions concerning direct and recourse actions and apportionment: The Committee discussed the questions whether direct actions against air traffic control agencies may be maintained independently of direct actions against any other person liable; whether a claimant may recover in the total more than the carrier's or operator's applicable limit; whether there should be priority for direct actions over recourse actions against air traffic control agencies. Opinion on these questions was divided.

5. Action of the Council At the 3rd Meeting of its 62nd Session (2 November 1967), the Council noted the action taken by the Legal Committee with respect to its working methods and rules of procedure as well as the action taken by it on the reports of the Subcommittees on the Rome Convention and on Liability of Air Traffic Control Agencies. It deferred approval of the general work programme of the Legal Committee until a decision was reached regarding the convening of a meeting of the Legal Committee's Subcommittee on the Possible Revision of the Warsaw Convention and The Hague Protocol. The action of the Council with respect to that question as well as its decision regarding problems of nationality and registration of aircraft operated by international agencies are reported in Subsection A 4, p. 122, above. 67. See Yearbook of Air and Space Law, 1965, p. 224. 68. Paras. (1) to (5) are reproduced from para. 1 of Annex E (Action on the report of the Subcommittee on Liability of Air Traffic Control Agencies) to Doc 8704-LC/155.

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B. MEETINGS OF SUBCOMMITTEES OF THE LEGAL COMMITTEE IN

1967

The Subcommittee on Article 77: Registration and Nationality of Aircraft operated by Joint Air Transport Operating Agencies was the only Subcommittee to meet in 1967. It held its second session in Montreal from 4 to 13 January 1967." Since its main conclusions have already been endorsed by the Legal Committee at its 16th Session, as reported in Subsection A above, the following is but a brief summary of certain features of the work of the Subcommittee during that second Session.70 Having agreed that aircraft owned71 by a joint air transport operating agency can be the object of either "joint registration" or "international registration," the Subcommittee noted, with respect to the latter case, the possibility of the aircraft being registered with ICAO because the "Chicago Convention does not contain any provisions which militate against such solution." The Subcommittee, however, pointed out that "there being no specific article of the Convention stating that ... registration of aircraft would be performed by ICAO ... at least the approval of the Assembly should be obtained before ICAO undertook to register aircraft.72 Furthermore, the Subcommittee agreed that: (1) in the case of joint registration or international registration, all the aircraft of a given international operating agency shall have a common mark, and not the nationality mark of any particular State; the provisions of the Convention which refer to nationality marks (Articles 12 and 20) and Annex 7 to the Convention shall be applied accordingly; (2) each aircraft so registered shall be deemed to be an aircraft of a Contracting State for the purposes of the Convention, and, in so far as concerns any provisions of the Convention which speak of, or imply, nationality, such an aircraft shall be treated as having, for such purpose, the nationality of each of the Contracting States constituting the agency.

With respect to the right and duty of the Council to make a determination under Article 77 (without the Chicago Convention being previously amended) which had been explored during the first session, the Subcommittee now concluded that the Council would not be obliged to recognize any plan of "non-national registration" which would not comply with the "basic criteria" established by the Subcommittee. These 69. For a report on its first session see Yearbook of Air and Space Law, 1965, p. 226. 70. The Report of the Subcommittee on the work during its second session is published in LC/SC Art. 77/Report 2. 71. In spite of its wording, which speaks of aircraft "operated" by such agencies, the last sentence of Article 77 of the Chicago Convention does in fact contemplate the case of aircraft "owned" by them, for no problem of nationality would arise if such agencies operated aircraft owned by individuals, or other arlines, would already have registered them. 72. If ICAO has competence to register such aircraft—and, possibly, its own aircraft (see Section 11 of the Agreement between ICAO and Canada regarding the headquarters of ICAO) and those of other international organizations as suggested in Les avdons internationaus 685 [686] 1962)—it is submitted that action of the Assembly is required merely to provide the necessary funds in the budget to meet the expenses incurred by ICAO through such registration.

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Section IV — Inter-governmental Organizations "basic criteria" amplify the points listed in the advice formulated by the Subcommittee at its first session73 and were adopted unanimously by the Subcommittee at its second session. They have since been approved by the Legal Committee without change, and are reproduced in Subsection A.4.a above, p. 149. The Subcommittee returned to the question, raised at its first session, of whether an international operating agency could comprise one or several States that are not Parties to the Chicago Convention. The discussion of this problem is summarized as follows in the report of the Subcommittee: It was noted that while Article 79 of the Chicago Convention speaks of "A State," Article 77 itself speaks only of Contracting States in relation to the constitution of an international operating agency. Further, to admit a nonContracting State in an agency in connection with the provisions of Article 77 would be in derogation of the principle that a State not party to a treaty (here the Chicago Convention) can have no claim to benefit from the provisions thereof. A counter-argument mentioned during the discussions was that those States constituting the agency which are parties to the Chicago Convention would be jointly and severally responsible for the fulfilment of those obligations which, under the Chicago Convention, attach to a State of registration. The answer to such observation was that a given non-Contracting State, if it is to benefit from the Chicago Convention, must subscribe to all the obligations laid down by the Convention and not only those obligations which pertain to registration of aircraft, and that the accepted method would be to deposit an instrument' of adherence to the Convention. This exchange of views resulted in the conclusion that a Contracting State which was not a member of the operating agency, could refuse a non-Contracting State the benefits or privileges which the Convention confers only on aircraft of Contracting States.

The Subcommittee finally considered once more the procedure to be followed by the Council in making a determination under Article 77. Certain representatives were of the opinion that "before the Council actually makes a determination, it would be useful if the views of all Member States of ICAO were sought" and that "the Council may wish to circulate a draft of its proposed determination." Other representatives stated that there was no need for such preliminary consultation of Contracting States because "it was the specific duty of the Council itself to discharge the functions laid upon it by the last sentence of Article 77 of the Convention." Moreover, if the Legal Committee endorsed the opinion of the Subcommittee that the "basic criteria" embody "all necessary safeguards," "there would be no justification thereafter for the Council to go to the States at large for expression of views on specific cases brought before it." Still, the Subcommittee agreed that the procedure for the determination by the Council should be divided in two phases, namely: (1) adoption by the Council of "basic criteria" and (2) application of these criteria to a particular plan of non-national registration submitted to the Council. 73. See

Yearbook of AL and Space Law, 1965, p.

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III. RELATIONS WITH OTHER INTERNATIONAL ORGANIZATIONS A. RELATIONS WITH THE UNITED NATIONS: CO-ORDINATION OF ADMINISTRATIVE MATTERS (JOINT INSPECTION UNIT)

The Ad Hoc Committee of Experts set up by the United Nations General Assembly to examine the finances of the United Nations and the Specialized Agencies had recommended the establishment of a Joint Inspection Unit.74 The functions, composition, and cost of the proposed Unit were explained by the Secretary General at the 4th Meeting of the 60th Session of the Council (27 February 1967) as follows: The proposed Inspection Unit would be a body of not snore than eight persons with special experience in national or international administrative or financial matters, appointed by the Secretary General of the United Nations, and for administrative purposes would be attached to his office in New York because the Secretary General was not only the Chief Administrative Officer of the United Nations but also Chairman of the Administrative Committee on Coordination. The inspectors would have a large measure of independence. They would, for instance, make on-the-spot inquiries and investigations as and when they themselves might decide, acting singly or in small groups; they would have the broadest powers of investigation in all matters having a bearing on the efficiency of the services and the proper use of funds; standards for the conduct of the inspectors and the inspection programmes would be determined by the Unit itself. It was also said in the Ad Hoc Committee's report that the Inspection Unit would exercise a kind of supervision over the administrative and financial management of the United Nations organizations that could not be exercised by the External Auditors. All this amounted to a form of control with which ICAO was not familiar .... The cost of the Inspection Unit would be shared by the organizations of the United Nations family. His, the Secretary General's, present estimate of ICAO's share was $12,000 a year but it could well be more, depending on how the Unit developed.

As regards the desirability of such a unit from ICAO's point of view, the Secretary General noted that "while he, as Secretary General, had no difficulty with it, he felt that it might go beyond the Secretariat." His misgivings, he told the Council, were shared by officers in other organizations. In his opinion, "ICAO was particularly well equipped in the matter of financial control" since "unlike the other agencies it had a permanent governing body which kept continuous watch on the administrative and financial management of the Organization, not only itself but through subordinate bodies like the Finance Committee and the Working Group on Conditions of Service; ... this [supervision] was additional to the control exercised through the Internal Audit Section, the Management Service Office and the External Auditor [of ICAO] who happens to be the Auditor General of Canada." The Council discussed the question of ICAO participating in the proposed Joint Inspection Unit on 27 February and 3 March 1967 (4th 74. U.N. Doc A/6343, 19 July 1966.

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Section IV — Inter-governmental Organizations and 6th Meetings of its 60th Session). In view of the forthcoming InterAgency meeting and the forthcoming meeting of the Administrative Committee on Co-ordination, where the substantive question was to be discussed again, the Secretary General was given the following brief: a) To explain thoroughly the ICAO system of internal auditing and control and management service, and the administrative and financial functions exercised by the Finance Committee, the Working Group on Conditions of Service, the Council and the Assembly. b) To indicate that ICAO, in a spirit of co-operation and realizing the importance of uniformity of action by the UN and Agencies, takes a sympathetic attitude towards the aims and purposes of the Inspection Unit. c) To ensure that as far as ICAO is concerned, the authority of the Inspection Unit should extend over the functions of the Secretary General, but should not extend over those of the ICAO Assembly, Council and its subordinate bodies. d) To indicate that the inspectors should be carefully selected and that there should be a clear definition of the relationship between the Inspection Unit and the UN Panel of Auditors. e) To indicate that the ICAO Council would like to receive on each occasion, as early as possible, any report that might be prepared by the inspectors. f) To try to obtain a cost to ICAO lower than the normal pro rata share since, in view of the system mentioned in a) above, it is likely that the frequency and duration of missions of the Inspection Unit to ICAO will be less than for organizations without similar administrative and financial controls. g) To indicate that ICAO would like to see a ceiling established in the costs for the operation of the Inspection Unit and that, in any event, the Council, before taking a final decision in the matter, would wish to know what would be the maximum cost to ICAO for each of the four years of operation of the Unit. B. RELATIONS WITH THE WORLD METEOROLOGICAL ORGANIZATION

1. Co-ordination between ICAO and WMO with respect to codes for aeronautical telecommunication services See above, Subsection LB, "Air Navigation," (1) Amendments to Annexes, (b) Amendment 54 to Annex 3, p. 137. 2. World Weather Watch System When the Council, at the 11th Meeting of its 61st Session, considered a recommendation on further development and co-ordination of the area forecast system (formulated by the Joint ICAO MET/OPS Meeting and the Third Session of the WMO Commission for Aeronautical Meteorology), the Secretary General of the World Meteorological Organization made an elaborate statement on the plan and implementation programme for a World Weather Watch System which required close collaboration between WMO and ICAO "with a view to ensuring that the services planned and provided meet as closely as practicable the requirements for 156

ICAO

services by the International Civil Aviation Organization, and avoid duplication of effort." In order to avoid conflicting forecasts for aviation over a given area, he considered it imperative "that the aviation products of regional meteorological centers be addressed only to area forecast centers where they exist." The Council returned to the question on 8 November 1967 (25th Meeting of its 62nd Session) and noted that the main aim of the said recommendation "would be satisfied gradually by the processes of ICAO regional planning of area forecast systems for international air navigation." The necessary co-ordination with the implementation of WMO's World Weather Watch would be achieved, according to Council's directives, in the following way: a) the Secretariat should continue to provide relevant information on existing and planned area forecast systems and on the current state of related aspects in the development of World Weather Watch, and b) the Secretary General was to inform WMO of the decision of the Council and convey at the same time "an assurance of the full cooperation of ICAO in achieving necessary coordination with World Weather Watch in the development of area forecast systems through ICAO regional planning processes." 3. Relations of ICAO with other international organizations with respect to the exploration and use of outer space See Part II, Space Law, Section IV, p. 396.

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Chapter 11

Regional Organizations I. COUNCIL OF EUROPE In accordance with previous decisions of the Consultative Assembly of the Council,1 the European Civil Aviation Conference (ECAC) had examined the Report of the Council's Economic Committee entitled "Certain financial and economic aspects of air transport operations"2 and referred it for further study to COCOLI and a special Study Group (EREP). The result of that study was communicated to the Economic Committee of the Council of Europe. It constitutes the basis of the Report of the Committee (Rapporteur M. Vos) to the Consultative Assembly.$ The interest and policy of the Council of Europe in the economics of European air transport are illustrated conveniently by the following conclusions and suggestions in the Report. 1. General financial situation of airlines It is the case that present European airline profits taken as a whole, however reasonable they may appear looked at on the basis of one or two years' operations, are very modest when judged by the amount of accumulated losses. Moreover, despite an awareness that the introduction of supersize subsonic aircraft (Jumbo Jets) and of supersonic aircraft around 1970-71, if not properly planned for in advance, could again result in the excess capacity and other problems that were associated with the coming into service of subsonic jets from 1957 onwards, there can be no certainty that history will not repeat itself.

2. Financial and non-financial objectives of air transport Recognising .... that "financial balance and profitability on the one hand, and public service and the general interest on the other, make up paramount objectives which European airlines and Governments endeavour to achieve simultaneously," the Council of Europe was concerned that questions of "financial balance and profitability" were all too frequently given insufficient weight as against particular short-term interests and pressures having greater electoral appeal. The kind of decision that was envisaged in this context by Doc 1734 was one where Governmental pressure led a nationalised airline or a "chosen-instrument" carrier to take a decision having substantial financial implications in a sense which it would not have adopted acting on commercial considerations, e.g. the purchase of one make of aircraft which the carrier felt was less economic to operate (using "economic" in the widest sense) than another type of aircraft on offer.... [T]he very fact that European Airlines are by and large for the time being making reasonable operating profits might lead to the balance tilting too far in the direction of ignoring airline profitability. 1. For previous actions see Yearbook of Air and Space Law, 1965, p. 242. 2. Council of Europe Doc 1734. 3. Council of Europe Doc 2217.

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3. Air tariffs and "stranded" passengers There has been an enormous growth in European "inclusive tour" charter flights from a few thousand people in 1955 to well over 2 million in 1966... . In practice a great part of inclusive tour business takes place on a charter basis and the vast majority of charter flights are operated by independent carriers. There is nothing of course to stop major flag carriers entering the charter market themselves, and they do so. But normally the pattern of their operation only makes this possible on a comparatively small scale... . Clearly the public interest as a whole demands that everything should be done to ensure that charter operators observe the same high safety standards as those maintained by flag-carriers. Moreover there is an argument for seeing that persons going on inclusive tour holidays—whether the air travel is by charter aircraft or by scheduled service—should have some protection against being stranded abroad owing to lack of proper organization or to financial instability on the part of those responsible for the tour (though whether this is an air transport question is a matter of debate). But any measures, going beyond those necessary to achieve these objects, which had the result of making packaged holidays with air travel more expensive to the public would risk arousing widespread and wholly justifiable, public indignation. It is therefore desirable that the Economic Committee of the Consultative Assembly should follow closely future developments in this particular field.

4. Co-operation between European airlines The Report recalls a suggestion made in a previous Committee Report, reading as follows: Your Committee are somewhat concerned that ... while there exists in the European civil aviation field one body designed to facilitate co-operation and consultation between European Governments—namely the European Civil Aviation Conference—and another—the European Airlines Research Bureau— designed to facilitate co-operation and consultation between European airlines, there is no organisational framework in which a common discussion of problems both from the airline and the Government point of view is provided for. They recognise that ultimate responsibility must remain at a governmental level, if only because Governments have a responsibility to take decisions in the framework of the public interest as a whole and not only on the basis of what would suit airlines. Nevertheless they think it would be most valuable if, as a first experimental step, there were set up a Joint Committee, representing both ECAC and EARB, to examine problems of co-operation from both a governmental and airline point of view. Your Committee would add that they would have little sympathy with any argument that what they propose above would involve some constitutional innovation and should therefore be rejected. The pace of technical developments in the second half of the twentieth century is such that Governments, as well as others, must be prepared to accepte new procedures adapted to handling the novel problems stemming from the development of technology.

5. Revision of the limits of liability to passengers under the Warsaw/ Hague system Part of the problem stems from the fact that the practice of the courts in awarding damages for loss of expectation of life or for disablement (as well as

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Section IV — Inter-governmental Organizations compensation to dependants for loss of the breadwinner in the family) varies greatly from country to country, being generally markedly higher in developed countries than in developing ones. But if this fact presents a difficulty on a world-wide plane, it should not be a significant problem so far as member countries of ECAC are concerned. And your Rapporteur is convinced that ECAC should therefore examine what action in this field is called for in respect of intra-European flights, without waiting further for a world-wide agreement which very possibly may not materialise for a considerable time to come.

6. Decisions of the Consultative Assembly This Report of the Economic Committee was considered by the Consultative Assembly on 27 April 1967 when the following resolution and recommendation were adopted, as proposed by the Committee on the recommendation of its Rapporteur. RESOLUTION

344 (1967)*

ON CERTAIN FINANCIAL AND ECONOMIC ASPECTS OF AIR TRANSPORT OPERATIONS

The Assembly, 1. Thanks the European Civil Aviation Conference for its Reply (Doc 2146) to the Assembly's Report on "Certain Financial and Economic Aspects of Air Transport Operations" (Doc 1734); 2. Greatly appreciates the painstaking and detailed studies made by ECAC in preparing that reply; 3. Welcomes this new proof of the close and continuing relations between ECAC and the Council of Europe; 4. Believes that, despite the many uncertainties as to the problems that could be posed by the introduction around 1970 of aircraft with a load-carrying capacity of up to 500 passengers, it is overwhelmingly desirable in the interests of greater European co-operation in the air transport field that some continuing study, examination and discussion should be commenced now as to whether it would be advisable either for economic, for safety or for noise reasons to Iimit maximum aircraft size and, in the affirmative case, whether it would be advisable to draw up a Convention to this end. Should on the contrary the outcome of this examination show that such limitation of size is not desirable, the study should then be directed to resolving how such problems—in particular those of an operational character relating to capacity offered and to route structures as well as those relating to facilities e.g. to the adequacy of existing airport facilities for handling, processing and conveying to the town terminal as many as 500 passengers at a time—could best be resolved in a European framework; 5. Expresses its belief that ECAC is the ideal forum within which such action should be undertaken, and requests ECAC after studying the accompanying report to inform the Consultative Assembly in due course of what steps it proposes to take in this respect. • Assembly Debate on 27th April 1967 (6th Sitting) (See Doe 2217, report of the Economic

Committee). Text adopted by the Assembly on 27th April 1967 (6th Sitting).

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COUNCIL OF EUROPE RECOMMENDATAON 492 (1967) * ON EUROPEAN CIVIL AVIATION PROBLEMS

The Assembly, 1. Having considered the reply of the European Civil Aviation Conference (Doc 2146) to the Assembly's report on "certain financial and economic aspects of air transport operations" (Doc 1734); 2. Believing that the fruitful co-operation in European air transport matters which has been established amongst European States within the framework of ECAC should be further pursued and strengthened in the light of rapidly changing technological and economic factors; 3. Having regard to the forthcoming 6th Session of ECAC, 4. Recommends to the Committee of Ministers: (1) that the Draft ECAC Protocol extending common recognition of airworthiness certificates so far as the export and import of aircraft spare parts and engines are concerned should be implemented as soon as possible; (2) that, having regard to the certainty that airport facilities in Europe will need to be substantially developed in coming years, ECAC should carefully examine the possibilities of making a study of airport accounting and costing systems with a view to obtaining on a comparable basis within a European framework information on investments in, and operating costs of, airports, and on how those costs are divided between the air traveller and the public authorities concerned; (3) that further consideration should be given in ECAC to the possibility of devising machinery which would facilitate regular contacts at the highest level between Members of ECAC and Members of the European Airlines Research Bureau for an exchange of views on problems of common interest; (4) that, having regard to the fact that a recent agreement between International Air Transport Association (IATA) carriers in response to a US Civil Aeronautics Board (CAB) initiative has effectively modified in an upward sense the limits of compensation in respect of death or injury to an air passenger laid down in the Warsaw Convention of 1929 on Air Navigation and in the Hague Protocol of 1955 to that Convention in so far as flights to and from the USA are concerned, ECAC should examine what further action in this field if any is called for in respect of intra-European flights.

7. Official statements with respect to Resolution 344 and Recommendation 4824 At the sixth Session of the European Civil Aviation Conference, the Representative of the Council of Europe, with respect to paragraph 4 of the above Resolution 344 (1967), drew attention to: •

on 27th April 1967 (6th Sitting) (See Doc 2217, report of the Economic on 27th April 1967 (6th Sitting). 4. ICAO Doc 8694, ECAC/6, para. 63. Assembly Debate

Committee).

Text adopted by the Assembly

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Section IV — Inter-governmental Organizations a) The fact that airline operators in choosing new aircraft inevitably looked only at the costs to them, and that it was desirable for someone to study the overall economics of the question taking into account the infrastructural investments that would be necessitated in providing the additional navigational and airport facilities for larger and larger conventional aircraft on the one hand and for supersonic aircraft on the other. Aircraft manufacturers, like the Paris fashion houses, were concerned in regularly changing fashions so as to keep themselves in business, and if 500-seater aircraft were now with us in the sense that as many as 100 orders had been placed for B-747's, the U.S. manufacturers were already talking of designing 1000-seater aircraft. The Council of Europe did not seek to prejudge the answer which might emerge from such a study; what it did feel was that a study of the overall economics of such developments was highly desirable, and that the matter should not just be left to the play of forces between airlines and aircraft manufacturers; b) The need for some collective study of the broad range of economic, operational and handling problems that would arise with jumbo-jet operations in Europe, whether of a long-haul or of an intra-European character.

With respect to paragraph 4 of Recommendation 482 (1967) he made the following statement: a) Sub-paragraph (2), recommending a study of airport accounting and costing systems, had considerable importance in the context of making available on a comparable European basis part of the data that would be required for any study of the kind envisaged in paragraph 4 of Resolution 344. b) The arguments relating to sub-paragraph (3), recommending the facilitation of regular contacts at the highest level between Members of ECAC and Members of the EARB, were in essence very simple. If firstly the permanent heads of departments dealing with civil aviation in Member States of ECAC could profitably meet together; and if secondly the chairmen of European flagcarriers could also profitably meet together; and if thirdly each permanent head of department dealing with civil aviation in the Member States of ECAC regularly had discussions with the chairman (or chairmen) of his own State's flag-carrying airline (or airlines), it was indeed difficult to see why some collective discussion—as opposed to any decision-taking—should not be equally profitable between permanent heads of departments collectively and chairmen of airlines collectively. c) Sub-paragraph (4), recommending that ECAC should examine what further action in the field of the Warsaw Convention, if any, was called for in respect of intra-European flights, stemmed from a profound conviction on the part of the Assembly's Economic Committee that the circumstances of 1967 no longer justified the kind of exemption for air carriers from the ordinary law relating to liability for death and injury to passengers which had been accorded in 1930. A world-wide solution was of course highly desirable, but agreement on this was hindered by the very different circumstances obtaining in different parts of the world. At bottom, the question depended on political rather than technical considerations, and the Consultative Assembly felt very strongly that if agreement could not rapidly be reached on a universal basis some action had to be envisaged with regard to intra-European flights.

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II. EUROPEAN CIVIL AVIATION CONFERENCE (ECAC) ECAC held its sixth session from 26 June to 6 July 1967 at the Council of Europe in Strasbourg.5 All member States except Turkey attended the session. In addition, ICAO members of Australia, Congo (Brazzaville), Japan, and the United States of America were represented by observers. The following international organizations were also represented: Council of Europe, European Organisation for Civil Aviation Electronics (EUROCAE), European Airlines Research Bureau (EARB), Federation Aeronautique Internationale (FAI), International Air Transport Association (IATA), International Aircraft Owners and Pilots Association (IAOPA), International Chamber of Commerce (ICC), Institut du Transport Aerien (ITA), and the World Meteorological Organization (WMO). Officers of ECAC. Colonel Luis de Azcårraga (Spain) was unanimously re-elected President of ECAC for a three-year term. Mr. H. Winberg (Sweden) and Dr. O. Jettmar (Austria) were unanimously elected first and second vice-presidents, respectively. In connection with the reorganization of ECAC Mr. H. Winberg was also elected chairman of the Standing Committee Economic/1; Messrs. V. Veres (Portugal), P. Nottet (Belgium), and W. Guldimann (Switzerland) were elected chairmen of the Standing Committees Economic/2, Technical and Facilitation, respectively. Reorganization of ECAC and its methods of work. Following a recommendation of its Bureau,6 the Conference decided to establish a Working Group under the chairmanship of the President of ECAC to prepare and submit to the next intermediate plenary session "a revised version of the documents governing the organisation of ECAC, including its Rules of Procedure." The general principles, set forth below, are to be taken into account by the Working Group. The Bureau and COCOLI will be abolished. The election and functions of the President and Vice-Presidents shall be reorganized in the light of the following directives: There should be no more than three Vice-Presidents. The President7 could be re-elected for only one further consecutive period following a three-year term of office, and then only by a two-thirds majority of Member States. Candidatures for the office of President or Vice-President should be put forward at least 90 days before the opening date of the three-yearly session and that their names should be notified to all Member States by the Secretariat. The election should be by secret ballot, and, but for the case of re-election for a consecutive period, should be determined by a simple majority. 5. The Report of the Session, the Report of the President on the activities of the ECAC since its fifth session, the text of certain working papers, and the list of all working papers submitted to the sixth session, as well as statements by the Secretary General of the Council of Europe, by the President of ICAO, and by delegations, as well as the minutes of the plenary meetings, are published in ICAO Doc 8694, ECAC/6. 6. See Appendix 9 in ICAO Doc 8694. 7. Ibid., para. 141.

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Section IV — Inter governmental Organizations The functions of the President should be the same as in the past, and even strengthened owing to the suppression of the Bureaus In particular he will be in charge of convening plenary and extraordinary sessions as well as the meetings of the Committees. He will also decide upon the advisability of inviting to the meetings of the Standing Committees any person or body as expert or observer, in so far as such participation may appear useful or desirable. Furthermore, nothing in the proposed reorganisation shall prevent the President from entering into consultation, as has been done hitherto, with any person, body or representative of a Member State with a view to carrying out the tasks assigned him.

The Conference will hold triennial sessions and intermediate sessions:a A. Triennial session: The structure and functions of a session remain unchanged. If necessary, an Economic, a Technical and a Facilitation Committee may be established for the session. Observers from ICAO Member States, and from organisations may be accepted as in the past. The functions of the triennial session are: 1) To elect the President and Vice-Presidents of the Conference; 2) To elect the chairmen of the four Standing Committees; 3) To establish the general work programme of ECAC for a period of three years as well as methods for fulfilling the programme; 4) To approve estimates of expenditures for a period of three years; and 5) To adopt the draft recommendations, resolutions or multilateral agreements prepared by the Standing Committees. B. Intermediate session: In principle, this will be an annual meeting of as short duration as possible, comprising the Directors or SecretariesGeneral of civil aviation in Member States. Normally, only the Executive Committee will sit during intermediate sessions. In case of urgency a special intermediate session may be called by the President of ECAC on his own initiative or at the express request of at least three Member States. The main function of an intermediate session will be "to give approval, decisions and directions for the work of ECAC within the general frame of the work programme drawn up by the triennial session, and where necessary to add new items to the work programme when their urgency precludes referring them to such triennial sessions." Generally, it has the same functions as a triennial session, except for: election of President, Vice-Presidents, and Chairmen of the Standing Committees; general establishment of the work programme; and adoption of estimates of ECAC expenditures. The new constitution will provide for the possibility of a mail vote in the following terms: "on a proposal from one of the Standing Committees of ECAC adopted by a two-thirds majority of the States represented 8. See para. 139 of ICAO Doc 8694. 9. Ibid., paras. 142-148.

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at the meeting of the Committee, a mail vote should be taken on one or more draft resolutions or recommendations formulated by that Committee. Such draft resolutions and recommendations shall be considered adopted if, within sixty days of the notification of the said resolutions and recommendations by the Secretariat, one-third of the Member States have not notified their disapproval. In cases of this kind, it shall not be necessary to call a plenary session for the approval of such action." There will be a Co-ordinating Committee10 composed of the President and Vice-Presidents of ECAC and the chairmen of the Standing Committees, which will be in charge of the establishment of the calendar of all ECAC meetings of the professional agenda and of coordination of "the activity of the various Standing Committees and, to that end, to take all the necessary action to ensure completion of the work undertaken." Furthermore, "Four Standing Committees will be established, namely two Economic Committees, for scheduled air transport and for nonscheduled air transport respectively, plus a Technical Committee and a Facilitation Committee." These Committees will be made up in such a way as to permit the widest participation of Member States at the level most appropriate to consideration of the problems with which they are concerned. If possible, the chairmen of the Standing Committees will come from among the highest officials in charge in civil aviation in the Member States, account being taken of their experience in the field of activity involved. The chairmen will be elected in every case by the three-yearly sessions for a triennial period.1' Air transport matters discussed, and decisions taken thereon Concerning non-scheduled services and inclusive tours (IT), the Conference examined the progress report of its NSIT Study Group on these matters.12 It noted the continuing increase of inclusive tours (IT traffic), as indicated by the statistics prepared by the Group.13 "These statistics show that IT traffic continues to expand strongly, that its importance in the framework of intra-European air transport has been unceasingly growing and that it has been extending to new regions, such as Eastern Europe, the Middle East and the North of Africa. A new and very important factor has arisen in the course of the last three years: the prospect of the rapid expansion of intercontinental inclusive tour flights, especially on the North Atlantic, which may have far-reaching consequences on both long-haul and intra-European operations.14 Hence it was agreed that IT traffic be studied on a continuing basis by the NSIT Study Group. 10. Ibid., para. 149. 11. Ibid., paras. 151-153.

12. Ibid., Appendix 5. 13. Ibid., Appendix 6. See also R. Pledan, Volume and main traffic flows of Charter ITs in the Europe-Mediterranean Region, ITA Studies 66/10 (1966). 14. Ibid., para. 19.

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Section IV — Inter-governmental Organizations In this context, ECAC turned its attention to problems relating to stranded charter flight passengers.lb It agreed on the need for further study of the matter, with a view to the development and adoption by States of principles and standard clauses to be included in charter contracts between travel agents and carriers, the aim being to procure similar protection for passengers on non-scheduled flights as they enjoyed on scheduled services. Pending such further study, the Conference adopted Recommendation No. 1,16 having noted statements by Austria, Belgium, the Federal Republic of Germany and the Netherlands that, although fully supporting the spirit of the recommendation, they were unable, due to the nature of their national legislations, to guarantee full implementation of its provisions.

Following the decision of the U.S. Civil Aeronautics Board to authorize the organization of transatlantic tours by non-scheduled U.S. carriers, the Conference gave special attention to "problems related to nonscheduled operations by carriers of non-ECAC States, including those raised by inclusive tour flights to and from other continents."17 It expressed the need for "the possible disposition of a common European understanding of the matter" and for harmonization of the relevant regulations of Members of ECAC. The relevant parts of the ECAC report on this subject read as follows: The Conference noted the common view of the Directors General [of Civil Aviation] that i) this question had to be treated as a European problem, since Europe as a whole, rather than any given country, is concerned with the transatlantic tourist traffic; and ii) decisions in the matter would affect not only the relationships of individual European countries with the United States, but also intra-European relationships. In consequence, the Directors General had decided to evolve common economic regulations to deal with intercontinental inclusive tour operations, but with regard to the charter flights of US supplementals considered that it would first be necessary to seek agreement of the CAB on certain specific points which had been communicated to the CAB. The answer of the latter took the form of a statement by the observer for the United States of America at the Conference.'8

The Conference was in agreement with the Directors General and adopted Recommendation No. 2, harmonization of non-scheduled regulations. Furthermore, the Conference adopted Recommendation No. 3, programming authorization for inclusive tour flights. The Recommendation is intended to reinforce Recommendation No. 7 of ECAC/4,11 and Recommendation No. 4, form for notification of or application for authorization of inclusive tour charter flights, which deals with deviations from the Standard Application Form adopted in Recommendation No. 1 15. Ibid., paras. 25-27. 16. The text of this recommendation, Recommendation No. 1, protection of passengers of IT Charter flights, is reproduced in the Appendix to this note. 17. Ibid., paras. 28-33. 18. The points listed by ECAC and the statement by the CAB observer from the USA are reproduced in Chapter 16. 19. Recommendation No. 3 (see para. 35 of ICAO Doc 8694) is not reproduced here.

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of ECAC/5, and with third-party and passenger insurance information in that form.2° With respect to technical aspects of non-scheduled flights, namely the application to such operations of Annex 6 to the Chicago Convention, the Conference on the recommendation of the OPS study group, adopted Recommendation No. 11, factors to be taken into account before issuing an operating authority to non-scheduled operators, which is reproduced in the Appendix to this note. The Conference finally spelled out in great detail the future work programme and study methods of the NSIT Group and the new Economic Committee/2 with respect to problems relating to non-scheduled services and IT traffic 2' Economic questions of scheduled air transport.22 In October 1966, the ECAC Bureau had established a Study Group on scheduled air transport with the main object of bringing out clearly all the economic problems with which ECAC has to deal, i.e. not only problems encountered within Europe but also those which European governments and airlines may meet with outside the ECAC geographical area. Leaving matters considered by the NSIT Study Group to the latter, the new Group had decided to deal with various questions within its competence under the following headings: (a) prospective study of scheduled air passenger transport in the next five years, taking particular account of the problems which will arise with the introduction of jumbo jets and later of supersonic aircraft; (b) consideration of the problems raised by the development of air freight; and (c) economics of the infrastructure, considered in the light of the work under (a) and (b). The Conference agreed that these questions should take priority in the work programme of the Economic Committee/1 during the coming five years and added that in studying these problems, it would be necessary to take into account all means of improving not only the economics of air transport operations but also the services provided to users. All economic problems with which ECAC States are faced in scheduled air transport should be brought out clearly, including not only those encountered within Europe but also those which European governments and airlines may meet with outside the ECAC geographical area. Nothing in the constitution of ECAC suggests that ECAC should not extend its studies in this way to cover the extra-European activity of European airlines and the activity of non-European airlines within Europe. Questions relating to the multilateral agreement on airworthiness certificates for imported aircraft were again considered by the Conference. Although widely used, the "certificate of airworthiness for export" appears to be without an established legal status, for it is not provided 20. See text of Recommendation No. 4 in the Appendix to this note. 21. ICAO Doc 8694, paras. 38-45. 22. See also hereunder "Relations with Council of Europe."

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Section IV — Inter-governmental Organizations for in the Chicago Convention or in its Annexes or in the ECAC multilateral agreement. A question arises therefore, of the obligation and duties of the State which delivers such a certificate: "The Conference, taking into account the difficulties likely to be encountered when attempting to confer a legal status on the certificate of airworthiness, felt that, as regards the validation by the State of import of a certificate of airworthiness issued by the competent authority of the State of export before exporting an aircraft, a certificate of airworthiness for export should be recognized by the State of import as having the same value as a certificate of airworthiness issued by the importing State."23 Since ECAC States had expressed their consent to a recommendation embodying this view, the Conference adopted Recommendation No. 5, status of certificate of airworthiness for export, which introduces in Recommendation No. 40 of ECAC/4 the following paragraph 2: "that the State of import, when granting validation to the `certificate of airworthiness for export,' should be recognized to have assumed the same responsibility for the aircraft as if it had delivered the certificate of airworthiness provided for in the Chicago Convention." The Conference realized "that this action would not necessarily solve all the problems but felt that it would be a practical solution."24 On the difficult question of languages to be used in documents associated with the Multilateral Agreement, the study group ACM had submitted the following recommendations: I) that, whenever another language is used for the text of certificates of airworthiness, including certificates for export, and type certificates and their associated data sheets, the English text shall also be provided; and 2) that the responsibility for providing the translation shall rest with the applicant for the validation or issue of the certificate of airworthiness, but where the content of the documents is such that it can effect the airworthiness of the aircraft, the responsibility for approval of the translation shall rest with the administration responsible for airworthiness in the importing State; and . . . . that, in the case of other aircraft documents, such as: flight manuals, weight schedules, maintenance manuals, maintenance schedules, repair manuals, modification records, catalogues of spare parts, overhaul manuals and service bulletins, it is desirable that they should be translated into English or such other language as may be agreed between the importing and exporting States.25

Among the disputed questions was the determination of the State responsible for approving the translation, whether it should be the State of export or of import. Since the Conference could not agree on a recommendation regarding translation of basic information provided by an exporting airworthiness authority, it decided to leave the matter to be settled in bilateral arrangements between the two authorities concerned.2e 23. 24. 25. 26.

Ibid., Ibid., Ibid., Ibid.,

para. 67. para. 67. para. 68. para. 70 in fine.

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The Conference also approved a comprehensive list of documents to be attached to the certificate of airworthiness at the time of export, while urging States to "ask only for those documents for which they have a genuine need."27 Recommendation No. 7, guidance material concerning the documents to be attached to the certificate of airworthiness at the time of export, deals with that subject.28 On the question of interpretation and definition of the "special conditions" mentioned in the multilateral agreement relating to certificates of airworthiness for imported aircraft, the Conference noted with approval that "the study group had discussed the subject of `special conditions' and came to the conclusion that it would not be possible to resolve fully the difficulties involved, the reason being that, although there are special conditions of a general or permanent nature which can be specified, the particular conditions laid down by a State for the acceptance of a particular type of aircraft depend on many considerations (e.g. type of aircraft, individual features, equipment fitted, etc.), and consequently such special conditions can only be established as and when the need arises on a bilateral basis." The Conference desired each State to supply information on "its special conditions of a general and administrative nature," to be disseminated in an information paper. Accordingly, it adopted Recommendation No. 8, publication of an information paper relating to the airworthiness regulations of Member States and the special conditions to be applied.29 In order to extend the multilateral agreement to the import of engines and engine/propeller combinations, the Conference adopted a draft Protocol prepared by the ACM Study Group and recommended (Recommendation No. 9) that Member States accept and apply it on a provisional basis from 1 January 1968.3° Regarding the Draft Protocol on replacement parts for civil aircraft" which have already been imported under the multilateral agreement, the Bureau of ECAC had decided that it should have only the status of a recommendation. The Conference agreed that the time had come to speed up the procedure designed to transform the draft Protocol to a formal Protocol to the multilateral agreement on certificates of airworthiness; but, being aware of possible "difficulties in establishing the Protocol in its proper legal form," it decided to adopt Recommendation No. 6, extension of the multilateral agreement to include replacement parts, which reads, in part, as follows:32

27. 28. 29. 30. 31. 32.

Ibid., para. 73. See the text of Recommendation No. 7 in the Appendix to this note. ICAO Doc 8694, paras. 7475. The text of Recommendation No. 8 is not reproduced here. Ibid., paras. 76-77. See the text of the draft Protocol in Yearbook of Air and Space Law, 1966, p. 127. ibfd., para. 71.

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Section IV — Inter-governmental Organizations Recognizing, however, that before raising the provisions of this Protocol to the status of an international agreement, it is highly desirable to gain practical experience of this implementation, THE CONFERENCE RECOMMENDS that Member States accept and apply the provisions of this draft Protocol as specified hereunder from 1 June 1966. [Follows the text of the draft Protocol.333

Other Matters As reported in Chapter 10, above, ICAO is engaged in developing Standards and Recommended Practices for international general aviation, a field in which ECAC is also interested. Recognizing that the duplication and overlapping of work by the ECAC/IFR Group and by ICAO is inevitable if they labour in the same field, the Conference merely adopted a recommendation on periodic proficiency checks for private and professional pilots with IFR ratings; see Recommendation No. 12, renewal of IFR ratings for pilots in private aviation.34 With respect to the implementation in Europe of the Standards and Recommended Practices appearing in Annex 1, with particular reference to the approval by States of maintenance organizations in the special cases where no national licensing system exists, the Conference recommended "that Member States provide the ECAC Secretariat, before 1 January 1968, with all the necessary information to bring ECAC Information Paper No. 9 up to date, and that such information should include details of their practices and procedures for ensuring that all maintenance and overhaul work is carried out to the satisfaction of their airworthiness authorities"; see Recommendation No. 13, aircraft maintenance organizations standards and recommended practices.35 Finally, the Conference adopted Recommendation No. 14 which deals with procedures for the expeditious interchange of aircraft without crew;36 and, in the field of aircraft safety, Recommendation No. 15 which recommends "that ECAC Member States agree to exchange among themselves all relevant air safety material such as air safety bulletins and reports of defects of a sufficiently serious nature as to have a direct bearing on airworthiness, as soon as such is available.X37 Relations with Council of Europe The Conference heard statements of the representative of the Council of Europe with respect to the Council's Resolution 344 (1967) and Recommendation 492 (1967).38 The Conference thereupon took the following action:" 33. The Conference noted (para. 67 of its Report) that the recommendation in fact has been applied by ECAC States since 1 July 1966. 34. Ibid., para. 110; see also paras. 104-109.—The text of Recommendation No. 12 is not reproduced here. 35. Ibid., paras. 121-124.—The text of Recommendation No. 13 is not reproduced here. 36. Ibid., paras. 125-127.—The text of Recommendation No. 14 is reproduced in the Appendix to this note. 37. Ibid., para. 128. 38. For discussions on and text of resolutions, see Section I of this chapter. 39. Ibid., paras. 60 and 61.

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EUROPEAN CIVIL AVIATION CONFERENCE (ECAC) As regards paragraph 4 of the resolution, dealing with noise and with the measures to be taken in this connection, the Conference decided to ask the Secretariat to approach all of the international organizations interested in this problem, including the organizers of the symposium on noise held in November 1966 in London, with a view to obtaining full information on the studies now in progress. Concerning paragraph 4, sub-paragraph (3), of the recommendation about the development of machinery to facilitate top-level contacts of a regular nature between the members of ECAC and the members of the EARB, the Conference felt that its new constitution would enable the President to bring about the meetings desired by the Consultative Assembly of the Council of Europe. It considered in particular that the replacement of COCOLI by an annual session would provide the possibility for this kind of liaison. APPENDIX RECOMMENDATION NO. I PROTECTION OF PASSENGERS OF IT CHARTER FLIGHTS

ECAC Member States have concurred in the need to adopt safety regulations and to agree on certain administrative practices for the protection of the users of inclusive tour charter flights and for the expeditious granting of permissions for such flights; and

WHEREAS

there seems to be general agreement that the action taken in this field should be enlarged through the explicit statement and the common adoption by States of certain requirements for the proper conduct of inclusive tour charter flights; and

WHEREAS

the Warsaw Convention, as completed and amended by the Hague Protocol, provides some protection of passengers, namely with respect to liabilities not only in the event of death and injuries but also of delays; and

WHEREAS

is recognized that the basic responsibility for the supervision of the activity of a given operator rests with the State of registry of his aircraft, this being the object of Recommendation No. 30 of ECAC/5,

WHEREAS it

THE CONFERENCE RECOMMENDS

1) that each Member State of ECAC, when considering an application for the operation of inclusive tour charter flights to or from its territory (where permission for such flights is required), shall have regard, inter alia, to the following matters and, so far as it is not in contradiction with the national law, may require the applicant to produce evidence relating thereto: a) the arrangement, whether by contract or otherwise howsoever, for the provision of transportation for the outward and return journey in connection with the tour, both journeys being deemed inseparable under the definition of an inclusive tour; b) the adequacy, having regard to normal international standards, of advertising, publicity and booking arangements in connection with the inclusive tour flights and, in particular, whether by means of such advertising, publicity or booking arrangements, passengers have been or will be informed before entering into contract of carriage:

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Section IV — Inter-governmental Organizations i) name and address of the firm or organization responsible for the tour; ii) the means of transport (including names of the carriers, type of aircraft and number of seats offered); iii) the tour itinerary, including hotels (name of hotel and length of stay in each case); iv) minimum overall price of the tour, inclusive of all facilities and amenities; 2) that each Member State which has authorized an inclusive tour flight or series of such flights reserves the right to request from the carrier a report on the flight or flights, indicating the number of passengers carried and whether the flight or flights have been performed in accordance with the permission and, if not, the differences, such, for example, as any delays incurred. Such report shall be furnished within the period specified by the aeronautical authorities; 3) Member States, without prejudice to any action which may be taken under the national law, shall notify the State of registry of the aircraft and the State of the tour operator whenever it appears to them from their inquiries that any of the matters specified in paragraph 1) hereof have not been fulfilled in connection with any inclusive tour permitted into its territory. RECOMMENDATION NO.

4

FORM FOR NOTIFICATION OF OR APPLICATION FOR AUTHORIZATION OF INCLUSIVE TOUR CHARTER FLIGHTS CONSIDERING

that the highest possible degree of standardization in the requirements of Member States for information concerning requests for inclusive tour charter flights may speed up the consideration of and the decision on such requests,

THE CONFERENCE RECOMMENDS

1) that ECAC Member States adopt a form for notification of, or application for, authorization for inclusive tour charter flights which follows as closely as possible the form shown in the following annex. 2) that Member States whose requirements differ from those provided for in the form shown in the following annex should publish in their Aeronautical Information Publications the form they actually adopt; 3) that Recommendation No. 1 of ECAC/5 be considered superseded. ANNEX FORM FOR NOTIFICATION OF OR APPLICATION FOR AUTHORIZATION OF INCLUSIVE TOUR [CHARTER] FLIGHTS

Application No.: Dated: 1. Full name and address of operator: 2. Registration and nationality mark, callsign, type and capacity of aircraft: 3. Date or, in case of series of flights, dates, and, wherever possible, estimated time(s) or arrival at and departure from the airport of the State to which the notification or application is addressed:

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4. Itinerary of the aircraft: 5. Name and address of the travel agency or tour organizer: 6. Details of the conditions under which the inclusive tour is organized:*' a) Minimum price payable by passenger for the inclusive tour: b) Complete routing of inclusive tour: c) Duration of inclusive tour (including stay at hotel): d) Number of meals included per day per passenger: 7. Evidence of insurance (description, number and date of document which must accompany this form): a) Liabilities as carrier of passengers: b) Third party liabilities: RECOMMENDATION No. 7 GUIDANCE MATERIAL CONCERNING THE DOCUMENTS TO BE ATTACHED TO THE CERTIFICATE OF AIRWORTHINESS AT THE TIME OF EXPORT

the documents listed in the schedule to the Multilateral Agreement are insufficient in themselves for the certification of an imported aircraft; and

WHEREAS

WHEREAS

a Member State requires only those documents appropriate to its needs,

THE CONFERENCE RECOMMENDS

1) that States supply a detailed list of the documents that they are likely to require at the time of import of an aircraft and that an Information Paper be prepared and published to incorporate this information, and 2) that States be encouraged to review the information supplied periodically and the Information Paper be amended accordingly. RECOMMENDATION NO. 11 FACTORS TO BE TAKEN INTO ACCOUNT BEFORE ISSUING AN OPERATING AUTHORITY TO NON-SCHEDULED OPERATIONS THE CONFERENCE RECOMMENDS

1)t that the technical, operations and maintenance organizations should be examined and verified by inspections carried out by the State and/or, if appropriate, by a delegated authority before issue of an operating certificate and approved or accepted as satisfactory by the State; 2)t that operators should be required, as part of this approval or acceptance to submit to the State a plan showing clearly how and by whom the various functions in the technical, operations and maintenance organizations are administered, including the names of the senior personnel; 3) that States maintain, either directly or indirectly, a close control of all maintenance workshops and the work they perform; 4) that operational and maintenance personnel should be qualified in accordance with the national regulations; 'These details are not always required. t Firms specialized in the maintenance of aircraft and their equipment and working for operators must be subject to the same rules as those fixed for clauses 1) and 2) above before they can carry out their activity.

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Section 1V — Inter-governmental Organizations 5) that, whereas a prerequisite for safe operation is a comprehensive operations manual, this manual should be prepared by the operator and examined and approved or accepted by the competent State services; 6) that a comprehensive maintenance manual, which is indispensable for the correct carrying out of maintenance work and is of assistance in the checking of this work, should be prepared by the operator, taking account of the manufacturer's manual; and that this document should then be examined and approved or accepted by the national authority; 7) that the competent State services should verify the adequacy of operators' arrangements for the preparation and conduct of flights so as to ensure that statutory requirements and the provisions of operations manuals are complied with; and 8) that detailed periodic inspections, including in-flight inspections, should be carried out by the competent State services and/or delegated authority in order to ensure that operators' services are maintaining the standard required for the holding of an operating authority. RECOMMENDATION NO.

14

PROCEDURES FOR THE EXPEDITIOUS INTERCHANGE OF AIRCRAFT WITHOUT CREW CONSIDERING

that the interchange of aircraft is a form of aviation activity of great economic interest which is likely to develop;

that the flexibility required to meet the multiple and widely varying cases of interchange is hardly compatible with bilateral or multilateral agreements, which are too formal in character and are concluded in advance;

CONSIDERING

that, in spite of the numerous legal problems in abeyance, maximum safety must be ensured;

CONSIDERING

that interchange without crew raises appreciably different problems from interchange with crew,

CONSIDERING

THE CONFERENCE RECOMMENDS

1) that the aviation authorities of the parties concerned obtain details of the technical conditions associated with any interchange agreement; 2) that the aviation authorities ensure that the technical clauses of the contracts concluded' between the operators make clear the obligations of the actual operator with respect to safety, as well as the methods of operation for the conduct of flights; 3) that the aviation authorities make arrangements as necessary to enable the State of the operator effectively to exercise the supervisory functions normally incumbent upon the State of registry; and 4) that the State of the operator introduce in its national regulations, if required, the modifications necessary to enable it to accept such delegation of functions and to empower it to enforce compliance with the obligations arising under Annex 6 upon the operator. •

Those details are not always required.

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Section V Non-governmental Organizations

Chapter 12

International Organizations INTERNATIONAL AIR TRANSPORT ASSOCIATION (IATA) A. ANNUAL REPORT OF THE DIRECTOR GENERAL TO THE TWENTY-THIRD ANNUAL GENERAL MEETING, 1967 (EXTRACTS) 1966 Traffic growth rates in world scheduled air transport, although high in 1966, were lower than those experienced in 1965. World passenger traffic increased by 15.2 per cent compared with 15.8 per cent in 1965; freight traffic by 18.1 per cent compared with 27.2 per cent; and total traffic measured in tonne-kilometres by 17.2 per cent compared with 18.8 per cent. In 1966 the world's airlines flew 200 million passengers and 228,000 million passenger-kilometres on their international and domestic scheduled services. Freight traffic increased to 5,860 million tonne-kilometres, mail traffic to 1,530 million tonne-kilometres, while total scheduled traffic increased to 27,490 million tonne-kilometres. The IATA Member airlines expanded their share of this world traffic slightly in 1966. Our 101 member airlines scheduled traffic amounted to 24,943 million tonne-kilometres or 90.7 per cent of the world total. IATA Members flew 157,911,000 passengers and 204,025 million passenger-kilometres, in addition to 5,250 million tonne-kilometres of freight and 1,500 million tonne-kilometres of mail traffic on their scheduled services.

TRAFFIC RESULTS

REGIONAL TRAFFIC RESULTS

On the most important international route, the North Atlantic, IATA Members flew a total of 4.7 million passengers in 1966-600,000 more than in 1965. This represents an increase of 14.9 per cent which is only slightly less than the 1965 increase of 15.2 per cent. Scheduled passenger traffic was up 16.2 per cent to 4,198,000 passengers, with both first and tourist class traffic sharing in this increase. However, the charter passenger total moved up by only 4.7 per cent to 502,900 passengers. The average scheduled passenger load factor showed an improvement of 1.7 percentage points to 58.8 per cent. On the South Atlantic route nine IATA Members carried 182,000 scheduled passengers, resulting in an impressive 41.1 per cent increase over 1965. But this was partly due to the addition of another reporting airline to the traffic totals. Seating capacity increased by a higher 51.1 per cent so that the average passenger load factor dropped 4.7 percentage points to 56.4 per cent. South Atlantic cargo and mail traffic also increased at higher rates during 1966. Cargo traffic was up by 45 per cent to 2,955 tonnes, and mail up 27 per cent to 1,350 tonnes. On major international routes—other than the North Atlantic, South Atlantic and Intra-European—there were, as usual, considerable variations in passenger traffic growth rates during 1966 according to figures prepared by the IATA Cost Committee. Growth rates ranged from a moderate 4 per cent increase for the South Pacific to a high of 22 per cent for the North and Mid-Pacific. In general, passenger traffic growth rates were higher on these routes in 1966 than in 1965. Average passenger load factors improved on five major routes/areas and declined on three others in 1966. First Class passenger load factors were again generally ...

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Section V — Non-governmental Organizations much lower than those for Economy Class (36 per cent to 49 per cent vs 46 per cent to 62 per cent). As to traffic development in 1967, IATA Members' North Atlantic scheduled passenger traffic during the first nine months shows an increase of 18.6 per cent over the same period last year. This represents a higher percentage growth rate than that recorded for the full year 1966. However, IATA Members' North Atlantic charter passenger traffic increased by less than 1 per cent. Scheduled cargo traffic increased by 13.0 per cent and mail traffic by 14.7 per cent. Recent IATA Cost Committee estimates for 1967, prepared earlier this year, indicated that traffic growth rates on most major international routes would be either maintained or decline as compared with 1966. AIR FREIGHT ... I am pleased to report that many new lower international air freight rates, agreed at the IATA Composite Cargo Conference earlier this year, became effective on October 1, 1967, after receiving the requisite government approvals. These are expected to have a stimulating effect on the development of traffic. In addition the following new aids to the physical movement of air freight were introduced as part of an overall effort to improve the efficiency of air freight services: (a) a new simplified and transmittable air waybill to attract maximum benefit from use with electronic equipment as part of a general program to develop a universal air freight control system; (b) a new world-wide commodity classification system for establishing specific commodity rates replacing the previous method and based on the United Nations standard international trade classification; and (c) a revised container program including increasing discounts for the use of standard size containers. FINANCIAL RESULTS ... Since 1960 non-scheduled revenues have increased at a much faster rate than scheduled revenues. As a result the non-scheduled share of total traffic revenues nearly doubled from 3.5 per cent in 1960 to 6.1 per cent in 1966. At least part of scheduled airline charter revenues can be attributed to an increase in noncommercial charters. In 1966 some 65 per cent of IATA Members' international non-scheduled traffic consisted of such charters and only 35 per cent of commercial charters. But IATA Members are not the only airlines heavily involved in non-commercial charter activity. AIRPORT AND ROUTE FACILITY CHARGES

Rising airport charges continue to be a matter of concern in view of the generally declining airline unit yields and rising unit costs, and the charges paid by the carriers are going up at a faster rate than other costs. Although the airlines are on record as being willing to pay their share of allocable costs, it is hoped that authorities levying charges will observe the concept of a progressive approach to the recovery of costs where this is necessary, since unduly heavy increases in charges against the airlines can result in higher fares and rates, or at least defer the further lowering of fares and rates for an indefinite period. It is important that governmental and other authorities when considering charges bear in mind that international air transport, by the nature of its undertaking, is essentially a joint venture. Often the national airline operating international services is publicly owned, and to this extent policy actions of administrations concerning various levels of charges not only have a profound effect on the economic health of the air transport industry but also on the economics of the countries concerned.

178

INTERNATIONAL ORGANIZATIONS Airlines are continually facing increased charges throughout the world, and the inter-relationships of nations are such that decisions concerning charges against civil aviation in one country can have consequences reaching far beyond the boundaries of that country. Precedents and examples set by one administration all too often create an impact on other governments with grave repercussions for the international carriers. A continuation of this tendency for adverse types and levels of charges to be established by other countries will eventually affect all carriers, inhibit the lowering of unit costs and levels of fares and rates, and hence the greater growth of air commerce. OPERATING FLEET

Changes in the Operating Fleet of IATA Member airlines during 1966 showed the trend towards jet re-equipment is continuing. The past year saw a considerable upsurge in orders for new aircraft. Jet aircraft will continue to account for an increasing proportion of operating fleets in the years ahead—they already produce 80 per cent of the capacity provided on world scheduled routes. At the end of 1966 IATA Members' operating fleet consisted of 1,558 jets, 672 turboprops, 1,277 piston-engined aircraft and 34 helicopters. Although the fleet total was up by only 80 aircraft or 2 per cent over the previous year, it was a more productive fleet as a result of further changes in its composition. The number of jets increased by 332 or 27 per cent. At the same time the piston-engined aircraft total dropped by 262 aircraft or 17 per cent with the continued phasing out of older aircraft. Sustained recent growth in air traffic and forecasts of further substantial growth in the years ahead have been major factors in encouraging the spectacular number of new aircraft orders. By October 1967 IATA Member airlines had more than 1,600 jets in service with an estimated original purchase value of $9,600 million. But at the same time IATA Members had approximately 1,290 additional jet aircraft on order, representing an even high estimated capital investment of $15,000 million. This reflects the continued trend towards larger aircraft with higher unit values. The jets on order include 192 SSTs (72 Concordes and 120 Boeing SSTs); some 300 high capacity McDonnell Douglas DC-8-60 series and Boeing 747s; and about 800 other jet aircraft, for delivery from 1967 onwards. B. REPORT OF THE LEGAL COMMITTEE TO THE TWENTY-THIRD ANNUAL GENERAL MEETING, 1967 Our primary concern in respect to an amendment to the Warsaw Convention is to find a solution which would be generally acceptable in a large number of jurisdictions. Our fear is that the four solutions may not receive such general acceptance. For this reason the possibility of other long-term solutions should not be overlooked. One such alternative suggested was a solution which would give a state the option to choose the limit for its international traffic, preserving always the single liability system of the Convention. So much for the long-term solutions to the problem under the Warsaw Convention. You may be interested to know that the Interim Montreal Agreement has achieved wide acceptance. By the end of March 1967, there were sixty IATA Members and thirty-one non-IATA airlines parties to the Agreement. In addition, there are carriers which have adopted the limits of the Agreement but not the waiver of the defences under Article 20(1). Like any other new international agreement, the Montreal Agreement has attracted attention and has received considerable criticism. In fact, the ICAO Panel of Experts had recorded certain technical problems with the text of the Agreement and the Council of ICAO has

179

Section V — Non-governmental Organizations brought these problems to the attention of both IATA and the US Government for a possible review. At the time of writing this Report, it is not possible to say whether the informal consultations between IATA and the US Government agencies will result in any change in the Montreal Agreement, but if there are any developments in this matter, we will bring them to your attention in a supplemental report. We would like to mention in passing that both IATA and ICAO have made efforts during the last year to encourage ratification of the Warsaw Convention and the Hague Protocol by states which have not done so as yet. We have received reports that some fifteen countries are presently considering ratification of the Convention. This is encouraging. In this connection, we would wish to mention that some of the provisions of the Convention do appear to present some practical difficulties and the limitation of liability of carriers may have been jeopardized by a court decision in one jurisdiction. Notwithstanding these developments in our opinion the Warsaw Convention is a valuable international treaty which provides a uniform system of liability applicable in a large part of the world and we should continue to support ratification by states which have not done so as yet. CARRIERS' LIABILITY FOR CARRIAGE OF MAIL

In our report last year we submitted for your approval a declaration on the meaning of liability provisions of the Universal Postal Convention insofar as they appear to govern carriers involved in the carriage of mail. This declaration stated that under the Convention a carrier is only liable to the postal authority, and not to the sender. It is our hope that the Universal Postal Union will concur with this declaration which will resolve any doubts on this score. We have taken the matter a little further this year and have considered the possibility of recommending that the next Universal Postal Congress amend the Convention so as to provide specifically for the clarification. For this reason we have decided to reactivate our Postal Sub-Committee to work with the UPU/IATA Contact Committee and to prepare an appropriate recommendation. In the event that there are further developments in this regard before the AGM, we will submit a supplemental report. PASSENGER TICKET-BAGGAGE CHECK

As in previous years, we also dealt with subjects that were referred to us by the Traffic Conference or their Working Groups. Amongst these was a proposal for a Group Passenger Ticket and Baggage Check. This proposal contemplates the use of a "master" ticket containing the names of passengers and airline accounting information and a "ticket/boarding pass" for each passenger. There seemed to be no basic legal objections with this plan, so long as each passenger received well in advance of boarding a document called a passenger ticket which includes in it the Warsaw Convention requirements for the passenger ticket. We also considered a request by the Coordination Meeting on High Capacity Aircraft to find some alternative solutions to the liability problem which may exist under the Warsaw Convention if carriers undertake to delete baggage weight information from the baggage check in order to introduce a "piece baggage" handling system. On previous occasions we have expressed the view that deletion of baggage weight information from the baggage check may expose a carrier to the sanction of unlimited liability under the terms of Article 4 of the Warsaw Convention. This is not the case under the Hague Protocol whose terms do not require weight information on the baggage check and therefore there appear to be no legal objec-

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INTERNATIONAL ORGANIZATIONS

tions to introducing the "piece baggage" handling system with respect to carriage governed by the Hague Protocol. From a practical handling point of view; however, it is impracticable to distinguish between baggage to which the Warsaw Convention applies and baggage governed by the Hague Protocol. We have considered, therefore, the possibility of limiting the liability of the carrier by contract in the event that the carrier has lost the limitation under the Warsaw Convention. In some jurisdictions contractual limitation of liability by carriers is acceptable if a choice-of-rate system is offered to the passenger. However, a difficulty arises under the terms of the Warsaw Convention. Under it carriers may enter into contracts with passengers covering the subject matter of the Convention only when such contracts do not contain provisions "tending to relieve the carrier of liability or to fix a lower limit than that which is laid down" in the Convention; otherwise the contracts may be considered in violation of Article 23 of the Convention. While there is for these reasons a certain risk of losing the limit of liability with respect to Warsaw traffic if the "piece baggage" concept is adopted, uniform conditions of contract could be developed. We have made recommendations to the Traffic Conferences regarding the principles which should be incorporated in such contracts. We have also considered a new form of air waybill developed by a Traffic Conference Working Group and relevant procedures and have advised the Traffic Conferences that from a legal point of view these procedures were acceptable. AGENCY MATTERS

We have appointed an Agency Sub-Committee to look into the legal aspects of the entire IATA agency programme and to review the various resolutions and procedures which are the basis of this programme. REVIEW OF THE OBJECTIVES AND WORKING METHODS OF THE LEGAL COMMITTEE

In reviewing our working methods, we noted that in the past we have not had an opportunity fully to consider certain matters which have been referred to this Committee. This has given us some concern particularly in view of our desire to consider potential legal problems arising out of technological and other developments in air transport. We believe that through planning and closer coordination between the various IATA Committees and Conferences and the Legal Committee this programming could improve and the delays could be avoided. We have, therefore, recommended that in addition to the liaison maintained between the Secretary of the Legal Committee and the Secretaries of the other IATA Committees and Conferences, the Director General of IATA should arrange for liaison between the Chairman of the Legal Committee and the Chairmen of the other IATA Committees and Conferences in connection with preparation for their meetings or other action. In this way the legal aspects of technical and commercial developments will be able to be considered by the Legal Committee well in advance of final determination by other IATA bodies. We have also established a Planning Sub-Committee which will work in consultation with the Secretariat in attempting to define legal problems of future interest to the industry for the Committee's consideration. This Sub-Committee will also keep in close contact with other IATA Committees and Conferences concerned with similar planning activity in IATA.

181

Section VI Legislation

Chapter 13

Legislative Texts ARGENTINA Law 17,094, of 29 December 1966, on Sovereignty Over Seas and Seabed OJJ Its Coast* Pursuant to the powers conferred by Article 5 of the Statute of the Argentine Revolution, The President of the Argentine Nation, approves and promulgates [the following] with force of law: ARTICLE I—The sovereignty of the Argentine Nation extends to the seas contiguous to its territory out to a distance of two hundred marine miles, measured from the lowest water-mark, save in the cases of the Gulfs of San Matias, Nuevo, and San Jorge, from which the measurement shall be made from a line that joins the capes forming their entrances.

2—The sovereignty of the Argentine Nation likewise extends to the sea bed and the subsoil of the submarine zones contiguous to its territory down to a depth of two hundred meters, or deeper than this limit, insofar as the depth of the overlying waters permits the exploitation of the natural resources of said zones. ARTICLE

3—Freedom of navigation and of air navigation shall not be affected by the provisions of the present law.

ARTICLE

ARTICLE 4—The National Executive Power shall, within ninety days from the date of promulgation of the present law, issue a regulation to determine the forms and conditions under which activities of exploration and exploitation of natural resources of the sea may be developed by foreign vessels within the two hundred mile zone referred to in this law. 5—Let this law be communicated, published, and forwarded to the National Bureau of the Official Register to be filed.

ARTICLE

UNITED KINGDOM 1. Tokyo Convention Act 1967 Elizabeth II, Chap. 52 An Act to make provision with a view to the ratification on behalf of the United Kingdom of the Convention on Offences and certain other Acts Committed on board Aircraft, signed in Tokyo on 14th September 1963, and to give effect to certain provisions relating to piracy of the Convention on the High Seas, signed in Geneva on 29th April 1958; and for purposes connected with the matters aforesaid. [14th July 1967] This translation was established by Helen L. Clagett from the Spanish text, published in the Boletin O/lclai do la Republica Argentina of 10 January 1967, and published in VI International Legal Materials, 60 (1967). It is reproduced here with the latter's kind permission.

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Section VI — Legislation Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:Application of criminal law to aircraft.

1. (1) Any act or omission taking place on board a Britishcontrolled aircraft while in flight elsewhere than in or over the United Kingdom which, if taking place in, or in a part of, the United Kingdom, would constitute an offence under the law in force in, or in that part of, the United Kingdom shall constitute that offence: Provided that this subsection shall not apply to any act or omission which is expressly or impliedly authorised by or under that law when taking place outside the United Kingdom.

1962 c. 8.

1949 c. 67. Provisions as to extradition. 1870 c. 52.

(2) No proceedings for any offence under the law in force in, or in a part of, the United Kingdom committed on board an aircraft while in flight elsewhere than in or over the United Kingdom (other than an offence under, or under any instrument made under, the Civil Aviation Acts 1949 and 1960 or the Civil Aviation (Eurocontrol) Act 1962) shall be instituted— (n) in England and Wales, except by or with the consent of the Director of Public Prosecutions; or (b) in Northern Ireland, except by or with the consent of the Attorney General for Northern Ireland; but the foregoing provisions of this subsection shall not prevent the arrest, or the issue of a warrant for the arrest, of any person in respect of any offence, or the remanding in custody or on bail of any person charged with any offence. (3) For the purpose of conferring jurisdiction, any offence under the law in force in, or in a part of, the United Kingdom committed on board an aircraft in flight shall be deemed to have been committed in any place in the United Kingdom (or, as the case may be, in that part thereof) where the offender may for the time being be; and section 62 (1) of the Civil Aviation Act 1949 is hereby repealed. 2. (1) For the purposes of the application of the Extradition Act 1870 to crimes committed on board an aircraft in flight, any aircraft registered in a Convention country shall at any time while that aircraft is in flight be deemed to be within the jurisdiction of that country, whether or not it is for the time being also within the jurisdiction of any other country; and paragraphs (1) to (3) of section 16 of that Act (which have effect where a person's surrender is sought in respect of a crime committed on board a vessel on the high seas which comes into any port of the United Kingdom) shall have effect also where a person's surrender is sought in respect of a crime committed on board an aircraft in flight which lands in the United Kingdom, but as if in the said paragraph (3) for references to the port where the vessel lies there were substituted references to the place at which the person whose surrender is sought is disembarked.

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(2) Sections 17 and 22 of the said Act of 1870 (which relate to the extent of that Act) shall apply to subsection (1) of this section as if that subsection were included in that Act. 3. (I) The provisions of subsections (2) to (5) of this section Powers of shall have effect for the purposes of any proceedings before any commander of aircraft. court in the United Kingdom. (2) If the commander of an aircraft in flight, wherever that aircraft may be, has reasonable grounds to believe in respect of any person on board the aircraft— (a)

that the person in question has done or is about to do any act on the aircraft while it is in flight which jeopardises or may jeopardise— (i) the safety of the aircraft or of persons or property on board the aircraft; or (ii) good order and discipline on board the aircraft; or

(b)

that the person in question has done on the aircraft while in flight any act which in the opinion of the commander is a serious offence under any law in force in the country in which the aircraft is registered, not being a law of a political nature or based on racial or religious discrimination,

then, subject to subsection (4) of this section, the commander may take with respect to that person such reasonable measures, including restraint of his person, as may be necessary— (i) to protect the safety of the aircraft or of persons or property on board the aircraft; or (ii) to maintain good order and discipline on board the aircraft; or (iii) to enable the commander to disembark or deliver that person in accordance with subsection (5) of this section; and for the purposes of paragraph (b) of this subsection any British-controlled aircraft shall be deemed to be registered in the United Kingdom whether or not it is in fact registered in some other country. (3) Any member of the crew of an aircraft and any other person on board the aircraft may, at the request or with the authority of the commander of the aircraft, and any such member shall if so required by that commander, render assistance in restraining any person whom the commander is entitled under subsection (2) of this section to restrain; and at any time when the aircraft is in flight any such member or other person may, without obtaining the authority of the commander, take with respect to any person on board the aircraft any measures such as are mentioned in the said subsection (2) which he has reasonable grounds to believe are immediately necessary to protect the safety of the aircraft or of persons or property on board the aircraft.

187

Section VI — Legislation (4) Any restraint imposed on any person on board an aircraft under the powers conferred by the foregoing provisions of this section shall not be continued after the time when the aircraft first thereafter ceases to be in flight unless before or as soon as is reasonably practicable after that time the commander of the aircraft causes notification of the fact that a person on board the aircraft is under restraint and of the reasons therefor to be sent to an appropriate authority of the country in which the aircraft so ceases to be in flight, but subject to such notification may be continued after that time— for any period (including the period of any further flight) between that time and the first occasion thereafter on which the commander is able with any requisite consent of the appropriate authorities to disembark or deliver the person under restraint in accordance with subsection (5) of this section; or (h) if the person under restraint agrees to continue his journey under restraint on board that aircraft.

(a)

(5) The commander of an aircraft— (a) if in the case of any person on board the aircraft he has reasonable grounds— (i) to believe as mentioned in subsection (2)(a) of this section; and (ii) to believe that it is necessary so to do in order to protect the safety of the aircraft or of persons or property on board the aircraft or to maintain good order and discipline on board the aircraft, may disembark that person in any country in which that aircraft may be; and (b) if in the case of any person on board the aircraft he has reasonable grounds to believe as mentioned in subsection (2)(b) of this section, may deliver that person— (i) in the United Kingdom, to a constable or immigration officer; or (ii) in any other country which is a Convention country, to an officer having functions corresponding to the functions in the United Kingdom either of a constable or of an immigration officer. (6) The commander of an aircraft— (a) if he disembarks any person in pursuance of subsection (5)(a) of this section, in the case of a British-controlled aircraft, in any country or, in the the case of any other aircraft, in the United Kingdom, shall report the fact of, and the reasons for, that disembarkation to — (i) an appropriate authority in the country of disembarkation; and

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(ii) the appropriate diplomatic or consular office of the country of nationality of that person; (b) if he intends to deliver any person in accordance with subsection (5)(b) of this section in the United Kingdom or, in the case of a British-controlled aircraft, in any other country which is a Convention country, shall before or as soon as reasonably practicable after landing give notification of his intention and of the reasons therefor— (i) where the country in question is the United Kingdom, to a constable or immigration officer or, in the case of any other country, to an officer having functions corresponding to the functions in the United Kingdom either of a constable or of an immigration officer; (ii) in either case to the appropriate diplomatic or consular office of the country of nationality of that person; and any commander of an aircraft who without reasonable cause fails to comply with the requirements of this subsection shall be liable on summary conviction to a fine not exceeding one hundred pounds. 4. For the avoidance of doubt, it is hereby declared that for the Piracy. purposes of any proceedings before a court in the United Kingdom in respect of piracy, the provisions set out in the Schedule to this Act of the Convention on the High Seas signed at Geneva on 29th April 1958 shall be treated as constituting part of the law of nations; and any such court having jurisdiction in respect of piracy committed on the high seas shall have jurisdiction in respect of piracy committed by or against an aircraft wherever that piracy is committed. 5. (1) Where in any proceedings before a court in the United Kingdom for an offence committed on board an aircraft the testimony of any person is required and the court is satisfied that the person in question cannot be found in the United Kingdom, there shall be admissible in evidence before that court any deposition relating to the subject matter of those proceedings previously made on oath by that person outside the United Kingdom which was so made—

Provisions as to evidence in connection with aircraft.

(a) in the presence of the person charged with the offence; and (b) before a judge or magistrate of a country such as is mentioned in section 1(3) of the British Nationality 1948 c. 56. Act 1948 as for the time being in force, or which is part of Her Majesty's dominions, or in which Her Majesty for the time being has jurisdiction, or before a consular officer of Her Majesty's Government in the United Kingdom. (2) Any such deposition shall be authenticated by the signature of the judge, magistrate or consular officer before whom it was

189

Section VI — Legislation made who shall certify that the person charged with the offence was present at the taking of the deposition. (3) It shall not be necessary in any proceedings to prove the signature or official character of the person appearing so to have authenticated any such deposition or to have given such a certificate, and such a certificate shall, unless the contrary is proved, be sufficient evidence in any proceedings that the person charged with the offence was present at the making of the deposition. (4) If a complaint is made to such a consular officer as aforesaid that any offence has been committed on a British-controlled aircraft while in flight elsewhere than in or over the United Kingdom, that officer may inquire into the case upon oath. (5) In this section— (a) the expression "deposition" includes any affidavit, affirmation or statement made upon oath; and (b) the expression "oath" includes an affirmation or declaration in the case of persons allowed by law to affirm or declare instead of swearing; and nothing in this section shall prejudice the admission as evidence of any deposition which is admissible in evidence apart from this section. Provisions as to documentary evidence.

1949 c. 67. 1960 c. 38.

1962 c. s.

6. (1) In any legal proceedings— (a) a document purporting to be certified by such authority or person as may be designated for the purpose by regulations made by the Board of Trade as being, or being a true copy of, or of part of, a document issued or record kept in pursuance of— (i) an Order in Council made under section 8 of the Civil Aviation Act 1949; or (ii) the Civil Aviation (Licensing) Act 1960 or this Act, by, or by the Minister in charge of, a government department, by an official of a government department who is specified for the purpose in any such Order in Council, or by the Air Registration Board or the Air Transport Licensing Board; or (b) a document printed by Her Majesty's Stationary Office and purporting to be the publication known as the "United Kingdom Air Pilot" or a publication of the series known as "Notam—United Kingdom", shall be evidence, and in Scotland sufficient evidence, of the matters appearing from that document. (2) Section 5 of the Civil Aviation (Eurocontrol) Act 1962 (which relates to the use as evidence of certain records of the position of an aircraft or of any message or signal transmitted to or received from an aircraft) shall apply to any legal proceedings; and the authorities or persons to be designated for the purposes of subsection (1) of that section shall, instead of being designated as mentioned in subsection (2) of that section, be designated in all

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cases by regulations made under this subsection by the Board of Trade; and— (a) the said subsection (2) is hereby repealed; but (b) any provision made by regulations or Order in Council by virtue of that subsection and in force immediately before the commencement of this subsection shall continue in force as if contained in regulations made by the Board of Trade under this subsection until varied or revoked by regulations so made. (3) Any regulations made under this section shall be made by statutory instrument and be subject to annulment in pursuance of a resolution of either House of Parliament. 7. (1) In this Act, except where the context otherwise requires, the following expressions have the following meanings respectively, that is to say— "aircraft" means any aircraft, whether or not a British-controlled aircraft, other than— (a) a military aircraft; or (b) an aircraft which, not being a military aircraft, belongs to or is exclusively employed in the service of Her Majesty in right of the United Kingdom; but Her Majesty may by Order in Council, which may be varied or revoked by a subsequent Order in Council, provide that any of the provisions of this Act shall apply with or without modifications to aircraft such as are mentioned in paragraph (b) of this definition; "British-controlled aircraft" means an aircraft— (a) which is for the time being registered in the United Kingdom; or (b) which is not for the time being registered in any country but in the case of which either the operator of the aircraft or each person entitled as owner to any legal or beneficial interest in it satisfies the following requirements, namely— (i) that he is a person qualified to be the owner of a legal or beneficial interest in an aircraft registered in the United Kingdom; and (ii) that he resides or has his principal place of business in the United Kingdom; or (c) which, being for the time being registered in some other country, is for the time being chartered by demise to a person who, or to persons each of whom, satisfies the requirements aforesaid;

"commander" in relation to an aircraft means the member of the crew designated as commander of that aircraft by the operator thereof, or, failing such a person, the person who is for the time being the pilot in command of the aircraft; 191

Section VI — Legislation "Convention country" means a country in which the Tokyo Convention is for the time being in force; and Her Majesty may by Order in Council certify that any country specified in the Order is for the time being a Convention country, and any such Order in Council for the time being in force shall be conclusive evidence that the country in question is for the time being a Convention country but may be varied or revoked by a subsequent Order in Council; "military aircraft" means— (a) an aircraft of the naval, military or air forces of

any country; or

1949 c. 67.

(b) any other aircraft in respect of which there is in force a certificate issued in accordance with any Order in Council in force under the Civil Aviation Act 1949 that the aircraft is to be treated for the purposes of that Order in Council as a military aircraft; and a certificate of the Secretary of State that any aircraft is or is not a military aircraft for the purposes of this Act shall be conclusive evidence of the fact certified; "operator" in relation to any aircraft at any time means the person who at that time has the management of that aircraft; "pilot in command" in relation to an aircraft means a person who for the time being is in charge of the piloting of the aircraft without being under the direction of any other pilot in the aircraft; "Tokyo Convention" means the Convention on Offences and certain other Acts Committed on board Aircraft signed at Tokyo on 14th September 1963. (2) For the purposes of this Act, the period during which an aircraft is in flight shall be deemed to include— (a) any period from the moment when power is applied for the purpose of the aircraft taking off on a flight until the moment when the landing run (if any) at the termination of that flight ends; and (b) for the purposes of section 3 of this Act— (i) any further period from the moment when all external doors, if any, of the aircraft are closed following embarkation for a flight until the moment when any such door is opened for disembarkation after that flight; and (ii) if the aircraft makes a forced landing, any period thereafter until the time when competent authorities of the country in which the forced landing takes place take over the responsibility for the aircraft and for the persons and property on board the aircraft

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(being, if the forced landing takes place in the United Kingdom, the time when a constable arrives at the place of landing); and any reference in this Act to an aircraft in flight shall include a reference to an aircraft during any period when it is on the surface of the sea or land but not within the territorial limits of any country. (3) In this Act, except where the context otherwise requires, any reference to a country or the territorial limits thereof shall be construed as including a reference to the territorial waters, if any, of that country, and references to a part of the United Kingdom shall be construed as including references to so much of the territorial waters of the United Kingdom as are adjacent to that part. (4) If the Board of Trade are satisfied that the requirements of Article 18 of the Tokyo Convention have been satisfied (which Article makes provision as to the country which is to be treated as the country of registration of certain aircraft operated by joint air transport organisations or international operating agencies established by two or more Convention countries) the Board may by order provide that for the purposes of this Act such aircraft as may be specified in the order shall be treated as registered in such Convention country as may be so specified; and any such order shall be made by statutory instrument and may be varied or revoked by a subsequent order under this subsection. (5) For the purposes of section 7 of the Costs in Criminal 1952 c. 48. Cases Act 1952 (which makes provision with respect to England and Wales as to the costs payable out of county or county borough funds) any offence— (a) which is committed on board an aircraft while in flight, whether in or over or outside the United Kingdom; or (b) in respect of which jurisdiction is conferred by section 4 of this Act, shall be treated as having been committed within Admiralty jurisdiction; and subsections (2) and (3) of the said section 7 (which make provision with respect to offences committed within Admiralty jurisdiction including provision for the repayment out of moneys provided by Parliament of costs paid out of any such fund as aforesaid) shall apply accordingly. (6) The powers conferred on the Board of Trade by section 6 of this Act and subsection (4) of this section shall be exercisable by the President of the Board, any Minister of State with duties concerning the affairs of the Board, any secretary, under-secretary or assistant secretary of the Board, or any person authorised in that behalf by the President. 8. (1) Her Majesty may by Order in Council direct that such Channel Islands, of the provisions of this Act other than section 2 as may be Isle of Man. specified in the Order shall extend, with such exceptions, adapta-

193

Section VI — Legislation Lions and modifications as may be so specified, to any of the Channel Islands, to the Isle of Man or to any other territory outside the United Kingdom for the international relations of which Her Majesty's Government in the United Kingdom are responsible. (2) Any Order in Council made under this section may be varied or revoked by a subsequent Order in Council so made. Citation and 9. (1) This Act may be cited as the Tokyo Convention Act Commencement. 1967. (2) This Act, the Civil Aviation Acts 1949 and 1960, and the Civil Aviation (Eurocontrol) Act 1962 may be cited together 1962 c. 8. as the Civil Aviation Acts 1949 to 1967. (3) This Act shall come into force on such day as Her Majesty may by Order in Council appoint and different days may be appointed for different purposes.

Section

4.

SCHEDULE PROVISIONS OF GENEVA CONVENTION ON THE HIGH SEAS TO BE TREATED AS PART OF THE LAW OF NATIONS ARTICLE 15 Piracy consists of any of the following acts: (1) Any illegal acts of violence, detention or any of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (3) Any act of inciting or of intentionally facilitating an act described in sub-paragraph (1) or sub-paragraph (2) of this article. ARTICLE 16 The acts of piracy, as defined in article 15, committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a pirate ship. ARTICLE 17 A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in article 15. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.

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2.

Marine, &c., Broadcasting (Olences) Act 1967 Elizabeth II, 1967, Chapter 41

An Act to suppress broadcasting from ships, aircraft and certain marine structures. [14th July 1967] 1. (1) It shall not be lawful for a broadcast to be made from a ship or aircraft while it is in or over the United Kingdom or external waters, nor shall it be lawful for a broadcast to be made from a ship registered in the United Kingdom, the Isle of Man or any of the Channel Islands or an aircraft so registered while the ship or aircraft is elsewhere than in or over the United Kingdom or external waters.

Prohibition of broadcasting from ships and aircraft.

(2) If a broadcast is made from a ship in contravention of the foregoing subsection, the owner of the ship, the master of the ship and every person who operates, or participates in the operation of, the apparatus by means of which the broadcast is made shall be guilty of an offence; and if a broadcast is made from an aircraft in contravention of that subsection, the operator of the aircraft, the commander of the aircraft and every person who operates, or participates in the operation of, the apparatus by means of which the broadcast is made shall be guilty of an offence. (3) A person who procures the making of a broadcast in contravention of subsection (I) above shall be guilty of an offence. (4) In subsection (2) above— (a) "master", in relation to a ship, includes any other person (except a pilot) having command or charge of the ship; (b) "operator", in relation to an aircraft, means the person for the time being having the management of the aircraft. 2. (1) It shall not be lawful for a broadcast to be made from— Prohibition of fromm ar arine (a) a structure in external waters or in tidal waters in the fr marine ne United Kingdom, being a structure affixed to, or sup- structures. ported by, the bed of those waters and not being a ship; or (b) any other object in such waters, being neither a structure affixed or supported as aforesaid nor a ship or aircraft; and if a broadcast is made in contravention of the foregoing provision, every person who operates, or participates in the operation of, the apparatus by means of which the broadcast is made shall be guilty of an offence. (2) A person who procures the making of a broadcast in contravention of the foregoing subsection shall be guilty of an offence.

195

Section VI — Legislation Prohibition of acts connected with broadcasting from certain ships and aircraft, and from marine structures outside United Kingdom.

3. (I) If a broadcast is made— (a) from a ship other than one registered in the United Kingdom, the Isle of Man or any of the Channel Islands while the ship is on the high seas; or (b) from an aircraft other than one so registered while the aircraft is on or over the high seas; or (c) from a structure on the high seas, being a structure affixed to, or supported by, the bed of those seas and not being a ship; or (d) from any other object on those seas, being neither a structure affixed or supported as aforesaid nor a ship or aircraft; any of the persons mentioned in subsection (3) below who operates, or participates in the operation of, the apparatus by means of which the broadcast is made shall be guilty of an offence. (2) A person who procures a broadcast to be made as mentioned in the foregoing subsection shall be guilty of an offence. (3) The persons referred to in subsection (1) above are the following, namely:— (a) a citizen of the United Kingdom and colonies;

1948 c. 56_

(b) a British subject by virtue of section 2 of the British Nationality Act 1948 (continuance of certain citizens of the Republic of Ireland, therein referred to as Eire, as British subjects); (c) a British subject without citizenship by virtue of section 13 or section 16 of that Act (which relate respectively to British subjects whose citizenship has not been ascertained at the commencement of that Act and to persons who had ceased to be British on loss of British nationality by a parent);

1965 c. 34.

(d) a British subject by virtue of the British Nationality Act 1965; and

1948 c. 56.

(e) a British protected person (within the meaning of the British Nationality Act 1948).

Prohibition of acts facilitating broadcasting from ships, aircraft. & c.

4. (1) A person who does any of the acts mentioned in subsection (3) below, while satisfying the condition as to knowledge or belief mentioned in the case of that act, shall be guilty of an offence if— (a) he does the act in the United Kingdom or external waters or in a ship registered in the United Kingdom, the Isle of Man or any of the Channel Islands or an aircraft so registered while the ship or aircraft is elsewhere than in or over the United Kingdom or external waters; or (b) being a person mentioned in section 3(3) of this Act, he does the act on or over the high seas.

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(2) A person who, in the United Kingdom, procures another person to do, outside the United Kingdom, anything which, if it had been done in the United Kingdom by the last-mentioned person, would have constituted an offence under the foregoing subsection, shall be guilty of an offence. (3) The acts, and conditions as to knowledge or belief, referred to in subsection (1) above are the following, namely:— (a) furnishing or agreeing to furnish to another a ship or aircraft knowing, or having reasonable cause to believe, that broadcasts are to be made from it in contravention of section 1(1) of this Act or while it is on or over the high seas; (b) carrying or agreeing to carry in a ship or aircraft wireless telegraphy apparatus knowing, or having reasonable cause to believe, that by means thereof broadcasts are to be made from the ship or aircraft as aforesaid; (c) supplying to, or installing in, a ship or aircraft wireless telegraphy apparatus knowing, or having reasonable cause to believe, that by means thereof broadcasts are to be made from the ship or aircraft as aforesaid; (d) supplying any wireless telegraphy apparatus for installation on or in, or installing any such apparatus on or in, any structure or other object (not being, in either case, a ship or aircraft) knowing, or having reasonable cause to believe, that by means of that apparatus broadcasts are to be made from the object in contravention of section 2(1) of this Act or while the object is on the high seas; (e) repairing or maintaining any wireless telegraphy apparatus knowing, or having reasonable cause to believe, that, by means thereof, broadcasts are made, or are to be made, in contravention of section 3(1) or 2(1) of this Act or as mentioned in section 3(1) of this Act; (t) knowing, or having reasonable cause to believe, in the case of a ship or aircraft, that broadcasts are made, or are to be made, from it in contravention of section 1(1) of this Act or while it is on or over the high seas— (i) supplying any goods or materials for its operation or maintenance, for the operation or maintenance of wireless telegraphy apparatus installed therein or for the sustentation or comfort of the persons on board of it; (ii) carrying by water or air goods or persons to or from it; (iii) engaging a person as an officer or one of the crew of it;

197

Section VI — Legislation (g)

Prohibition of acts relating to matter broadcast from ships, aircraft, & c.

knowing, or having reasonable cause to believe, in the case of a structure or other object (not being, in either case, a ship or aircraft), that broadcasts are made, or are to be made, from it in contravention of section 2(1) of this Act or while it is on the high seas— (i) supplying any goods or materials for its maintenance, for the operation or maintenance of wireless telegraphy apparatus installed therein or thereon or for the sustension or comfort of the persons therein or thereon; (ii) carrying by water or air goods or persons thereto or therefrom; (iii) engaging a person to render services therein or thereon.

S. (1) A person who does any of the acts mentioned in subsection (3) below, and, if any intent or circumstances is or are specified in relation to the act, does it with that intent or in those circumstances, shall be guilty of an offence if— (a) he does the act in the United Kingdom or external waters or in a ship registered in the United Kingdom, the Isle of Man or any of the Channel Islands or an aircraft so registered while the ship or aircraft is elsewhere than in or over the United Kingdom or external waters; or (b) being a person mentioned in section 3(3) of this Act, he does the act on or over the high seas. (2) A person who, in the United Kingdom, procures another person to do, outside the United Kingdom, anything which, if it had been done in the United Kingdom by the last-mentioned person, would have constituted an offence under the foregoing subsection, shall be guilty of an offence. (3) The acts, and, where relevant, the intent and circumstances, referred to in subsection (1) above are the following namely:— (a) supplying a cinematograph film or a record with intent that a broadcast of the film or, as the case may be, the recording embodied in the record may be made in contravention of section 1(1) or 2(1) of this Act or as mentioned in section 3(1) thereof; (b) making a literary, dramatic or musical work with intent that a broadcast of the work may be made as aforesaid; (c) making an artistic work with intent that the work may be included in a television broadcast made as aforesaid; (d) participating in a broadcast made as aforesaid, being actually present as an announcer, as a performer or one of the performers concerned in an entertainment given, or as the deliverer of a speech;

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UNITED KINGDOM te) advertising by means of a broadcast made as aforesaid or inviting another to advertise by means of a broadcast to be so made; (f) publishing the times or other details of any broadcasts which are to be so made, or (otherwise than by publishing such details) publishing an advertisement of matter calculated to promote, directly or indirectly, the interests of a business whose activities consist in or include the operation of a station from which broadcasts are or are to be so made. (4) For the purposes of this section if, by means of a broadcast made in contravention of section 1(1) or 2(1) of this Act or as mentioned in section 3(1) thereof, it is stated, suggested or implied that any entertainment of which a broadcast is so made has been supplied by, or given at the expense of, a person, he shall, unless he proves that it was not so supplied or given, be deemed thereby to have advertised. (5) For the purposes of this section advertising by means of a broadcast shall be deemed to take place as well wherever the broadcast is received as where it is made. (6) In this section "speech" includes lecture, address and sermon, and references in this section to a cinematograph film, a record and a literary, dramatic, musical or artistic work shall be construed in like manner as references thereto in the Copyright Act 1956. 1956 c. 74. 6_ (1) A person guilty of an offence under this Act shall be Penalties and legal liable— proceedings. on summary conviction, to imprisonment for a term (a) not exceeding three months or to a fine not exceeding £400, or to both; (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both. (2) Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against accordingly. (3) Proceedings for an offence under this Act may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom. (4) Notwithstanding anything in any enactment relating to courts of summary jurisdiction, summary proceedings for an offence under this Act may be instituted at any time within two years from the time when the offence was committed. (5) Proceedings for an offence under this Act shall not, in England or Wales, be instituted otherwise than by or on behalf of

199

Section VI — Legislation the Director of Public Prosecutions and shall not, in Northern Ireland, be instituted otherwise than by or on behalf of the Attorney General for Northern Ireland; but this shall not prevent the issue or execution of a warrant for the arrest of any person in respect of such an offence or the remanding in custody or on bail of any person charged with such an offence. (6) A member of a police force shall, for the purpose of the enforcement of this Act, have in external waters all the powers, protection and privileges which he has in the area for which he acts as constable. (7) In this section "director" in relation to a body corporate established by or under an enactment for the purpose of carrying on under national ownership an industry or part of an industry or undertaking, being a body corporate whose affairs are managed by the members thereof, means a member of that body corporate. (8) In the application of this section to Northern Ireland, the following subsection shall be substituted for subsection (6):"(6) A member of the Royal Ulster Constabulary shall, for the purpose of the enforcement of this Act, have in external waters all the powers, protection and privileges which he has in Northern Ireland". Special defence available In proceedings for carrying goods or persons in contravention of section 4.

7. (1) In any proceedings against a person for an offence under section 4 of this Act consisting in the carriage of goods or persons to or from a ship or aircraft it shall be a defence for him to prove— (a) that the ship or aircraft was, or was believed to be, wrecked, stranded or in distress, and that the goods or persons carried were carried for the purpose of preserving the ship or aircraft, or its cargo or apparel, or saving the lives of persons on board of it; or (b) that a person on board of the ship or aircraft was, or was believed to be, suffering from hurt, injury or illness, and that the goods or persons were carried for the purpose of securing that the necessary surgical or medical advice and attendance were rendered to him. (2) In any proceedings against a person for an offence under section 4 of this Act consisting in the carriage of goods or persons to or from an object other than a ship or aircraft it shall be a defence for him to prove— (a) that the object was, or was believed to be, unsafe, and that the goods or persons carried were carried for the purpose of saving the lives of persons therein or thereon; or (b) that a person therein or thereon was, or was believed to be, suffering from hurt, injury or illness, and that the goods or persons were carried for the purpose of securing that the necessary surgical or medical advice and attendance were rendered to him.

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(3) In any proceedings against a person for an offence under section 4 of this Act consisting in the carriage of a person to or from a ship or aircraft or to or from an object other than a ship or aircraft, it shall be a defence for him to prove that the person carried was visiting the ship, aircraft or object, as the case may be, for the purpose of exercising or performing any power or duty conferred or imposed on him by law. (4) The references in subsections (1)(a) and (2)(a) above to persons' having been carried for the purpose of saving lives shall not be construed so as to exclude the persons whose lives it was the purpose to save and the references in subsections (1)(b) and (2) (b) above to persons' having been carried as therein mentioned shall not be construed so as to exclude the person who was, or was believed to be, suffering as so mentioned. 8. Nothing in this Act shall render it unlawful to do anything Saving for things under and in accordance with a wireless telegraphy licence, or to done under wireless telegraphy licence_ procure anything to be so done. 9. (1) In this Act— Interpretation. "broadcast" means a broadcast by wireless telegraphy of sounds or visual images intended for general reception (whether the sounds or images are actually received by any person or not), but does not include a broadcast consisting in a message or signal sent in connection with navigation or for the purpose of securing safety; "external waters" means the whole of the sea adjacent to the United Kingdom which is within the seaward limits of the territorial waters adjacent thereto; "the high seas" means the seas outside the seaward limits of the territorial waters adjacent to the United Kingdom or to any country or territory outside the United Kingdom; "ship" includes every description of vessel used in navigation; "wireless telegraphy", "wireless telegraphy apparatus" and "wireless telegraphy licence" have the same meanings respectively as in the Wireless Telegraphy Act 1949. 1949 c. 54. (2) For the purposes of this section, the seaward limits of the territorial waters adjacent to the United Kingdom shall be determined by reference to the baseline established by the Territorial Waters Order in Council 1964 or by any subsequent Order of Her Majesty made in Council under Her royal prerogative for establishing the baseline from which the breadth of the territorial sea adjacent to the United Kingdom, the Channel Islands and the Isle of Man is measured. 10. (1) Her Majesty may by Order in Council direct that this Act shall extend to the Isle of Man or any of the Channel Islands, with such exceptions, adaptations and modifications as may be specified in the Order. (2) An Order in Council under this section may be varied or revoked by a subsequent Order of Her Majesty in Council.

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Power to extend Act to Isle of Man and Channel Islands.

Section VI — Legislation Short title and 11. (1) This Act may be cited as the Marine, &c., Broadcasting commencement. (Offences) Act 1967.

(2) This Act shall not come into operation before the expiry of one month beginning with the day on which it is passed, but subject thereto it shall come into operation on a day to be appointed by Her Majesty in Council.

3. The Carriage by Air Acts (Application of Provisions) Order 1967 Statutory Instruments 1967, No. 480. Attached to this Act are two Schedules, namely: a) Schedule 1: Non-International Carriage, and Carriage of Mail and Postal Packages, and b) Schedule 2: International Carriage under the Unamended Warsaw Convention. Part III of Schedule I contains "for convenience of reference, the amended Warsaw Convention and the Guadalajara Convention, with the exceptions, adaptations and modifications made by this Schedule." Part B of Schedule II reproduces for the same reasons the amended Warsaw Convention and the Guadalajara Convention as applied by Schedule II. Part III of schedule I is reproduced hereunder. PART III

For convenience of reference the amended Convention and the Guadalajara Convention, with the exceptions, adaptations and modifications made by this Schedule, are here set out:— A.

The amended Warsaw Convention, as applied by Schedule I (NON-INTERNATIONAL CARRIAGE, AND CARRIAGE OF MAIL AND POSTAL PACKAGES)

CHAPTER I SCOPE—DEFINITIONS Article 1 This Schedule applies to all carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. Article 2 This Schedule applies to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in Article 1.

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Article 17 The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Article 18 (1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air. (2) The carriage by air within the meaning of the preceding paragraph comprises the period during which the baggage or cargo is in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever. (3) The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. Article 19 The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Article 20 The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures. Article 21 If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the Court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability. Article 22 (1) In the carriage of persons the liability of the carrier for each passenger is limited to the sum of eight hundred and seventy-five thousand francs. Where, in accordance with the law of the Court seised of the case, damages may be awarded in the form of periodical payments the equivalent capital value of the said payments shall not exceed eight hundred and seventy-five thousand francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability. (2) (a) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that the sum is greater than the passenger's or consignor's actual interest in delivery at destination.

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Section VI — Legislation (b) In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier's liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability. (3) As regards objects of which the passenger takes charge himself the liability of the carrier is limited to five thousand francs per passenger. (4) The limits prescribed in this Article shall not prevent the Court from awarding, in accordance with its own law, in addition, the whole or part of the Court costs and of the other expenses of the litigation incurred by the plaintiff. The foregoing provision shall not apply if the amount of the damages awarded, excluding Court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later. (5) The sums mentioned in francs in this Article shall be deemed to refer to a currency unit consisting of sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. These sums may be converted into national currencies in round figures. Conversion of the sums into national currencies other than gold shall, in case of judicial proceedings, be made according to the gold value of such currencies at the date of judgment. Article 23 (1) Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Schedule shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Schedule. (2) Paragraph (1) of this Article shall not apply to provisions governing loss or damage resulting from the inherent defect, quality or vice of the cargo carried. Article 24 (1) In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Schedule. (2) In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights. Article 25 The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment. Article 25A (1) If an action is brought against a servant or agent of the carrier arising out of damage to which this Schedule relates, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself 204

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of the limits of liability which that carrier himself is entitled to invoke under Article 22. (2) The aggregate of the amounts recoverable from the carrier, his servants and agents, in that case, shall not exceed the said limits. (3) The provisions of paragraphs (1) and (2) of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result. Article 26 (1) Receipt by the person entitled to delivery of baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition. (2) In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his disposal. (3) Every complaint must be made in writing despatched within the times aforesaid. (4) Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part. Article 27 In the case of the death of the person liable, an action for damages lies in accordance with the terms of this Schedule against those legally representing his estate. Article 29* (1) The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. (2) The method of calculating the period of limitation shall be determined by the law of the Court seised of the case. Article 30 (1) In the case of carriage to be performed by various successive carriers each carrier who accepts passengers, baggage or cargo is subjected to the rules set out in this Schedule, and is deemed to be one of the contracting parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under his supervision. (2) In the case of carriage of this nature, the passenger or his representative can take action only against the carrier who performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey. (3) As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each * There is no Article 28 (Ed.).

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Section VI — Legislation may take action against the carrier who performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee. CHAPTER IV PROVISIONS RELATING TO COMBINED CARRIAGE

Article 31 (1) In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Schedule apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1. (2) Nothing in this Schedule shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this Schedule are observed as regards the carriage by air. CHAPTER V GENERAL AND FINAL PROVISIONS

Article 32 Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Schedule, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless for the carriage of cargo arbitration clauses are allowed, subject to this Schedule. Article 33 Nothing contained in this Schedule shall prevent the carrier either from refusing to enter into any contract of carriage, or from making regulations which do not conflict with the provisions of this Schedule. Article 35 The expression "days" when used in this Schedule means current days not working days. B. The Guadalajara Convention as applied by Schedule 1 (NON-INTERNATIONAL CARRIAGE, AND CARRIAGE OF MAIL AND POSTAL PACKAGES)

Article I In the Guadalajara Convention as applied by this Schedule: (a) "the Warsaw Convention" means the amended Convention as applied by this Schedule; (b) "contracting carrier" means a person who as a principal makes an agreement for carriage governed by the Warsaw Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor; (c) "actual carrier" means a person, other than the contracting carrier, who, by virtue of authority from the contracting carrier, performs the whole or

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part of the carriage contemplated in paragraph (b) but who is not with respect to such part a successive carrier within the meanings of the Warsaw Convention. Such authority is presumed in the absence of proof to the contrary. Article II If an actual carrier performs the whole or part of carriage which is governed by the Warsaw Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in the Warsaw Convention, be subject to the rules of the Warsaw Convention, the former for the whole of the carriage contemplated in the agreement, the latter solely for the carriage which he performs. Article III 1. The acts and omissions of the actual carrier and of his servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the contracting carrier. 2. The acts and omissions of the contracting carrier and of his servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the actual carrier. Nevertheless, no such act or omission shall subject the actual carrier to liability exceeding the limits specified in Article 22 of the Warsaw Convention. Any special agreement under which the contracting carrier assumes obligations not imposed by the Warsaw Convention or any waiver of rights conferred thereby or any special declaration of interest in delivery at destination contemplated in Article 22 thereof, shall not affect the actual carrier unless agreed to by him. Article IV Any complaint to be made under the Warsaw Convention to the carrier shall have the same effect whether addressed to the contracting carrier or to the actual carrier. Article V In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of the contracting carrier shall, if he proves that he acted within the scope of his employment, be entitled to avail himself of the limits of liability which are applicable under the Guadalajara Convention as applied by this Schedule to the carrier whose servant or agent he is unless it is proved that he acted in a manner which, under the Warsaw Convention, prevents the limits of liability from being invoked. Article VI In relation to the carriage performed by the actual carrier, the aggregate of the amounts recoverable from that carrier and the contracting carrier, and from their servants and agents acting within the scope of their employment, shall not exceed the highest amount which could be awarded against either the contracting carrier or the actual carrier under the Guadalajara Convention as applied by this Schedule, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to him. Article VII In relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately.

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Section VI — Legislation Article IX 1. Any contractual provision tending to relieve the contracting carrier or the actual carrier of liability under the Guadalajara Convention as applied by this Schedule or to fix a lower limit than that which is applicable according to the Guadalajara Convention as applied by this Schedule shall be null and void, but the nullity of any such provision does not involve the nullity of the whole agreement, which shall remain subject to the provisions of the Guadalajara Convention as applied by this Schedule. 2. In respect of the carriage performed by the actual carrier, the preceding paragraph shall not apply to contractual provisions governing loss or damage resulting from the inherent defect, quality or vice of the cargo carried. 3. Any clause contained in an agreement for carriage and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by the Guadalajara Convention as applied by this Schedule, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless, for the carriage of cargo arbitration clauses are allowed subject to the Guadalajara Convention as applied by this Schedule. Article X Except as provided in Article VII, nothing in the Guadalajara Convention as applied by this Schedule shall affect the rights and obligations of the two carriers between themselves. Article XI Nothing herein shall impose any liability on the Postmaster General.

A. The amended Warsaw Convention, as applied by Schedule 2 (INTERNATIONAL CARRIAGE UNDER THE UNAMENDED WARSAW CONVENTION)

CHAPTER I SCOPE-DEFINITIONS

Article 1 (1) This Schedule applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. (2) "International carriage" means any carriage in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties to the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on behalf of His Majesty on 12th October 1929, or within the territory of a single such State, if there is an agreed stopping place within the territory subject to the sovereignty, suzerainty, mandate or authority of another State, even though that State is not a party to the said Convention of 1929. (3) A carriage to be performed by several successive air carriers is deemed, for the purposes of this Schedule, to be one undivided carriage, if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of con-

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tracts is to be performed entirely within a territory subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party. Article 2 (1) This Schedule applies to carriage performed by the State, not being a State which has availed itself on the Additional Protocol to the Warsaw Convention, or by legally constituted public bodies, provided it falls within the conditions laid down in Article 1. (2) This Schedule does not apply to carriage performed under the terms of any international postal Convention.

CHAPTER II DOCUMENTS OF CARRIAGE SECTION 1.-PASSENGER TICKET

Article 3 (1) For the carriage of passengers the carrier must deliver a passenger ticket which shall contain the following particulars:— (a) the place and date of issue; (b) the place of departure and of destination; (c) the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right, the alteration shall not have the effect of depriving the carriage of its international character; (d) the name and address of the carrier or carriers; (c) a statement that the carriage is subject to the rules relating to liability established by the Warsaw Convention. (2) The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage, which shall none the less be subject to the rules of this Schedule. Nevertheless, if the carrier accepts a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this Schedule which exclude or limit his liability. SECTION 2.-BAGGAGE CHECK

Article 4 (I) For the carriage of baggage, other than small personal objects of which the passenger takes charge himself, the carrier must deliver a baggage check. (2) The baggage check shall be made out in duplicate, one part for the passenger and the other part for the carrier. (3) The baggage check shall contain the following particulars:— (a) (b) (c) (d) (e)

the place and date of issue; the place of departure and of destination; the name and address of the carrier or carriers; the number of the passenger ticket; a statement that delivery of the baggage will be made to the bearer of the baggage check;

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Section VI — Legislation (f) the number and weight of the packages; (g) the amount of the value declared in accordance with Article 22(2); (h) a statement that the carriage is subject to the rules relating to liability established by the Warsaw Convention. (4) The absence, irregularity or loss of the baggage check does not affect the existence or the validity of the contract of carriage, which shall none the less be subject to the rules of this Schedule. Nevertheless, if the carrier accepts baggage without a baggage check having been delivered, or if the baggage check does not contain the particulars set out at (d), and (ii) above, the carrier shall not be entitled to avail himself of those provisions of this Schedule which exclude or limit his ability. SECTION

3.—AIR

WAYBILL

Article 5 (I) Every carrier of cargo has the right to require the consignor to make out and hand over to him a document called an "air waybill"; every consignor has the right to require the carrier to accept this document. (2) The absence, irregularity or loss of this document does not affect the existence or the validity of the contract of carriage which shall, subject to the provisions of Article 9, be none the less governed by the rules of this Schedule. Article 6 (1) The air waybill shall be made out by the consignor in three original parts and be handed over with the cargo. (2) The first part shall be marked "for the carrier", and shall be signed by the consignor. The second part shall be marked "for the consignee"; it shall be signed by the consignor and by the carrier and shall accompany the cargo. The third part shall be signed by the carrier and handed by him to the consignor after the cargo has been accepted. (3) The carrier shall sign on acceptance of the cargo. (4) The signature of the carrier may be stamped; that of the consignor may be printed or stamped. (5) If, at the request of the consignor, the carrier makes out the air waybill, he shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor. Article 7 The carrier of cargo has the right to require the consignor to make out separate waybills when there is more than one package. Article 8 The air waybill shall contain the following particulars:— (a) the place and date of its execution; (b) the place of departure and of destination; (c) the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right the alteration shall not have the effect of depriving the carriage of its international character; (d) the name and address of the consignor;

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the name and address of the first carrier; the name and address of the consignee, if the case so requires; the nature of the cargo; the number of the packages, the method of packing and the particular marks or numbers upon them; the weight, the quantity and the volume or dimensions of the cargo; the apparent condition of the cargo and of the packing; the freight, if it has been agreed upon, the date and place of payment, and the person who is to pay it; if the cargo is sent for payment on delivery, the price of the cargo, and, if the case so requires, the amount of the expenses incurred; the amount of the value declared in accordance with Article 22(2); the number of parts of the air waybill; the documents handed to the carrier to accompany the air waybill; the time fixed for the completion of the carriage and a brief note of the route to be followed, if these matters have been argreed upon; a statement that the carriage is subject to the rules relating to liability established by the Warsaw Convention.

Article 9 If the carrier accepts cargo without an air waybill having been made out, or if the air waybill does not contain all the particulars set out in Article 8(a) to (i) inclusive and (q), the carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability. Article 10 (1) The consignor is responsible for the correctness of the particulars and statements relating to the cargo which he inserts in the air waybill. (2) The consignor will be liable for all damage suffered by the carrier or any other person by reason of the irregularity, incorrectness or incompleteness of the said particulars and statements. Article 11 (1) The air waybill is prima facie evidence of the conclusion of the contract, of the receipt of the cargo and of the conditions of carriage. (2) The statements in the air waybill relating to the weight, dimensions and packing of the cargo, as well as those relating to the number of packages, are prima facie evidence of the facts stated; those relating to the quantity, volume and condition of the cargo do not constitute evidence against the carrier except so far as they both have been, and are stated in the air waybill to have been, checked by him in the presence of the consignor, or relate to the apparent condition of the cargo. Article 12 (1) Subject to his liability to carry out all his obligations under the contract of carriage, the consignor has the right to dispose of the cargo by withdrawing it at the aerodrome of departure or destination, or by stopping it in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee named in the air waybill, or by requiring it to be returned to the aerodrome of 211

Section VI — Legislation departure. He must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and he must repay any expenses occasioned by the exercise of this right. (2) If it is impossible to carry out the orders of the consignor the carrier must so inform him forthwith. (3) If the carrier obeys the orders of the consignor for the disposition of the cargo without requiring the production of the part of the air waybill delivered to the latter, he will be liable, without prejudice to his right of recovery from the consignor, for any damage which may be caused thereby to any person who is lawfully in possession of that part of the air waybill. (4) The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Article 13. Nevertheless, if the consignee declines to accept the waybill or the cargo, or if he cannot be communicated with, the consignor resumes his right of disposition. Article 13 (1) Except in the circumstances set out in the preceding Article, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to hand over to him the air waybill and to deliver the cargo to him, on payment of the charges due and on complying with the conditions of carriage set out in the air waybill. (2) Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives. (3) If the carrier admits the loss of the cargo, or if the cargo has not arrived at the expiration of seven days after the date on which it ought to have arrived, the consignee is entitled to put into force against the carrier the rights which flow from the contract of carriage. Article 14 The consignor and the consignee can respectively enforce all the rights given them by Articles 12 and 13, each in his own name, whether he is acting in his own interest or in the interest of another, provided that he carries out the obligations imposed by the contract. Article 15 (1) Articles 12, 13 and 14 do not affect either the relations of the consignor or the consignee with each other or the mutual relations of third parties whose rights are derived either from the consignor or from the consignee. (2) The provisions of Articles 12, 13 and 14 can only be varied by express provision in the air waybill. (3) Nothing in this Schedule prevents the issue of a negotiable air waybill. Article 16 (1) The consignor must furnish such information and attach to the air waybill such documents as are necessary to meet the formalities of customs, octroi or police before the cargo can be delivered to the consignee. The consignor is liable to the carrier for any damage occasioned by the the absence, insufficiency or irregularity of any such information or documents, unless the damage is due to the fault of the carrier or his servants or agents. (2) The carrier is under no obligation to enquire into the correctness or sufficiency of such information or documents. 212

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CHAPTER III LIABILITY OF THE CARRIER

Article 17 The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Article 18 (1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air. (2) The carriage by air within the meaning of the preceding paragraph comprises the period during which the baggage or cargo is in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever. (3) The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. Article 19 The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Article 20 (1) The aircraft is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures. (2) In the carriage of cargo and baggage the carrier is not liable if he proves that the damage was occasioned by negligent pilotage or negligence in the handling of the aircraft or in navigation and that, in all other respects, he and his servants or agents have taken all necessary measures to avoid the damage. Article 21 If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the Court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability. Article 22 (1) In the carriage of passengers the liability of the carrier for each passenger is limited to the sum of 125,000 francs. Where, in accordance with the law of the Court seised of the case, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 125,000 francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability. (2) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 250 francs per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the

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Section VI — Legislation case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that the sum is greater than the actual value to the consignor at delivery. (3) As regards objects of which the passenger takes charge himself the liability of the carrier is limited to 5,000 francs per passenger. (4) The sums mentioned above shall be deemed to refer to the French franc consisting of 65' milligrammes gold of millesimal fineness 900. These sums may be converted into any national currency in round figures. Article 23 Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Schedule shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Schedule. Article 24 (1) In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Schedule. (2) In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights. Article 25 (1) The carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as, in accordance with the law of the Court seised of the case, is considered to be equivalent to wilful misconduct. (2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any servant or agent of the carrier acting within the scope of his employment. Article 25A (1) If an action is brought against a servant or agent of the carrier arising out of damage to which this Schedule relates, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the limits of liability which that carrier himself is entitled to involve under Article 22. (2) The aggregate of the amounts recoverable from the carrier, his servants and agents, in that case, shall not exceed the said limits. (3) The provisions of paragraphs (1) and (2) of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result. Article 26 (I) Receipt by the person entitled to delivery of baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage. (2) In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within

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three days from the date of receipt in the case of baggage and seven days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within fourteen days from the date on which the baggage or cargo has been placed at his disposal. (3) Every complaint must be made in writing upon the document of carriage or by separate notice in writing despatched within the times aforesaid. (4) Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part. Article 27 In the case of the death of the person liable, an action for damages lies in accordance with the terms of this Schedule against those legally representing his estate. Article 28 (1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties to the Warsaw Convention, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination. (2) Questions of procedure shall be governed by the law of the Court seised of the case. Article 29 (I) The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. (2) The method of calculating the period of limitation shall be determined by the law of the Court seised of the case. Article 30 (I) In the case of carriage to be performed by various successive carriers and falling within the definition set out in the third paragraph of Article 1, each carrier who accepts passengers, baggage or cargo is subjected to the rules set out in this Schedule, and is deemed to be one of the contracting parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under his supervision. (2) In the case of carriage of this nature, the passenger or his representative can take action only against the carrier who performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey. (3) As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier who performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.

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Section VI — Legislation CHAPTER IV PROVISIONS RELATING TO COMBINED CARRIAGE

Article 31 (1) In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Schedule apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1. (2) Nothing in this Schedule shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this Schedule are observed as regards the carriage by air.

CHAPTER V GENERAL AND FINAL PROVISIONS

Article 32 Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Schedule, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless, for the carriage of cargo arbitration clauses are allowed, subject to this Schedule, if the arbitration is to take place within one of the jurisdictions referred to in the first paragraph of Article 28. Article 33 Nothing contained in this Schedule shall prevent the carrier either from refusing to enter into any contract of carriage, or from making regulations which do not conflict with the provisions of this Schedule. Article 34 This Schedule does not apply to international carriage by air performed by way of experimental trial by air navigation undertakings with the view to the establishment of a regular line of air navigation, nor does it apply to carriage performed in extraordinary circumstances outside the normal scope of an air carrier's business. Article 35 The expression "days" when used in this Schedule means current days not working days. ADDITIONAL PROTOCOL TO THE WARSAW CONVENTION

The High Contracting Parties reserve to themselves the right to declare at the time of ratification or of accession that the first paragraph of Article 2 of this Convention shall not apply to international carriage by air performed directly by the State, its colonies, protectorates or mandated territories or by any other territory under its sovereignty, suzerainty or authority.

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UNITED KINGDOM

B.

The Guadalajara Convention as applied by Schedule 2

(INTERNATIONAL CARRIAGE UNDER THE UNAMENDED WARSAW CONVENTION)

Article I In the Guadalajara Convention as applied by this Schedule: (a) "the Warsaw Convention" means the amended Convention as applied by this Schedule; (b) "contracting carrier" means a person who as a principal makes an agreement for carriage governed by the Warsaw Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor; (c) "actual carrier" means a person, other than the contracting carrier, who by virtue of authority from the contracting carrier, performs the whole or part of the carriage contemplated in paragraph (b) but who is not with respect to such part a successive carrier within the meaning of the Warsaw Convention. Such authority is presumed in the absence of proof to the contrary. Article II If an actual carrier performs the whole or part of carriage which, according to the agreement referred to in Article I, paragraph (b), is governed by the Warsaw Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in the Guadalajara Convention as applied by this Schedule, be subject to the rules of the Warsaw Convention, the former for the whole of the carriage contemplated in the agreement, the latter solely for the carriage which he performs. Article III 1. The acts and omissions of the actual carrier and of his servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the contracting carrier. 2. The acts and omissions of the contracting carrier and of his servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the actual carrier. Nevertheless, no such act or omission shall subject the actual carrier to liability exceeding the limits specified in Article 22 of the Warsaw Convention. Any special agreement under which the contracting carrier assumes obligations not imposed by the Warsaw Convention or any waiver of rights conferred by that Convention or any special declaration of interest in delivery at destination contemplated in Article 22 of the said Convention, shall not affect the actual carrier unless agreed to by him. Article IV Any complaint to be made or order to be given under the Warsaw Convention to the carrier shall have the same effect whether addressed to the contracting carrier or to the actual carrier. Nevertheless, orders referred to in Article 12 of the Warsaw Convention shall only be effective if addressed to the contracting carrier. Article V In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of the contracting carrier shall, if he proves that he acted

217

Section VI — Legislation within the scope of his employment, be entitled to avail himself of the limits of liability which are applicable under the Guadalajara Convention as applied by this Schedule to the carrier whose servant or agent he is unless it is proved that he acted in a manner which, under the Warsaw Convention, prevents the limits of liability from being invoked. Article VI In relation to the carriage performed by the actual carrier, the aggregate of the amounts recoverable from that carrier and the contracting carrier, and from their servants and agents acting within the scope of their employment, shall not exceed the highest amount which could be awarded against either the contracting carrier or the actual carrier under the Guadalajara Convention as applied by this Schedule, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to him. Article VII In relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately. If the action is brought against only one of those carriers, that carrier shall have the right to require the other carrier to be joined in the proceedings, the procedure and effects being governed by the law of the Court seised of the case. Article VIII Any action for damages contemplated in Article VII of the Guadalajara Convention as applied by this Schedule must be brought, at the option of the plaintiff, either before a Court in which any action may be brought against the contracting carrier, as provided in Article 28 of the Warsaw Convention, or before the Court having jurisdiction at the place where the actual carrier is ordinarily resident or has his principal place of business. Article IX 1. Any contractual provision tending to relieve the contracting carrier or the actual carrier of liability under the Guadalajara Convention as applied by this Schedule or to fix a lower limit than that which is applicable according to the Guadalajara Convention as applied by this Schedule shall be null and void, but the nullity of any such provision does not involve the nullity of the whole agreement, which shall remain subject to the provisions of the Guadalajara Convention as applied by this Schedule. 2. In respect of the carriage performed by the actual carrier, the preceding paragraph shall not apply to contractual provisions governing loss or damage resulting from the inherent defect, quality or vice of the cargo carried. 3. Any clause contained in an agreement for carriage and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by the Guadalajara Convention as applied by this Schedule, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless, for the carriage of cargo arbitration clauses are allowed, subject to the Guadalajara Convention as applied by this Schedule, if the arbitration is to take place in one of the jurisdictions referred to in Article VIII. Article X Except as provided in Article VII, nothing in the Guadalajara Convention as applied by this Schedule shall affect the rights and obligations of the two carriers between themselves.

218

Section VII Cases

Chapter 14

Courts Summaries of decisions*

I. DECISIONS ON INTERNATIONAL CONVENTIONS A. THE HAGUE PROTOCOL TO AMEND THE WARSAW CONVENTION FRANCE

The Hague Protocol—Protocol not applicable to accident having occurred before its coming into force. See also subsection II, Wilful misconduct and equivalent fault. 1. S.A.G.E.T.A. v. Aqui!incr. France, Cour d'appel de Paris, 29 October 1966. R.F.D.A. 88 (1967); analysis and comment by E. du Pontavice, Rev. Trim. Dr. Comm. 613 (1967). 2. Gilmore v. Air France. France, Tribunal de grande instance de la Seine, 25 November 1966. R.F.D.A. 88 (1967); analysis and comment by E. du Pontavice, Rev. Trim. Dr. Comm. 614c (1967). 3. Societe Mainelle d'Assurances A eriennes et cd. v. Thieraclte France, Cour de cassation, 2.6-ne chambre civile, 18 July 1967. J.C.P. IV, 134 (1967). Note: The same rule has been applied with respect to accidents prior to the coming into force of the French law of 2 March 1957, in Lorans v. Air-France and Caloez v. Air France, Cour d'appel de Paris, 27 June 1967; R.F.D.A. 340 (1967). B. THE WARSAW CONVENTION

Applicability—(a) Military Personnel Carried on Civil Aircraft Chartered by Military Authorities—Convention Applicable (1 and 2); (b) Round Trip Interrupted by Surface Transportation—Convention Applicable (3): 1. Mertens v. Flying Tiger Line, Inc. USA, United States Court of Appeals, Second Circuit, 16 February 1965. 9 Avi 17,475; See extracts from judgement in Chapter 15. • The material in this section has been collected by Mr. E. du Pontavice (French cases), Mr. M. P. Lodrup (Scandinavian cases), Mr. M. Martin, graduate student at the Institute of Air and Space Law (German cases), and Mr. R. V. Ranadive, Assistant to the Editor (USA cases). Since previous issues of the Yearbook of Air and Space Law did not contain notes on decisions rendered by courts in the Federal Republic of Germany, the present Yearbook reports on important cases of the last live years.

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Section VII — Cases — Courts 2. Glassman v. Flying Tiger Line, Inc. USA, United States District Court, Northern District of California, 10 October 1966. 9A vi 18,295. Held: Convention applicable as carriage performed for the State and not by the State. 3. Egan v. Kollsman Instrument Corporation. USA, New York Supreme Court, King's County, 28 October 1964. 9A vi 17,280. Round trip ticket for travel New York/Vancouver via Seattle—Return journey between Vancouver and Seattle by bus due to cancellation of flight—Refund of the fare for the sector Vancouver/Seattle—Aircraft crashed on flight from Seattle to New York—whether original contract for international carriage replaced by new contract for domestic carriage. Held: carriage remained international in spite of surface transportation from Vancouver to Seattle and refund of the air fare for that sector. Carriage of Mail—Postal parcels carried from Marseille to Niamey—DelayAgreement between French Government and Air France for the Carriage by Air of Postal Parcels of 15 October 1947—Respective obligations of Air Carrier and Postal Administration. France, Cour de Cassation, 10 mai 1966. II European Transport Law 1041 (1967). In case of absolute necessity, the air carrier is not responsible for not having forwarded postal parcels on board the first departing aircraft, namely when the volume and the weight of the parcels render it necessary to postpone their shipment. Pursuant to the agreement of the 15th October 1947 between the French State and Air France for the carriage by air of postal parcels, Air France undertakes to transfer the goods to the Postal Administration, sole in charge of their delivery. Conditions of Carriage (IATA)—Ignorance by client—Conditions printed in foreign language. See also Warsaw Convention, "Loss of Goods." Germany (Fed. Rep.), Oberlandesgericht, Stuttgart, 10 October 1963. 15 Z.L.W. 63 (1966). The plaintiff was seriously injured on 11 March 1968 in the crash of a helicopter on a flight from Cologne to Brussels. On 6 March 1961 he brought a claim for compensation against the carrier and the pilot for material damages, personal suffering, and for a declaration that the defendant is obliged to compensate all future damages resulting from the crash. The damage action against the pilot was dismissed because of the expiration of the period of limitation specified in the conditions of carriage printed on the ticket. The Landgericht held that these conditions elaborated by IATA apply even though they were not printed in the German language which the plaintiff alleged was the only language known to him and that, when they are printed in the English and French language, passengers who do not understand these languages must insist on a translation in order to decide whether or not to contract under these conditions. This decision of the Landgericht was overruled by the Court

222

SUMMARIES OF DECISIONS of Appeals which was upheld by the Federal Supreme Court, but only for the reason that the defendant acted in bad faith when invoking limitation; see also "Limitation of action." Contributory Negligence, see Loss of Goods, hereunder. Documents of Carriage—( a) Air Waybill—Bank designated as consignee (1); (b) Passenger ticket—Late delivery—Unlimited liability of carrier (2); Required: statement in too small type—Unlimited liability (3). 1. Tanneries de Lutete v. Compagnie Air France et at.

France, Cour d'appel de Paris, 16 November 1966. R.G.A.E. 380 (1966), with note by M. de Juglart; R.F.D.A. 70 (1967); analysis and comments by E. du Pontavice, Rev. Trim. Dr. Comm. 280, 614 (1967). Le vendeur avait fait tenir a son acheteur, les Tanneries Lutete, un "delivery order" dressti par la Banque populaire suisse, alors qu'il avait lui-meme inscrit comme destinataire, dans la lettre de transport aerien accompagnant les marchandises, le Credit Lyonnais et non la Banque populaire. Air-France est dont fonden a refuser la livraison 5. tout autre que le Credit Lyonnais, tant qu'elle n'a pas recu un ordre formel du Credit Lyonnais ou la preuve d'une cession des droits du Credit Lyonnais å celui qui se presente pour prendre livraison. En effet, le transporteur est averti par la mention du nom d'une banque que celle-ci est destinee å recevoir les fonds de I'acheteur, veritable destinataire de la marchandis. 2. Mertens v. Flying Tiger Line, Inc.

USA, United States Court of Appeals, Second Circuit 16 February 1965. 9 Avi 17,475; see extracts from the judgement in Chapter 15 hereunder. Ticket delivered on board aircraft ready to take off. Held: Limitation of liability inapplicable. The manner in which ticket was delivered amounts to non-compliance with Article 3(2) since passenger was denied opportunity to protect himself against limitation. Therefore, unlimited liability of carrier. 3. List v. Alitalia.

USA, United States Court of Appeals, Second Circuit, 16 December 1966. 9 A vi 18,375; see extracts from the opinion and the dissent in Chapter 15. Fatal Accident—Damages—Additional damages claimed under national law (1); Compensation for damage below limit—Limit not minimum (2); Effect of social security benefit under German law (3).

1. Noel v. Linea Aeropostal Venezolana. USA, United States District Court, Southern District of New York, 29 Nov. 1966.. 9A vi 18,347; 260 F. Supp. 1002 (1967) . Action under Section 4 of the Death on the High Seas Act—Claim against carrier for additional damages allowable under foreign law. Held: Under applicable foreign law action is not barred by pecuniary damage claim previously allowed under Death on the High Seas Act.

223

Section V!! —Cases — Courts 2. Pigeon v. Laminoire du Dauphine et al. France, Tribunal de grande instance de Grenoble, 25 April 1967. R.F.D.A. 355 (1967); R.G.A.E. 295 (1967). Comme la limite de responsabilit6 prevue par la Convention de Varsovie ne constitue pas une indemnit6 forfaitaire mais un plafond, les ayants droit de la victime ne peuvent pretendre, dans la limite fix6e par la Convention, qu'ii la reparation du prejudice qu'ils ont effectivement et individuellement subi. 3. Germany (Fed. Rep.), Bundergerichtshof, 14 May 1963. 12 ZLW 295 (1963); XVI Neue Juristische Wochenschrift 1125, 1926 (1963). The widow of a passenger killed in an aircraft crash near Rio de Janeiro had received DM 35.000 on account of the accident insurance which the defendant had contracted in favour of the passengers. The plaintiff, having paid to the widow the social insurance benefits to which she was entitled, argued that they had been subrogated in the widow's claims against the defendant and asked reimbursement of the amount paid to the widow as social insurance benefits.—Reversing the lower courts, the Federal Court held that the defendant had no claim because under Article 50(3) of the Air Navigation Act, the payment of the benefits provided by the accident insurance extinguishes the damage claim against the airline; the said Article 50, dealing with a question not settled by the Warsaw Convention, is not in violation of, nor inconsistent with, the latter. Jurisdiction—(a) Forum of co-defendant (1); (b) Meaning of "Place of business through which contract was made" (2); (c) Scope of Article 28 (3). 1. Hoffman v, BOAC et al. USA, New York Supreme Court, New York County, 16 September 1964. 9A vi 17,180. Plaintiff suffered injuries when descending portable stairway supplied by the co-defendant, a New York corporation—action for damages against the carrier and co-defendant brought in New York Court. Held: under Article 28, only Paris, France or London, England qualified as a proper forum for an action against BOAC but co-defendant can not claim benefit of Article 28 which applies only to the parties of the contract. 2. Eck v. United Arab Airlines, Inc. USA, United States Court of Appeals, Second Circuit, 13 May 1966. 9A vi 18,147; see extracts from the judgement in Chapter 15. Return ticket purchased from SAS office in California for travel Zurich/Zurich via Vienna, Istanbul, Athens, Beirut, Jerusalem, Cairo, Rome, and Naples Crash of United Arab Airlines aircraft between Jerusalem and Cairo—Action for personal injury. Held: 1) SAS office in California acted as defendant's agent; 2) the U.S. Court has jurisdiction as the SAS office in California was defendant's "place of business" in the territory of the United States "through which the contract was made." 3. Mertens v. Flying Tiger Line, Inc. USA, United States Court of Appeals, Second Circuit, 16 February 1965. 9 Avi 17,475; note by G. S. Cook in Harvard International Law Club Journal (Winter 1965), 131; see extracts from the judgment in Chapter 15. Article 28 (1) refers only to nation in which action must be brought under the Convention, and the choice of a court within a nation is governed by the domestic law of that nation, and not by the Convention.

224

SUMMARIES OF DECISIONS

Liability of Carrier—(a) Injury to passenger—Meaning of "Operations of Embarking or Disembarking'—Injury suffered in courtyard of Customs House— Convention inapplicable (1); (b) Loss of Goods—Meaning of "During the Carriage by Air"— Goods Lost Between City and Airport—Convention inapplicable (2); Loss of Goods while in custody of custom authorities—Convention inapplicable (3 and 4); Validity and Scope of IATA Conditions of Carriage (3). I. Mache v. Compagnie Air France. France, Cour d'appel de Rouen, 12 April 1967. Bulletin des Transports 218 (1967); R.F.D.A. 343 (1967); Gaz. Pal. 15 September 1967; R.G.A.E. 289 (1967); see extracts from the judgment in Chapter 15. Si la Convention de Varsovie regit notamment les accidents survenus å terre, au cours des operations d'embarquement et de debarquement, c'est uniquement dans la mesure oil ces dernieres operations s'effectuent sur l'aire de traffic, c'est-ådire a un endroit de l'aeroport oil les passagers sont soumis aux risques aeriens. L'accident qui n'entre pas dans les previsions de la Convention de Varsovie releve du droit commun des contrats de transports terrestres. Celui-ci oblige le transporteur ii conduire le passager sain et sauf å destination et å reparer, le cas echeant, entierement les dommages dont celui-ci pourrait etre victime. Cependant, la clause !imitative de responsabilite inset-6e dans les conditions generales de transport des passagers s'applique å tous autres services annexes au transport assure par le transporteur.

2. Pick v. Lufthansa German Airlines. USA, New York City Civil Court, New York County, 3 December 1965. 9 Avi 18,077. Action for damages for loss of goods during carriage from city to the airport performed by air carrier's agent—Actual value of goods not mentioned on the air waybill—Letters "WCL," meaning "Warsaw Convention Limitation," typed on the face of the air waybill in two boxes headed "Shipper's declared value for carriage" and "Shipper's declared value for Customs." Held: Since the loss of goods occurred during ground transportation, the Convention did not apply. However, carrier's liability was limited to the amounts specified in the Convention, on account of the shipper's own voluntary agreement. 3. Germany (Fed. Rep.), Oberlandesgericht Stuttgart, 1 October 1963. 15 Z.L.W. 63 (1966). An export firm was commissioned by the Plaintiff to arrange for transportation of several cartons of goods to St-Vincent (West Indies) and delivered the cartons to the defendant airline. The latter carried the goods to New York where they were handed over to BOAC for further carriage to St. Vincent. On arrival, all but three cartons were delivered to the consignees. For reasons which are disputed by the parties, the three cartons were auctioned off by the customs authorities. The plaintiff sued BOAC for damages both under Article 18, paragraph 1, of the Warsaw Convention and on account of breach of contractual duties ("positive Vertragsverletzung"). The Iower court and the Oberlandesgericht dismissed the claim. The latter held that: the goods, having been lost not while in the custody of BOAC, but while in the custody of the customs authorities at the airport of destination, the event causing the damage, namely the loss of three parcels, had

225

Section VII — Cases — Courts not occurred "during the carriage by air" within the meaning of Article 18, paragraphs 1 and 2, of the Warsaw Convention; moreover, goods are considered as having been "lost" by the carrier when he is not able to reposses them or when he delivers them to the wrong person from whom the goods can never be recovered. The customs authorities to whom the goods were handed over could not be considered as wrong recipient. As regards the application of German law principles to the alleged violation of contractual duties (positive Vertragsverletzung), the court held: 1) it follows from Articles 21 and 25 of the Warsaw Convention as well as from the (hypothetical) intention of the parties to the contract that the law of the court—and not, as pleaded by the defendant, the law of place of delivery—applied in the present case, and 2) no actionable violation of contractual duties was proved because Section 4 (a) of the Conditions of Carriage, applicable to the present case, excluded the liability of the air carrier unless the damage has been caused by his negligence or wilful fault of the carrier and neither had been established. 3) The said Section 4 (a) was not contrary to Article 32 of the Warsaw Convention because it does not limit the liability of the carrier in the case of proof of his fault and applies only where no action arises under the Warsaw Convention. 4. Germany (Fed. Rep.), Bundesgerichtshof, 9 October 1964. 14 Z.L.W. 167 (1965); XVII Neue Juristische Wochenschrift 2348 (1964). Shortly before the departure of the aircraft the plaintiff had stopped the goods embarked thereon. They were taken off the aircraft only during transit stop in Rio de Janeiro.—Dismissing the recourse (Revision) against the judgement of the appellate court which had rejected the plaintiff's action for damage, the Bundesgericht held: 1) that because Article 5, paragraph 1, and Article 16, paragraph 1, of the Warsaw Convention imposed the duty to prepare the airway bill and the documents required by customs regulations upon the consignor, the carrier is liable only when the consignor proves that the absence of proper documents was due to the carrier's fault; 2) that the latter may disregard the consignor's request to stop the goods if compliance is technically impossible or involves danger of seizure of other goods or the aircraft itself; and 3) that, in the present case, the defendant was neither responsible for the absence of the documents required by the customs regulations of the place where they were off-loaded, nor was he obliged to take into consideration the possibility of a seizure or to inform the plaintiff of a possible danger to the goods when unloaded in Rio de Janeiro. Limitation of action—(a) Applicability of limitation—Application to action for damage for non-execution of contract (1); Application in spite of mental illness of claimant (10); Not applicable to action of subrogation (2); Nor to action based on criminal offence (3); Nor following promise not to invoke limitation (4); (b) Article 29 establishes condition precedent (5 to 10); Contrary view (11); Ignorance of conditions of contract (12). 1. Wegge v. Sabena. Belgium, Tribunal de Commerce de Bruxelles, 20 December 1966. Droit Europ€en des Transports 453 (1966); analysis and comment in English, ibid., by R. R. Nys. Attendu qu'il s'agit d'une demande en remboursement du prix du transport, fondee sur 1'inexecution du contrat par le transporteur; que tette inexecution å la supposer etablie est de nature å entrainer la responsabilite de la defenderesse, en sa qualite de transporteur aerien;

226

SUMMARIES OF DECISIONS

Attendu que la prescription de deux ans est applicable å toute action en responsabilite dirigee contre le transporteur, ainsi qu'il resulte des termes generaux de l'article 29 de Ia Convention internationale de Varsovie; Qu'il importe peu, en presence des termes generaux de l'article 29 precite, que la Convention internationale de Varsovie ne contienne aucune disposition relative au remboursement du prix du voyage; Attendu, en consequence, que le moyen de prescription, deduit de Particle 9 de la loi du 25 ao(it 1891, ne peut titre accueilli. 2. Cartier v. Compagnie U.T.A. et al. France, Tribunal de grande instance de la Seine, 17 March 1967. R.F.D.A. 350 (1967), with note by Georgiades; analysis and comment by E. du Pontavice, Rev. Trim. Dr. Comm. 611 (1967); R.G.A.E. 174 (1967), with note by P. de la Pradelle; I.C.P. II, 1526 (1967), with note by M. de Juglart et E. du Pontavice. 3. Pagliero v. Brochard et Aim-Club de Lorient. France, Cour de caseation, leme Chambre civile, 19 December 1966. R.F.D.A 216 (1967). L'accident mortel avait ete cause par un fait delictueux du pilote decide. Bien que son dices ait entraine l'extinction de faction publique, l'action civile dirigee contre son ayant droit et qui avait pour cause le mime fait, restait (en depit de l'extinction de ('action publique) soumise a la prescription de l'action publique qui est de trois ans. 4. Germany (Fed. Rep.) Landgericht Cologne, 30 November 1961. 11 Z.L.W. 310 (1962). Bundesgerichtshof, 7 May 1963. 12 Z.L.W. 299 (1963); XVI Neue Juristische Wochenschrift 1405, 1406 (1963). Upon appeal against the decision of the trial court (Landgericht) holding that the damage claim for personal injury caused by an aircraft accident was barred by limitation and that such defence did not constitute a violation of the principle of good faith (Treu and Glauben) nor an "abuse of rights" although the defendant's attorney had promised, during pre-trial negotiations, not to raise that exception, the appellate court held, and the Supreme Court (Bundergerichtshof) agreed, that the defence could not be upheld in view of the promise made during the pre-trial negotiations. Note: Landgericht Cologne, 9 April 1964, 14 Z.L.W. 88 (1965) applied the ruling of the Supreme Court in the case above. 5. Joubert v. Societe Afric-Air, C.A.M.A.T., et autres. France, Tribunal de grande instance de la Seine, 13 January 1967. R.G.A.E. 56 (1967), with note by E. du Pontavice; R.F.S.A. 236 (1967); analysis and comment by E. du Pontavice Rev. Trim. Dr. Comm. 283 (1967). 6. Air France et C.A.M.A.T. v. Agent. judiciaire du Tresor France Public et consorts Peintre-Dantas. France, Cour d'appel de Paris, 4 March 1967. R.F.D.A. 219 (1967).

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Section VII — Cases — Courts 7. Lorans v. Air-France, and Calvez v. Air-France. France, Cour d'appel de Paris, 27 June 1967. R.F.D.A. 340 (1967). 8. Kerdranvat v. Belliard et al. France, Cour d'appel de Rennes, 5 January 1967. R.F.D.A. 222 (1967).

9. Gehin et al. v. Afro-Club de Bourgogne et Compagnie l'Urbaine et la Seine. France, Tribunal de grande instance de Chalon-sur-Saone, 18 October 1966. J.C.P. II, 14988 (1967) with note by C.C.; D. 190 (1967); R.F.D.A. 92 (1967); Rev. Trim. Dr. Civil 396 (1967), with note by Durry; analysis and comment by E. du Pontavice, Rev. Trim. Dr. Comm. 286, 614 (1967).

10. Sackos v. Air France. USA, New York Supreme Court, New York County, 24 May 1965. 9 Avi 17.673. Action for damages delayed for two and a half years on account of alleged mental illness and disability of plaintiff for a period of more than six months— Held: Article 29 establishes a condition precedent and is not a statute of limitation—Action dismissed.

11. Egan v. Kollsman Instrument Corporation. USA, New York Supreme Court, King's County, 28 October 1964. 9 Avi 17,280. Action for damages not commenced within the period stipulated in Article 29. Held: Article 29 does not establish a condition precedent as the Convention does not create the remedy. Note: However, under the applicable Rules of Procedure, it was held that the suit in the New York Court was timely commenced following termination of action in the Federal Court.

12. S. D. Tehran! and Co. v. KLM-Royal Dutch Airlines. USA, New York Supreme Court, New York County, 9 December 1964. 9 Avi 17,344. Damages claimed for delay in delivery of goods. Action brought after expiration of period of limitation mentioned on the reverse of air waybill—Ignorance of conditions of contract. Held: Delay in action not condonable since conditions of contract binding on the plaintiff.

Loss of goods—See Liability of Carrier. Duty of consignor in case of sale C.A.F.-Irregular traffic documents—No reservation of storage space made by seller at intermediate airport—Contributory negligence of seller. Tanneries de Lutece v. Air-France et al. France, Cour d'appel de Paris, 16 November 1966. R.G.A.E. 380 (1966), note by M. de Juglart; R.F.D.A. 70 (1967); commentary by E. du Pontavice, Rev. Trim. Dr. Comm. 290, 615 (1967). La vente C.A.F. titant une vente a l'embarquement et les risques du voyage h la charge de l'acheteur, le vendeur C.A.F. n'en a pas moins l'obligation de soigner

228

SUMMARIES OF DECISIONS l'expedition et, des lors, il a commis une faute dans ses obligations en acceptant, pour representer la marchandises, des lettres de transport aerien irregulibres parce qu'incompletes. Il a ainsi participe å la faute ayant seul permis l'erreur d'envoi d'ou r6sulte le manquant. En outre, le stationnement prolonge dans un aerodrome d'escale aurait pu istre egalement evite si le vendeur avait reserve å l'avance un fret suffisant. Cette precaution qui est de pratique courante entrait aussi dans les soins que le vendeur devait a son acheteur relativement å l'expedition de la marchandise. Passengers—See Fatal accident, liability of carrier. Wilful misconduct and equivalent fault—Airport lacking facilities for modern operations—No Portuguese-speaking crew member on board aircraft landing in Brazil—Liability limited (1); Attempted "sneak-in" by pilot—Physical disability of pilot and co-pilot—Absence of sound proof (2); "Faute" of carrier not proved (3). I. Germany (Fed. Rep.), Landgericht Cologne, 9 April 1964. 14 Z.L.W. 88 (1965). The plaintiff claimed damages for personal injury in excess of the limits established by the Warsaw Convention on the ground that the accident was caused by a default equivalent to wilful misconduct (grobe Fahrlässigkeit) in as much as the defendant airline was operating into an airport (Rio de Janeiro) which lacked facilities and equipment for modern airline operations and had not provided a Portugese-speaking crew, the crash being partly due to difficulties in communications. The Court held that (1)Grobe Fahrlässigkeit (gross negligence), namely total disregard of something which is clear to an individual in the particular case, or omission of obvious and simple considerations, is equivalent to wilful misconduct within the meaning of Article 25 of the Warsaw Convention; and (2) that the claimant had failed to prove gross negligence of the defendant because the airport of Rio de Janeiro was used by all airlines which fly to Brazil and there was no apparent need to speak any other language but English at the time of the crash. 2. Berguido v. Eastern Airlines, Inc. USA, United States Court of Appeals, Third Circuit, 23 November 1966. 9 Avi 18,319. No proof that physical disabilities of pilot and co-pilot or attempted "sneak-in" landing by pilot in violation of minimal altitude requirements were probable cause of accident. 3. Seban v. Compagnie Air-Cargo (Aigle Azur Extreme-Orient). France, Cour de cassation, litre chambre civile, 16 January 1967. R.F.D.A. 66 (1967); analysis and comment by E. du Pontavice, Rev. Trim. Dr. Comm. 613 (1967). Note: The French Law of 2 March I957 has introduced the expression "faut inexcusable" as being the equivalent fault contemplated by Article 25 of the Warsaw Convention. For cases dealing specifically with this expression, see hereunder subsection II, Wilful Misconduct and Equivalent Fault.

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Section V!! — Cases — Courts II. DECISIONS ON NATIONAL LAWS Accident reports—Can not be set aside by administrative tribunal. Germany (Fed. Rep.), Bundesverwaltungsgericht, 20 July 1962. 12 Z.L.W. 122 (1963); XV Neue Juristische Wochenschrift 1834 (1962). On the request of the carrier to set aside an accident investigation report, the Federal Administrative Supreme Court held that such report is not an order within the meaning of Article 42, paragraph 1 of the Act for procedure of the Administrative Courts and that the request must therefore be rejected. Obiter: The civil courts deciding on damage claims make their own assessment of the cause of the crash and will appreciate the value and merits of official accident reports on the basis of the skill and impartiality of the Board of Inquiry. Air labour law—(a) Dismissal—Criminal offence—Testing of aircraft without being licensed not considered offence (1); Dismissal of pilot for importing foreign currency illegally—Dismissal justified (2); Notice of dismissal—Obligations and rights of airmen following notice (3 and 4); (b) Judicial control of disciplinary action—Maintenance mechanic—Unjustified blame (5); (c) Standby crew—Accident—Workmen's compensation (6); (d) Special status of Air France personnel— Contract of employment—Lack of jurisdiction of civil courts (7); Remuneration— Grant of pay not approved by competent authority (8). 1. Syndicat national du Personnel navigant de l'Aeronafuique civile v. Dumont et at. France, Cour de cassation, Chambre criminelle, 30 January 1967. J.C.P. IV, 39 (1967); analysis and comment by E. du Pontavice, R.F.D.A. 33 (1967); Rev. Trim. Dr. Comm. 276 (1967). Est justifie i'arret qui, pour relaxer des pilotes, preposes d'un constructeur d'avions, prevenus d'avoir, sans posseder aucun des brevets, licences et qualifications professionnelles exiges par la loi, procede å des contröles d'essais et receptions d'avions, enonce que les essais en vol incrimines ne constituent que des essais officieux, non obligatoires, effectues par scrupule avant la presentation pour mise au point de l'appareil å sa sortie de l'usine. 2. Air-France v. Scheuermann. France, Cour de cassation, 30 January 1967. Bull. Cour de cass. IV, No. 1, 77 (1967); R.G.A.E. 268 (1967), with note by Ribettes-Tilhet and Gignoux. En l'e'tat des dispositions du status du personnel navigant de la compagnie Air-France, n'est pas abusif le congediement d'un officier pilote radio, revoque d'office pour importation de monnaie etrangi re sans declaration, alit punissable d'un mois d'emprisonnement, de nature ii entrainer des contröles ulterieurs renforces, source de discredit pour la compagnie. 3. Afaire Maitre. France, Cour de cassation, Chambre sociale, 30 November 1966. J.C.P. IV, 50 (1967); analysis and comment by E. du Pontavice, Rev. Trim. Dr. Comm. 275 (1967). Pendant la duree du preavis l'employeur ne peut demander au navigant licencie que le meme travail mensuel moyen reclame des autres membres du personnel,

230

SUMMARIES OF DECISIONS et s'il n'utilise pas ses services, il doit lui regler, immediatement et en une seule fois, une indemnite calculee sur la base du salaire global mensuel moyen de la derniere annee d'activite normale; par application de ]'article 17-6e de la loi du 4 avril 1953, insert* sous Particle 162-2 du Code de ]'Aviation civile et commerciale.

4. Societe des avions Meyer. France, Cour de cassation, Chambre sociale, 22 February 1967. J.C.P. IV, 50 (1967); analysis and comment by E. du Pontavice, Rev. Trim. Dr. Comm. 609 (1967 ). Lorsque l'employeur n'a pas, pendant le alai de preavis demande a un radionavigant qu'il a licencie un travail aerien mensuel egal a la moyenne de celui demande pendant la meme periode aux membres du personnel navigant de Fentreprise, comme le lui impose ]'article 17 de la loi du 4 avril 1953 (insere sous ]'article 162 du Code de ]'Aviation civile et commerciale), ]'interesse a droit a un complement de remuneration destine å porter celle-ci a son montant normal.

5. Air-France v. Besnier. France, Cour de Cassation, 13 March 1967. Bull. Cour de Cass. IV, No. 3, 201 (1967). Apr6s avoir releve que le mecanicien navigant d'un avion d'Air France avait inforene, a une escale, le commandant de bord d'une avarie survenue dans un moteur de l'appareil, et que, malgre son insistance, le commandant avait decide de repartir, les juges du fond peuvent entimer, ne ]'absence de tout consign precise a l'epoque, que ce mecanicien n'avait pas commis de faute justifiant ]'inscription a son dossier d'un blame fonde sur "son insuffisante fermete pour empecher la poursuite du vol," le commandant ayant pris le risque du depart sous sa propre responsabilite et en connaissance de cause et rien n'etablissant que ]'intervention du mecanicien n'ait pas ete faite avec une fermete suffisante.

6. C.P.C.S.S.R.P. v. Leconte. France, Cour d'appel de Paris, 4 February 1967. Recueil General des Lois 286 (1967); D. 222 (1967) ; Rev. Trim. Dr. Comm. 270 (1967). La Cour declare, que la victime devait se tenir a la disposition de son employeur et pouvoir eire jointe a tout moment et que cette mise a la disposition laissait subsister le bien de subordination qui le les navigants a la Compagnie; il existe done une presomption d'imputabilite des accidents du travail, qu'il appartient a la defenderesse de detruire. Celle-ci faisait valoir que la victime avait deliberement choisi l'activite a laquelle elle se livrait au moment de ]'accident sans se preoccuper de ]'augmentation du risque encouru et que les dispositions relatives aux accidents du travail sont inapplicables en periode de releve d'equipage, lorsque Ies navigants ont deliberement choisi de se livrer a une activite totalement etrangere a leurs fonctions. Sur ce dernier point, la Cour repond: Le mecanicien, en allant se baigner sur la plage proche de ]'hotel, a simplement recherché un moment de détente particulierment necessaire sous un climat tropical. D'autre part, les membres de ]'equipage etaient astreints a des exercices de sauvetage en mer; l'exercice fait par Ie mecanicien, s'il n'etait pas commando par I'employeur, rentrait neanmoins dans le champ des exercices recommandes aux navigants. Ainsi la defenderesse ne rap-

231

Section VII — Cases — Courts porte pas la preuve, qui lui incombe, que le mecanicien se soit, au moment de l'accident, livré a une activit6 totalement etrangere å ses fonctions dans un intetet personnel et sans aucun rapport avec le travail. 7. Barbier v. Air France. France, Cour de cassation, Chambre sociale, 7 June 1967. J.C.P. IV, 110 (1967). No jurisdiction of civil law courts with respect to regulations governing conditions of contracts of employment, which has been approved by competent administrative authority. 8. Air France v. Trentoulet. France, Cour d'appel de Paris, 15 October 1966. J.C.P. IV, 84 (1967). Comme le decret du 22 juin 1960 prevoit que toutes mesures relatives aux elements de remuneration dans les entreprises å statut, dont Air France, doivent gitre soumises au ministre competent et ne deviennent exicutoires qu'apres approbation de ce ministre et du ministre des Finances; aucune remuneration, autre qu'exceptionnelle et temporaire, ne peut gitre accordee å son personnel par la Compagnie Air France en ]'absence de dispositions statutaires ou de decisions de la Direction incorporees au statut consenti. Air Traffic Control Services—Liability—Extent of duly of care (1, 2, 3. and 4). 1. Maryland for the use of Meyer v. United States. USA, United States District Court, District of Columbia, 30 June 1966. 9 Avi I8,329; 257 F. Stipp. 768; Note in 33 J. Air L. and Com. 364 (1967). Air Traffic Control Services' duty of care not absolute—Adequacy of discharge of duty—Failure to observe, and to transmit warning of, the presence of another aircraft. Federal Government held liable for negligence of its employee. 2. United States v. Furumizo. USA, United States Court of Appeals, Ninth Circuit, 9 August 1967. 10 Avi 17,426. Aircraft cleared for take-off—Wake turbulence warning issued by air traffic control services—Aircraft taking off in disregard of warning—Crash due to turbulence—Duty of air traffic control sevice—Compliance with Air Traffic Regulations and Air Traffic Control Procedure Manual—Whether failure to withhold clearance amounts to negligence. 3. Tilley v. United States. USA, United States Court of Appeals, Fourth Circuit, 3 April 1967. 10 Avi 17,199; 375 F. 2d 678 (1967). Personal injury caused by aircraft skidding off the runway—Alleged negligence of tower controller in issuing orders to pilot—Whether duty for safe operation of aicraft under Visual Flight Rules rests with pilot or air traffic controller—Federal Government held responsible for negligence of air traffic controller.

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SUMMARIES OF DECISIONS 4. Ferrando v. Aero-club Pierre Trebod Sud-Aviation. See also hereunder "Fatal Accident." France, Tribunal de grande instance de la Seine, 8 March, 1967. R.F.D.A. 238 (1967). La mere de la victime d'un accident mortel survenu å un membre d'un aeroclub assigne l'aeroclub en pretendant que l'aeroclub a commis une faute. Le tribunal estime que n'ont commis une faute ni le president commissaire de vol de l'aero club ni le commandant d'aerodrome, en l'espece le contröleur de la navigation aerienne responsable du contrSle du circuit d'aerodrome. Airports—(a) Establishment—Condemnation of street—Compensation (1); Zoning—Compensation (2); Non-approval of zoning ordinance (3); (b) Liability— Damage caused to aircraft by faulty maintenance of airport (4); Damage caused to motor vehicle because of icing conditions of neighbouring road—Lack of jurisdiction of civil courts (5); Liability towards visitors (6); Faulty maintenance of tarmac—Liability of airport denied (7); (c) Noise—Inconvenience to neighbours (8); Damage to mink farm (9). 1. Horton v. City of Atlanta. USA, Georgia Court of Appeals, 5 September 1967. 10 Avi 17,488. Closure of a street to permit extension of runway of airport—deprivation of right of direct travel enjoyed over years—whether closing of the street amounts to compensable taking of property. 2. Jackson Municipal Airport Authority v. Evans. USA, Mississippi Supreme Court, 17 October 1966. 9 Avi 18,297. Municipal airport zoning ordinance—Imposition of height restrictions on property adjoining the airport—Interference with unrestricted use and enjoyment of private property—Right to compensation for "taking." 3. Germany (Fed. Rep.), Verwaltungsgericht Hanover 27 March 1963. 13 Z.L.W. 144 (1964). The competent administrative authority having refused to approve a zoning ordinance passed by the City Council of a community adjacent to an airport, the City sought an order directing the approval of that ordinance. In dismissing the action, the Court held: 1) that the zoning ordinance was contrary to Section 1 of the Federal Building Code because it disregarded the safety and health of the residents of zoned residential areas who would be living within one of the approach paths to the airport and, thus, be exposed to the aircraft noise during landings and take-offs and to the dangers resulting from low flying aircraft; and 2) that the Air Navigation Act (Luftverkehrsgesetz), which deals with the safety of air traffic and not with the protection of the population against aircraft noise and overflights, is not a special law capable of superseding the Federal Building Code. 4. Norsk Flyforsikringspool og Nordiska Poolen for Luftfartsforsakring v. Staten. 3 Arkiv for Lufttreet 224 (1967). Three aircraft were damaged because the surface of the airport was broken up while they tested their engines on full power. Held: The Norwegian State being

233

Section VII — Cases — Courts the owner and operator of the airport is liable for the damage because the airport authorities had not taken reasonable care with respect to the maintenance of the surface at the place where aircraft engines were usually tested. 5. Agroport de Paris v. Duhamel et al. France, Cour de cassation, 12 April 1967. Bull. Cour de tass., I. No. 122, 88 (1967) ; I.C.P. 1V, 77 (1967) . Une collision survient entre deux automobiles, dans le passage souterrain passant sous les pistes d'envol du terrain d'aviation d'Orly. Alleguant que cet accident avait ete provoque par une plaque de verglas qui resulterait de l'emploi d'un procede anti-brouillard utilise par l'Aeroport de Paris, Pun des automobilistes avait demande ii l'Aeroport de Paris reparation du dommage subi par son vehicle. Sur la competence: L'article premier de la loi du 31 decembre 1957 n'a pas pour objet et ne saurait avoir pour effet de deroger aux regles normales de competence applicables aux actions dirigees contre une personne morale de droit public sur un fondement autre que celui qui est seul vise par ce texte. Par suite, violent la disposition susvisee les juges du fond qui rejettent l'exception d'incompetence soulevee par un agroport assign en reparation d'une collision d'automobiles, qu'aurait provoque le verglas de la route da a l'emploi d'un procede anti-brouillard, alors qu'il est etabli qu'aucun des vehicules endommages n'appartenait å l'aeroport ou ne travaillait pour son compte et que, par suite les fautes eventuelles qu'une personne morale de droit public avait pu commettre, se rattachaient necessairement, si elles etaient etablies, a un mauvais fonctionnement du service public. En rejetant l'incompetence ratione materiae soulevee devant le Tribunal par l'aeroport de Paris aux seuls motifs qu'il s'agissait "tout simplement d'un accident de circulation" relevant des tribunaux judiciaires alors qu'il est etabli qu'aucun des vehicules endommages n'appartenait å l'Aeroport de Paris ou travaillait pour son compte, et que des lovs les fautes eventuelles qu'une personne morale de droit public avait pu commettre se rattachaient necessairement, si elles etaient etablies, a un mauvais fonctionnement du service public, la Cour d'Appel a viole le texte susvise. 6. Gagne v. The Crown. Canada, Exchequer Court, 24 October 1967. i Ex. C.R. 263 (1967). Action against the Crown to recover damages for physical injuries suffered by plaintiff when falling on the steps at the entrance to the Post Office building owned by the Government—Held: Crown is liable for the negligence of its employees and "preposes" in the maintenance of the steps. Note: This decision is reported here because it would also apply in the case of airport buildings which are owned by the Canadian Government. 7. Goldman v. City of Regina. Canada, Saskatchewan Queen's Bench, 3 January 1967. 60 Western Weekly Reports 612 (1967). The plaintiff proceeded from the aircraft to the terminal building over a tarmac which had been rendered slippery through a wild and unexpected snowfall. When entering the building she fell on a rubber mat which had been placed there by the airport workers and been wetted by preceding passengers. Held: There is

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SUMMARIES OF DECISIONS

no evidence which would indicate that the defendant could have prevented the injury by the use of reasonable care. The floor was dried before the first passenger entered the door and there was no conceivable method of wiping the floor in between each passenger. Also, there was no "unusual danger." 8. Bardufoss Airport case. Norway, Halogaland Court of Appeal. 3 Arkiv for Luftrett 251 (1967).* The court remarked that the building activity was high in the vicinity of the airport, and that the demand for land for house building purposes was not influenced by noise from the airport. The court was, however, of the opinion that the plaintiffs were annoyed by the airport, in the same way as many others who were not parties to the suit. According to the Neighbour Act, 1961, only unreasonable noise can give rise to damages. The court found this to be the case for only eight out of the fifteen plaintiffs who were awarded damages by the district court. The Court of Appeal based its evaluation, as regards the question of what was to be decided as an unreasonable noise, upon a tolerable limit of 100 dcb combined with certain NNI values; the latter also taking into consideration the frequency of flights. The court paid no attention to the fact that the plaintiffs, before the airport was built, lived in a quiet farming area. It might be mentioned that the tolerable limit laid down in this case was more favourable to the plaintiffs than the limit which the court drew in the Fornebu case reported in the

Yearbook of Air and Space Law, 1965, p. 325. 9. Staten v. Korstvedt. Norway, Agder Court of Appeal. 3 Arkiv for Luftrett, Vol. 5 (1967). The plaintiff argued that low-flying jets had caused considerable damage to his farm by frightening the mink. The defendant was, however, held not liable since the court found that the plaintiff had not proved any reasonable connection between the noise and the damage. See also "Sonic Boom" hereunder.

Collision—(a) Meaning of "collision"—Yiolation of right-of-way—Absence of liability of flying club—Presumed liability under civil code—Liability of pilot (1); (b) Collision in Brazil between Brazilian and foreign aircraft—Choice of law— Application of Brazilian law (2). 1. Uriot v. Nogaret et al. France, Tribunal de gran de instance de Bordeaux, 7 November 1966. R.F.D.A. 96 (1967); analysis and note by E. du Pontavice, Rev. Trim. Dr. Comm. 605, 607 (1967). Il s'agissait d'un accident caus6 par un appareil å moteur å un planeur appartenant å a6ro-club. Le pilote du planeur, bless6, assignait le pilote de l'appareil

å moteur, qui avait commis une faute, mais aussi l'a6ro-club. D'autre part, l'a6roclub assignait le pilote de l'appareil å moteur en paiement du planeur d6truit. Les statuts de l'a6ro-club, opposables au pilote du planeur, membre du club, disposaient que le club ne serait tenu responsable des accidents survenus å ses membres que dans le cas on la preuve serait faite que l'accident est d0å une faute indiscuFor the decision of the Lower Court see Yearbook of Air and Space Law, I965, p. 325.

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Section ViI — Cases — Courts table du club. Le tribunal estime que la faut n'est pas prouvee. En consequence, le club n'est pas responsable envers le pilote du planeur; mais il obtient reparation du pilote de l'appareil å moteur qui a cause l'accident. S'agissant d'une collision entre aeronefs, les dispositions de l'article 1384, paragraphe 1, du Code civil, edictant une presomption de responsabilite, doivent s'appliquer, meme en ]'absence de choc entre les deux appareils. Il suffit que le dommage subi par l'un des appareils soit en relation directe avec la manoeuvre de l'autre. Commet une faute l'obligeant å reparer le prejudice cause au pilote d'un planeur, moniteur donnant une lecon de pilotage a une jeune stagiaire, le pilote d'un avion å moteur qui n'a pas observe la regle de priorite edictee en faveur du planeur par le decret du 13 mai 1957, au moment des manoeuvres de decollage qu'il effectuait contraignant le planeur, en train d'atterrir, å faire une manoeuvre de sauvetage (virage ii 360°) qui, n'ayant pu reussir, a provoque sa chute. Celui sur qui pese la presomption de responsabilite en application de l'article 1384, paragraphe 1, du Code civil, ne saurait s'exonerer qu'en etablissant l'existence d'un cas fortuit ou de force majeure, ou la faute exclusive de la victime. 2. Artniger v. Real S. A. Transportes Aeros. USA, United States Court of Appeals, District of Columbia Circuit, 13 April 1967. 377 F. 2d, 943 (1967). Actions arising out of mid-air collision in Brazil between an aircraft of a Brazilian Airline and a U.S. Navy airplane—Appellants residents in USA jurisdiction permitting unlimited recovery—Recovery under Brazilian law limited to 100,000 cruzeiros. Held: Brazilian law applies since Brazilian interests must supersede the interests of the other jurisdiction in which appellants reside. Contract of carriage—See hereunder Fatal Accident—Flying Club. Damage to aircraft—Damage caused by pilot—Liability of pilot—Contributory negligence of flying club. Clement v. Aeroclub "Les Ailes Chålonnaises"

France, Cour d'appel de Dijon, 23 November 1966. J.C.P. IV, 71 (1967); R.F.D.A. 347 (1967; analysis and note by E. du Pontavice, Rev. Trim. Dr. Comm. 607 (1967). Un mineur de 21 ans, membre de l'aeroclub, avait endommage, dans une manoeuvre d'atterrissage, l'avion de l'aeroclub qu'il pilotait. L'aero-club lui demande reparation. La Cour partage la responsabilite par moitie entre le pilote et l'aeroclub. En effet, si le pilote a indeniablement commis des fautes, l'aeroclub en a commis de son cote des lorsqu'il avait confie l'appareil å un pilote debutant sans le faire accompagner d'un assistant averti dans ses premiers voyages (apres 22 heures seulement de "solo"). Fatal Accident—(a)Choice of Law—Significant "contact" (1 and 2); (b) "Faroe" of Carrier—Pilot's qualifications (3); (c) Flying Club—Absence of contract of carriage—Liability not limited (4); Absence of "Faute" of president of flying club and airport. manager (air traffic controller) (5); Liability of pilot and flying club (6); Validity of disclaimer (7); Government-operated aircraft—Aerial work exe-

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SUMMARIES OF DECISIONS clued for government by private aircraft—Government liability (8); Military transport performed by commercial aircraft—Government liability (9); (e) Res ipsa loquitur—Computation of damages (19). 1. Gatenby v. Altoona Aviation Corp. USA, United States District Court, Western District of Pennsylvania, 21 October 1966. 9 Avi 18,388. Fatal accident of visting British national in Pennsylvania Held: Pennsylvania not applying lex loci delicti as a matter of course, it applies in the instant case because Pennsylvania has "the most significant contact with the case." 2. Gore v. Northeast Airlines. USA, United States Court of Appeals, Second Circuit, 23 February 1967. 10 Avi 17, 146; 373 F. 2d 717 (1967) . Death of New York resident in aircraft crash at Nantucket, Massachusetts— Massachusetts wrongful death statute applied—On appeal, limitation of liability under Massachusetts Law considered contrary to public policy of the State of New York. Held: domicile of decedent on the date of death important consideration and domicile of beneficiaries, irrelevant. 3. Sebban v. Societe Aero-Cargo France, Cour de Cassation, 16 January 1967. Bull. Cour de tass, 13 Janvier 1967. Les demandeurs, blesses lors de l'atterrissage, suivi de l'incendie de I'aeronef, avaient invoque la faute personnelle du transporteur, resultant du fait que le pilote faisait en meme temps fonction de navigateur alors qu'il ne possedait le brevet superieur du navigant. La Cour a juge que "les fonctions de navigateur peuvent gitre remplies par le pilote, s'il est titulaire d'une licence de navigateur"; et "que la presence å bord d'un navigatur titulaire du brevet elementaire etait suffisante pour le voyage diurne en question," et qu'ainsi "la faute personnelle de la Compagnie Aero-Cargo n'etait pas demontree" 4. Societe Mutuelle d'assurances aeriennes v. Gauvain et al. France, Cour de cassation, lere chambre civile, 4 July 1967. I.C.P. IV, 125 (1967) and II, 15234, note by Chauveau; Gaz. Pat. 19 septembre 1967. Une legon de pilotage ne saurait avoir le caractere d'un transport aerien, et en consequence permettre l'application ]imitative de responsabilite de la loi du 4 mars 1957, puisqu'en montant dans l'appareil l'eleve pilote a seulement en vue la legon qu'il va recevoir. Le vol etant necessite par 1'execution du contrat d'enseignement ne saurait presenter le caractere d'un contrat de transport distinct de l'objectif essentiel du contrat principal. Peu Importe qu'au moment de l'accident reeve ait ]ache commandes de l'appareil, tandis que le moniteur effectuait une demonstration de vol en rase-mottes. 5. Ferrando v. Ae.ro-Club Pierre Trebod Sud-Aviation France, Tribunal de grande instance de la Seine, 8 March 1967. R.F.D.A. 238 (1967). La mere de la victime assigne l'aeroclub en pretendant que l'aeroclub a commis une faute. Le tribunal estime que n'ont commis aucune faute ni le president cornmissaire de vol de l'aeroclub ni le commandant d'aerodrome, en l'espece le contröleur de la navigation aerienne responsable du contröle du circuit d'aerodrome.

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Section VII — Cases — Courts 6. Societe Mutwelle d'assttrances aeriennes et al. v. Thierache France, Cour de cassation, leme Chambre civile, 18 July 1967. I.C.P. IV, 134 (1967). Le bapteme de l'air effectue å titre gratuit constitue un transport gratuit. La responsabilite du transporteur ne peut dont otre recherchee que dans les conditions prevues par l'article 2 de la loi du 2 mars 1957, qui exige la preuve de la faute du transporteur ou de ses preposes. En l'espece, la faute du transporteur et de son prepose est prouvee. 7. Germany (Fed. Rep). Landgericht Freiburg i. Br., 16 November 1965. 15 Z.L.W., 323 (1966). The widow of a flight instructor, member of a flying club who was killed in a glider during take-off, sued the pilot and the operator of the glider. The court held that the former was liable for damages because the disclaimer signed by the deceased as a member of the flying club did not include injury or damage caused by negligence (leichte Fahrlässigkeit), or gross negligence (grobe Fahrlässigkeit). Such a disclaimer is not comparable to an implied renunciation of liability in case of gratuitous transportation. The disclaimer signed by the husband of the plaintiff was a standard declaration signed by every member of the flying club all of whom are exposed to accidents and each of whom may become an injured or injuring party. Moreover, liability was not completely excluded, but was only limited to the amount which is fixed by law and is paid by the insurance company. 8. United States v. Becker USA, United States Court of Appeals, Ninth Circuit, 16 May 1967. 378 F. 2d 319 (1967) . Fatal accident in crash of an airplane used on forest fire reconnaissance flights for a federal department—Agreement with airplane pilot to use his services and aircraft—Compensation paid for services as well as use of aircraft—Federal liability. Held: pilot considered as employee of the Federal Government, and not as independent contractor — Federal Government liable to widow. 9. Lee v. United States USA, United States District Court, Central District of California, 15 December 1966. 10 Avi 17,165; 261 F.Supp. 252 (1966). Death of two servicemen in the crash of aircraft operated by Military Air Transport Service (MATS)—Negligence of Federal Aviation Agency alleged— Applicability of Section 2680 of the Federal Tort Claims Act—Test of whether injuries stemmed from activities involving military relationship between negligent person and claimant. Held: Government liable. 10. Cox v. Northwest Airlines USA, United States Court of Appeals, Seventh Circuit, 16 May 1967. 10 Avi 17,410. (1) Cause of crash wholly unexplained—Air carrier produced evidence of due care—Application of the res ipsa loquitur doctrine. (2) Computation of damages —Loss of future earnings—Loss of inheritance—No reduction made for income tax which the deceased would have paid on his earnings—Value of the estate not discounted to present value—On appeal, remanded with directions to modify computation.

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SUMMARIES OF DECISIONS Flight Path Obstructions—Third parties' duty of care—Unmarked power cable. York v. B.C. Hydro and Power Authority

Canada, Supreme Court, British Columbia, 7 September 1967. 61 W.W.R. 1967. Injuries suffered in aircraft collision with unmarked power cables—Defendant's failure to mark cables as required under Air Regulations—Pilot's failure to familiarize himself with all available information as to known hazards in the area— Held: defendant owed a very high degree of care and was negligent in not marking the cables. Flying Club—see collision, damage to aircraft, fatal accident, insurance. Government Liability—See airports, sonic boom, third party damage. Gratuitous Carriage—definition—liability of pilot.. See also Fatal Accident, Societe Muutelle v. Thierarche. Doyle v. Hamren.

USA, California Court of Appeal, Fifth District, 29 November 1966. 9 Avi 18,384. Trip on private aircraft for arranging joint venture transaction—No fare paid— All riders in airplane interested in the joint venture—Riders considered as passengers not as guests—Pilot responsible for his negligence. IATA conditions of carriage of goods—Validity under Warsaw convention. See "Loss of goods," Germany (Fed. Rep.) Oberlandessgericht Stuttgart, 1D October 1963. insurance—(a) "Assurance individuelle automatique" and liability—Option of beneficiary (1); (b) Conditions of policy—Passenger injured in chartered aircraft.— Licence limiting use of aircraft to flights "under day Visual Flight Rules only" and requiring authorization for international flights (2); Exemption clause—Fatal accident of student pilot of aircraft operated by flying club—Whether accident covered by insurance taken out by club (3); Exemption clause—Fatal accident of member of flying club on board of aircraft operated by club—Accident not covered (4); Exemption clause—Charter flight—Acrobatics—Flying lesson—Club member— Fatal accident of aircraft owner, co-pilot of aircraft (6) (5); (c) Goods shipped by air—Damages covered (6); (d) Sale of policy through vending machine—Whether negligence of insurance company (8) (7). 1. Pigeon v. Lantinoire du Dauphine et al.

France, Tribunal de grande instance de Grenoble, 25 April 1967. R.F.D.A. 353 (1967); R.G.A.E. 195 (1967). Lorsgå une police d'assurance offre un choix entre l'assurance individuelle automatique (avec renonciation å tout recours contre l'assure et l'assureur) et l'assurance normale de responsabilite civile soumise aux conditions de la police, le fait par les parents de la victime d'engager un proces contre le commettant du pilote responsable et son assureur emporte renonciation å reclamer le benefice de l'assurance individuelle automatique. Des tors, sont seules applicables les clauses du contrat d'assurance normale de responsabilite.

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Section VII — Cases — Courts 2. Orion Insurance Co. v. Crone et al. Canada, Supreme Court, 24 January 1967. 60 Dominion Law Reports (2d), 630 (1967); [19671 S.C.R. 157.' Held: An insurance policy indemnifying the insured owner of aircraft against liability to third parties, provided its flights are conducted in accordance with the licences issued to the insured, provides indemnity in respect of a flight during the night in which passengers are injured notwithstanding that the insured's operating certificate permitted flights "under day Visual Flight Rules only" since the qualifying words are not to be read as limiting the licensee's flights but rather as limiting the use of the insured aircraft to periods when the visibility conditions conform to the Rules established for daytime flying. Similarly, the fact that the insured's liability arose during an international flight in respect of which the insured had failed to obtain authorization from the appropriate foreign Government when one of the conditions of the insured's licence was that the licensee was required to obtain such authorization prior to conducting an international flight provides no

defence to the insurer because the breach of such a condition does not mean that the use of the aircraft thereby ceased, in the language of the policy, to be "in accordance with the licenses issued to the insured," such language being merely

synonymous with the phrase "authorized by licences issued to the insured." 3. Societe Mutuelle d'Assurances Alriennes v. Gauvain et al. France. Cour de cessation, lere Chambre civile, 4 July 1967. J.C.P. IV, 125 (1967) and II, 15,234, note by Chauveau; Gaz. Pal., 19 September 1967. La veuve d'un eleve pilote tue au cours d'une leson de pilotage assigne l'aeroclub proprietaire de l'avion, et l'assureur de l'aeroclub. Aux termes de la police d'assurance, "est exclu de la garantie le vol en rase-mottes, sauf les exercices d'ecole accompagnes par le moniteur." La Cour estime que si le vol au cours duquel I'accident a eu lieu etait effectivement un vol en rase-mottes, cette demonstration pouvait avoir un but instructif ou recreatif et qu'il s'agissait d'un exercice d'ecole fait par un moniteur å l'intention de son eleve. Dans ces conditions le vol n'etait

pas exclu du benefice de la police d'assurance. 4. Michel-Kubik v. Mutuelle Generale Francaise Accidents. France, Cour de Grenoble, 8 February 1967. R.G.A.E. 60 (1967), note by Garapon; R.F.D.A. 84 (1967), note by Garapon; analysis and note by E. du Pontavice, Rev. Trim. Dr. Comm., 607 (1967). Lorsqu'une police d'assurance individuelle accidents n'accorde expressement la garantie pour les risques de mort, etc., en cas de transport aerien que si celui-ci a lieu å bord d'un avion de societes de transports aerien agreees pour les transports publics de personnes et qu'il est, en outre, precise dans cette police que la garantie est exclue pour les accidents causes par la "pratique de l'aviation," doit gitre deboutee de sa demande en paiement d'une indemnite d'assurance, la veuve de la victime d'un accident survenu å un avion de tourisme appartenant å un aeroclub et pilote par un de ses membres. 5. Escudier v. Compagnie d'Assurances "La France." France, Tribunal de grande instance d'Aix-en-Provence, 17 March 1967. R.G.A.E. 277 (1967), note by Lacombe. La veuve du proprietaire d'un avion, tue en vol, intente un proces contre la

compagnie d'assurances aupres de laquelle s'etait assure son marl, afin de perce• Summary reproduced from the Dominion Law Report, loc. eft.

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SUMMARIES OF DECISIONS voir l'indemnite prevue au contrat. Le tribunal pose tout d'abord quit incombe å !'assure et å son ayant droit de prouver que l'appareil etait pilote par une personne ayant un brevet de pilote valable. L'appareil titant å double commande, le tribunal a considers que l'appareil titant soumis, au moment de !'accident, a un double pilotage concomitant et que l'un des deux pilotes titant muni d'un brevet regulier, !'accident rentrait dans le cadre de la police. Mais la demanderesse a ete deboutee parce qu'une clause de la police, imprimee en caracteres gras, excluait les accidents imputables a une manoeuvre acrobatique. 6. Tanneries de Lutet v. Air-France et al. France, Cour de Paris, 16 November 1966. R.G.A.E. 380 (1966), note by M. de Juglart; R.F.D.A. 70 (1967); analysis and note by E. du Pontavice, Rev. Trim. Dr. Comm., 273, 608 (1967). La Cour constate que !'assurance de marchandises contractee par un vendeur C.A.F. est une assurance de choses et non pas une assurance de responsabilite au profit du vendeur. Donc seuls sont assures les risques du transport et, notamment la perte d'un colis. En ce qui concern les avaries, il faut distinguer entre celles resultant d'un retard imputable au transporteur et celles resultant d'un retard provenant de l'insuffisance des documents soumis au transporteur pour obtenir la livraison. Seules les premieres constituent un risque de transport et sont å la charge par l'assureur. 7. Galanis v. Mercury International Insurance Underwriters. USA, California Court of Appeal, First District, 12 January 1967. 10 Avi 17,114. Sale of flight insurance by automatic vending machine—Crash caused by sabotage—Duty of the insurer—Failure to screen and interview prospective purchaser and to investigate his financial condition does not amount to negligence of Insurance Company. Judicial review of administrative decisions—See Chapter 7, United States, B., Court Actions. Personal injury—(a) Extent of compensation—Annuity or lump suns (1); (b) nervous shock considered physical injury (2). 1. Germany (Fed. Rep.) Oberlandesgericht München, 15 October 1965. 15 Z.L.W. 157 (1966). Plaintiff suffered serious burns in the crash of a US military aircraft. In an arbitration proceeding he had been awarded DM 15.000 for physical injuries and pain, as well as a monthly annuity for increased expenditures. Dissatisfied with the award, the plaintiff claimed a reasonable increase of the lump sum and of the annuity. The lower court (Landgericht) awarded him DM 10.017.50, dismissing all other claims. On appeal by the plaintiff, the Oberlandesgericht held: that (1) the courts are free to award compensation in the form of a fixed amount (lump sum) and/or an annuity and (2) that in the instant case, it was appropriate to award a lump sum because the extent of future sufferings could be established at the time the compensation was awarded and, in any event, unforeseen future aggravation of moral or physical suffering would entitle the plaintiff to a new suit in court. As to the quantum of damages, the appellate court held: that the main criteria to be taken into consideration are the intensity, extent, and duration of the suffering; the fact that the claim was based on Section 53, Subsection 3 of the Air

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Section VII — Cases — Courts Navigation Act, which provides for strict liability, did not justify any increase of the idemnity on account of negligence of the defendant. 2. Vanoni v. Western Airlines USA, California Court of Appeal, First District, 18 January 1967. 10 Avi 17,188; CCH Negligence Insurance Law Reports 1191 (1967); Insurance Law Journal, 533, p. 380. (June 1967). Reversing lower Court, appeal Court held: that nervous shock amounts to physical injury. Sonic Boom—Liability of owner (operator) of aircraft (1, 2, 3, 4, and 5); quantum of damages (I and 4). I. Teyssier v. Societe Generale Aeronautique Marcel Dassault et Etat Francais France, Cour d'appel de Bordeaux, 7 December 1966. D. 239 (1967), note by Combaldieu; R.F.D.A. 19 (1967). Recueil General des Lois 361 (1967), comments by Besson; analysis and note by E. du Pontavice, Rev. Trim. Dr. Comm. 274, 608, 609 (1967); Rev. Trim. Dr. Civil 648 (1967), note by Durry. Le passage d'avions a vitesse supersonique ayant provoque le bris d'une verrii re dans un garage, la Cour condamne le proprietaire des avions. Le constructeur proprietaire de ces appareils, pilotel par ses pre'poses et sans participation aucune des agents de ]'Etat, acheteur, qui n'en avait pas encore effectu6 la reception, est responsable entierement du dommage cause subi aux constructions au sol. 2. Richon v. Agent Judiciaire du Treror France, Tribunal de grande instance d'Aix-en-Provence, 21 April 1967. R.G.A.E. 282 (1967) . L'extension proche ii l'aviation commerciale du caractere supersonique jusque-la reserve ii l'aviation militaire ne pourra que multiplier les faits dommageables dont la justice ne peut se delinteresser ou qu'elle ne peut accepter au pretexte commode de "rangon du progress' Le principe de la reparation se trouve inscrit dans un texte legal a ]'article 36 du Code de l'Aviation civile et commerciale etendu par son article 2 a l'aviation militaire. Ce texte n'admet comme cause de reduction dans la reparation du prejudice que la faute de la victime, en fait, dans les cas que la pratique a pu fournir, la vetuste de la chose endommagee. En l'espece, le tribunal nomme un expert pour savoir si la fissuration d'une cuve en ciment contenant du vin est causee par le passage repete d'avions militaires supersoniques. 3. Bourdon v. Etat Francois France, Tribunal de grande instance de Bressuire, 17 October 1967. D. 667 (1967). La victime de dommages causes par des "bangs" supersoniques a la charge de la preuve de trois elements: la re'alite de l'acte dommageable invoque, le lien de causalite entre celui-ci, et le dommage et la consistance du prejudice allegue. Une telle preuve est rapportee lorsqu'il est etabli par un prutes-verbal de gendarmerie qu'un "bang" particulii rement violent a ete ressenti dans la ville, que les temoins ont confirme la realite d'un eboutement dans la demi-heure qui a suivi et le bon

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SUMMARIES OF DECISIONS etat des murs ruins. C'est en vain que l'Etat pretendrait que sa responsabilite ne peut eire, par elimination, qu'un avion de i'O.T.A.N. et que la Convention de Londres du 19 juin 1951 dolt recevoir application. Note: Before deciding on the merits of the case, the court ordered an inquiry either as to identity of the aircraft or on the "casual relationship" between the sonic boom and the actual damage in the following cases: Cours d'Appel de Pau, 17 February 1967; Tribunal de Montargis, 28 November 1966; Tribunal de grande instance de Bordeaux, 19 December 1966; Tribunal de Carcassonne, 14 March 1967; analyzed by Edmond Ch. Kahn, Quelques remarques au sujet des "bangs" supersoniques, Gaz.Pal., 8 August 1967. Also Tribunal de Bezier, 3 October 1966, referred to by Tribunal de grande instance d'Aix-en-Provence, 21 April 1967. 4. AQaire Marty France, Tribunal de Carcassonne, 8 November 1966. R.G.A.E. 284 (1967); cite par tribunal de grande instance d'Aix-en-Provence, 21 April 1967, R.G.A.E. 282, 284 (1967). Le proprietaire d'un båtiment agricole dont l'effondrement a suivi, comme il a ete constate par une enquête de gendarmerie etablie dans la semaine, un violent "bang" supersonique, a ete indemnise, sauf abattement de 69 pour cent pour vetuste de tette toiture. 5. Bennett v. United States USA, United States District Court, Western District of Oklahoma, 20 August 1967. 10 Avi 17,410. Damage to property caused by sonic boom—Military aircraft flying navigable airspace—No direct encroachment on property—Held: no right to compensation since no taking of property involved. Third Party Damages—(a) Damage caused by government aircraft—Liability of government (1); (b) Fault liability or absolute liability (2). 1. Germany (Fed. Rep.), Landgericht Kiel, 1 November 1963. 13 Z.L.W. 222 (1964). Plaintiff was a tenant of an apartment in a building which had been damaged as a result of the crash of an aircraft of the German Armed Forces. After she had moved with her daughters to a hotel the military authorities acting for the Federal Government agreed to pay hotel bills until the end of September 1962, but refused to pay any accommodation for her after that date. On 6 November 1962, the plaintiff had moved with her children into a camp for emergency cases and sued the Federal Republic of Germany for the payment of DM 850.80. The defendant's appeal against the decision of the Landgericht granting that amount was dismissed. Held: not only the owner but also the person having possession, viz the tenant, is a "person suffering damage" within the meaning of article 35 of the Air Navigation Act. 2. Crist v. Civil Air Patrol USA, New York Supreme Court, Naussau County, 29 March 1967. 10 A vi 17,184. Damage to persons and property on the ground due to airplane crash—No trespass. Held: No absolute liability without regard to fault. 243

Section VII — Cases — Courts Wilful Misconduct and Equivalent Fault—Meaning of "Faule Inexcusable" (1, 2, 3, and 4). 1. Kerdranvat v. Belliard et al. France, Cour d'appel de Rennes, 5 January 1967. R.F.D.A. 222 (1967). La faute inexcusable, au sens de la loi du 2 mars 1957, est une raute deliberee qui implique la conscience de la possibilite de dommage et son acceptation temeraire sans raison valable, l'obstination å affronter un risque dont on est prevenu, l'obstination dans l'erreur. En l'espece, le comportement du pilote, meme s'il a ete imprudent, ne constitue pas une faute inexcusable. 2. Compagnie La Preservatrice v. Aigle Azur Extreme-Orient France, Cour d'appel d'Orleans, 8 November 1966. R.F.D.A. 226 (1967). S'il est vrai que le freteur d'un avion est responsable des lautes de vol cornmises par l'equipage de l'appareil demeure sous sa direction, le dbfaut de pesee de la cargaison n'est imputable qu'å l'affrbteur; en consequence, le fait pour le chef de bord de n'avoir pas contröle la sincerite du poids figurant au manifeste ne denote chez son auteur aucune legerete et ne constitue pas une raute d'une gravite exceptionnelle caracterisant la faute inexcusable. 3. Gilmore v. Air France France, Tribunal de grande instance de la Seine, 25 November 1966; R.F.D.A. 88 (1967); analysis and comment by E. du Pontavice, Rev. Trim. Dr. Comm. 614 (1967). 11 etait allegue que l'accident au decollage etait dåå la faute inexcusable d'un membre de l'equipage (le navigateur) qui, s'etant apercu que l'envol ne se faisait pas normalement et allé voir ce qui se passait, avait ete projete, par les secousses dues ii l'arrachement du train d'atterrissage, sur les commandes de poussee, interrompant ainsi brutalement le freinage des inverseurs de poussee. Aux dires de la Cour, la faute ainsi commise par le navigateur qui n'avait aucun role å jouer au moment du decollage, n'a pas revetu le caractere de la faute inexcusable car il apparait que le navigateur n'ait eu conscience que son comportement pouvait en quoi que ce soit provoquer un accident ou en aggraver les consequences et ah delibrement et temerairement accepte ce risque. 4. Cartier v. U.T.A. et Compagnie d'assurance "La Reunion Francaise" France, Tribunal de grande instance de la Seine, 17 March 1967. R.G.A.E. 174 (1967; note by P. de la Pradelle; R.F.D.A. 350 (1967), note by Georgiades; J.C.P. 1526 (1967), note by M. de Juelart and E. du Pontavice; comment by E. du Pontavice, Rev. Trim. Dr. Comm. 611 (1967). Le tribunal a estime que le pilote avait commis une raute inexcusable, de nature å starter la limitation de responsabilite edictee par la Convention de Varsovie.

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Chapter 15

Courts Extracts from decisions

DECISIONS ON INTERNATIONAL CONVENTIONS WARSAW CONVENTION

Applicability—Military personnel carried on civil aircraft chartered by military authority—Document of carriage—Passenger ticket—Effect of late delivery. Mertens v. Flying Tiger Line USA, United States Court of Appeals, Second Circuit, 16 February 1965. 9 Avi 17,475. An action was commenced in the Southern District of New York to recover damages resulting from a death caused by an airplane accident in Japan. The owner and operator of the airplane, a Delaware corporation doing business in New York, Flying Tiger Line, Inc., was served in New York and made defendant. Jurisdiction was based on diversity of citizenship, 28 U.S.C. § 1332. At the outset we are faced with a question whether the Warsaw Convention, 49 Stat. 3000, is applicable. There is no doubt that the airflight in question was "international." The plane departed from Travis Air Force Base, San Francisco, California and the point of destination was Tachikawa Air Force Base, Tokyo, Japan, and both Japan and the United States are parties to the Convention. Instead, doubts as to the applicability of the Convention arise from the fact that when President Franklin D. Roosevelt, with the advice and consent of the Senate, adhered to the Warsaw Convention, he did so subject to the reservation, provided for in Additional Protocol, 49 Stat. 3025, that the Warsaw Convention shall not apply to international transportation that may be "performed by the United States," id. at 3013. It is urged that because defendant's plane was regularly and in this instance chartered by the United States for the transportation of military cargo and personnel to military destinations this international transportation was "performed by the United States," thereby making the Convention inapplicable. We are of the opinion, however, that the transportation was performed by the Flying Tiger Line, the owner and operator of the aircraft, and that it was performed for the Unified States, not by the United States. The determination that the Warsaw Convention is applicable is not the end of our problems. The significance of this fact remains to be decided. The most controverted issues in this litigation involve the effect of the Convention on plaintiffs' choice of forum (Article 28(1)) and the limitation on defendant's liability (Article 3(2), 22(1) and 25). Defendant argues that Article 28(I) establishes four "places" within the territory of a High Contracting Party where an action for damages can be brought, and that a court located in another "place" within the territory of a High Contracting Party is without subject matter jurisdiction to maintain an action arising out of an airflight covered by the Convention, notwithstanding the internal jurisdictional laws. Defendant moved to dismiss for lack of subject matter jurisdiction on the

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Section VII — Cases —Courts ground that the District Court for the Southern District of New York was not located in a "place" that satisfied the criteria of Article 28(1). The principal place of business of the carrier was Burbank, California; the alleged contract of transportation was made at Travis Air Force Base at San Francisco, California; the place of destination was a point in Japan; and the domicile of the carrier was claimed to be the state of incorporation, Delaware. However, we read Article 28 (1) quite differently. The "places" specified refer to the High Contracting Parties, not to areas within a particular High Contracting Party. An action may be brought at the option of the plaintiff, in the territory of a High Contracting Party, if the domicile of the carrier, the principal place of business of the carrier, the place of business at which the contract was made, or the place of destination is within that country. Plaintiff's choice of forum within that country is governed by the internal law, with all its intricacies and complexities, not by the Warsaw Convention. The basic unit of international law is the nation-state and it is fair to assume, absent clear indications to the contrary, that Article 28(1), was written with reference to nation-states, not to areas and subdivisions of nation-states- The minutes of negotiations surrounding the drafting of the Treaty do not reveal the slightest concern with the problems relating to choice of forum within a nation-state, and in fact that discussion on Article 28(1) contains some indications that the drafters merely attempted to control choice of forum at the level of nation-states. An analysis of the text leads us to the same conclusion. Under our interpretation the plaintiff's choice of forum is restricted to one of the High Contracting Parties and it is further restricted to a High Contracting Party that is one of the enumerated places, thereby disqualifying, for example, the forums in the High Contracting Party where the accident fortuitously occurred, see Calkins supra, p. 231, or those in the High Contracting Party where the passenger was domiciled, or those in other High Contracting Parties that had absolutely no contact with the flight, carrier, or passenger. Under defendant's interpretation it would be difficult to determine the geographical bounds of the "places" referred to: would they be cities, countries, states, judicial districts, provinces, cantons, or regions? On the other hand, if the enumerated places referred to High Contracting Parties the "places" referred to can be given a more stable and uniform geographical definition—the territory of the High Contracting Parties, a concept that is introduced in. Article 1 of the Convention. The United States certainly qualifies as one of the "places" enumerated in Article 28(1) and that is sufficient basis for denying defendant's motion to dismiss for lack of subject matter jurisdiction; the domicile of the carrier, its principal place of business, and its place of business where the contract was made are all within the United States. Plaintiffs' primary concern was to avoid the limitation of damages imposed by Article 22 of the Convention. Plaintiffs argued that the carrier was precluded from availing itself of the Convention's limitation on liability because, first, the accident was caused by the "wilful misconduct" of the carrier (Article 25), secondly, the passenger ticket was never delivered to decedent (Article 3(2) ), and thirdly, even if the ticket was in fact delivered to decedent, it was never adequately delivered to him as required by Article 3(2). The jury decided that plaintiffs had failed to prove that there was "wilful misconduct" on the part of the carrier and that plaintiffs had failed to prove that no ticket was ever delivered to the decedent. The damage award was therefore confined to the limitation of the Warsaw Convention. We are of the opinion, however, that as a matter of law the delivery of the ticket was not adequate and that the limitation on damages of the Convention is inapplicable.

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EXTRACTS FROM DECISIONS We read Article 3(2) to require that the ticket be delivered to the passenger in such a manner as to afford him a reasonable opportunity to take measures to protect himself against the limitation of liability. Such self-protective measures, for example, could consist of deciding not to take the flight, entering a special contract with the carrier, or taking out additional insurance for the flight. The Convention specifically provides that "the carrier and passenger may agree to a higher limit of liability" (Article 22(1)) and there would be little reason to make this provision, to require that the ticket state that the liability of the carrier is limited (Article 3(1)(c)), and to require that such a ticket be delivered to the passenger unless the Convention also required that the ticket be delivered in such circumstances as to afford the passenger a reasonable opportunity to take these self-protective measures. The delivery requirement of Article 3(2) would make little sense if it could be satisfied by delivering the ticket to the passenger when the aircraft was several thousand feet in the air. The specific language of Article 3(2), making the limitation on liability unavailable "if the carrier accepts a passenger without a passenger ticket having been delivered," lends substantial support to our position. Whether the ticket was delivered to the passenger in such a manner as to afford him a reasonable opportunity to take self-protective measures depends in each case on the particular factual circumstances. It is a test that is to be applied by the jury on the evidence before it. We are of the opinion, however, that a jury could not have reasonably found that the delivery of the ticket to the decedent, Lieutenant Mertens, was adequate and we therefore hold as a matter of law that the delivery was inadequate and that the limitation of liability of the Warsaw Convention is inapplicable. The ticket dispatcher testified that the ticket was delivered to Lieutenant Mertens only after he had boarded the plane; that the material Lieutenant Mertens was accompanying under military orders was already loaded on the plane; and that, at the time of delivery, the aircraft was parked on the ramp about ready to take off. We also base our conclusion on the fact that presumably Lieutenant Mertens would have disobeyed orders if he left the material unaccompanied by disembarking after receiving the ticket to, for example, obtain flight insurance; and that the statement concerning the limitation of liability was printed in such a manner as to virtually be both unnoticeable and unreadable, especially in an aircraft about to take off. Under all these circumstances it could not be said that Lieutenant Mertens had a reasonable opportunity to take any measures to protect himself against the limitation of liability, regardless of the fact that the measures available to him might have been circumscribed because he was a military courier. Nothing in this opinion should be interpreted as necessarily implying that because the limitation of damages of the Convention is inapplicable, there can be no limitation upon the damages plaintiffs may be entitled to. Conceivably a concerned jurisdiction might, quite independently of the Convention, impose a limitation on the amount of damages recoverable for a wrongful death; and then the question would have to be faced whether the limitation on damages by the Convention is the exclusive limitation on damages for death caused by the crash of an aircraft during a flight covered by the Convention. Jurisdiction—Meaning of "Place of business through which the contract has been made„ Eck v. United Arab Airlines USA, United States Court of Appeals, Second Circuit, 13 May 1966. 9 Avi 18,146. The appellant was a member of a group that flew from Los Angeles to Europe on February 23, 1962 on a charter flight operated for the Far West Ski Association

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Section VII — Cases — Courts by Scandinavian Airlines System (SAS). The contract of carriage called for the group to return to Los Angeles on or about March 26, 1962. All arrangements for this SAS-operated, round-trip flight, were made by the ski association. Appellant apparently decided that she would take full advantage of her presence in Europe during February and March 1962, for, without the assistance of the ski association, she planned a side trip to Southern Europe and the Near East. Before departing for Europe on the charter flight, appellant purchased through the Oakland, California office of SAS a ticket for her separate trip, which named Zurich as both the place of departure and the place of destination. This ticket listed as agreed stopping places the cities of Vienna, Istanbul, Athens, Beirut, Jerusalem, Cairo, Rome, and Naples. Several different airlines were to provide the. transportation specified in the tickets; only the Jerusalem to Cairo portion of the transportation was to be provided by UAA. As noted earlier, during the Jerusalem to Cairo leg of the Zurich to Zurich flight, UAA's airplane carrying appellant crashed near Wadi Haifa and appellant allegedly suffered serious injuries due to the negligence of UAA. UAA had offices in the United States located at 720 Fifth Avenue in New York City and at 510 W. 6th Street in Los Angeles, but neither was involved in any direct way with the sale of the ticket to appellant. These offices primarily existed and continue to exist in order to service the needs of large metropolitan areas and supervise the promotional activity ... . In a case like that presently before us a court must decide in limine whether the Warsaw Convention is applicable .... No one disputes that appellant's travel was "international transportation" as defined in Article 1(2). And this is sufficient to invoke the Convention. Application of the provisions of the Warsaw Convention means in the first instance that the present suit can be maintained only in one of the four forums enumerated in Article 28(1), an article that restricts the forums in which damage actions may be brought in order to foreclose the possibility of suit in the courts of a nation that has no substantial connection with an accident, or in courts that lack advanced judicial procedures .... The United States does not qualify as a "territory" in which this suit may be maintained under three of Article 28(1)'s four provisions enumerating permissible forums. UAA is domiciled in Egypt and its principal place of business is also in that country. The United States was not the "place of destination" stated in appellant's ticket, and was not mentioned therein. Therefore, even though the United States is a "High Contracting Party," this suit is maintainable in the United States if, but only if, we can conclude that in the United States UAA "has a place of business through which the contract [of carriage between appellant and UAA] has been made." The thrust of most of UAA's arguments advanced to support its motion to dismiss is that the third provision of Article 28(1), from which the foregoing language is quoted, cannot justify the maintenance of this suit in the United States because the contract between appellant and UAA was not made "through" one of UAA's places of business in the United States ... [An] appellee's final and most substantial claim is that the complaint was properly dismissed because venue was improper under Article 28 (1) of the Warsaw Convention. This claim is bottomed on the inapplicability of three of Article 28(1)'s four provisions enumerating forums in which damage actions subject to the Warsaw Convention must be maintained, and on UAA's contention that the third of these provisions, which permits suit to be mainained in a territory where UAA "has a place of business through which the contract has been made," does not place venue in the United States because the contract between appellant and UAA was made through the Oakland office of SAS and directly confirmed by UAA's Cairo office. The court below dismissed the action on this

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ground, stating that this third provision in Article 28(1) was "clear in its meaning and that to permit a suit by this plaintiff in this district, however attractive that im.y be. would read a meaning into the treaty not originally intended." 241 F. Supp. at 808. We disagree. The problem of interpretation posed by this case should not have been resolved by a mechanical application of the third provision's language and the easy assertion that a contrary result would conflict with unarticulated notions about the original intent of the Convention's framers. A court faced with this problem of interpretation, or another problem like it, can well begin with an inquiry into the purpose of the provision that requires interpretation .... Other considerations, such as the court's sense of the conditions that existed when the language of the provision was adopted, its awareness of the mischief the provision was meant to remedy, and the legislative history available to it, are also relevant as the court attempts to discern and articulate the provision's purpose. The inquiry may lead the court to conclude that the provision's language accurately reflects its purpose; in such a situation the court is most faithful to the purpose if the language is interpreted literally. Conversely, the inquiry may lead the court to conclude that the language of the provision only imperfectly manifests its purpose, or that when the words were first chosen the language accurately reflected the provision's purpose but that today the same words imperfectly reflect this purpose because conditions have changed in the area to which the words of the provision refer ... . We first turn to consider the conditions that existed when Article 28(1)'s third provision was conceived. The provision was drafted in 1926, adopted in 1929, and adhered to by the United States in 1934. Commercial international air travel, which began in Europe no earlier than 1919 and in the United States in 1927, was in its infancy during this period. Some informal interline arrangements enabling potential passengers to purchase tickets for air transportation on one airline not actually performing the transportation developed during the 1920's. But such interline arrangements were then by no means as ubiquitous in the commercial international air transportation industry as they are today. It is against this factual background that the purpose of Article 28(1)'s third provision is best elaborated Article 28(1)'s third provision permits a passenger injured in international air transportation to bring a damage action against the airline transporting the passenger at the time of the accident in the courts of a country which is a High Contracting Party if the airline "has a place of business" in that country "through which the contract has been made." This provision clearly manifests the framers' intention to permit, at least in some cases, the maintenance of suit in the courts of the country where the ticket was purchased. It is equally clear that another purpose of this provision is to prevent the maintenance of suit in the courts of the country where the ticket was purchased if the airline has no ticketing and booking office there. The close question is whether this provision prevents the maintenance of suit in the courts of the country where the ticket was purchased, when the airline "has a place of business" in that country at which its tickets are regularly sold, but the passenger had purchased his ticket at the office of another airline or at a travel agency. The argument for concluding that a purpose of this provision is to foreclose suit in the latter rests on two assumptions: first, it assumes the framers recognized that an airline might establish a regular place of business and permit the sale of its tickets in the territory of a High Contracting Party, and yet, by means of interline agreements, arrange for all sales of its tickets to be "made" at the offices of other airlines or travel agencies and further require that all such sales be confirmed abroad; second, the argument assumes that having adverted to this problem, the framers intended to permit airlines to avoid the letter of this provision in this manner. We do not find this argument persuasive. We have not

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Section VII — Cases — Courts been acquainted with any facts tending to establish that the framers of Article 28(1)'s third provision recognized that airlines could avoid the letter of this provision in this fashion. Indeed, interline arrangements among commercial international air carriers were relatively few when the Convention was drafted, and this strongly suggests that the framers did not advert to this problem of avoidance for the obvious reason that airlines could not have successfully avoided the letter of Article 28(1)'s third provision in this fashion at that time. Certainly the framers were not so remarkably prescient that they foresaw future interline arrangements like these implemented by the International Air Transport Association. And there is no indication in the language of this provision or in the relevant legislative history that the framers intended the scope of this provision to vary depending on the ticketing and booking practices of international air carriers. For all of these reasons we have concluded that the argument's first assumption is unfounded. Rather, we think it most probable that the framers of Article 28(1)'s third provision simply did not recognize that airlines would one day be able to avoid the letter of this provision by means of interline arrangements subject to requirements that all ticket sales be confirmed at their home office. The central purpose of Article 28(1)'s third provision was to make venue always proper in the country where the ticket was purchased—assuming it is a High Contracting Party—if, but only if, the defendant has a place of business there. The framers simply did not advert to the problem of avoidance illustrated by the present case .... we conclude that if the framers had recognized this problem they would have wished that an airline that had a place of business in the territory of a High Contracting Party and permitted its tickets to be sold in that country be subject to suit in that country's courts. Our holding is not an untenable gloss upon Article 28(1)'s third provision for a way is clear that permits us to give this language an interpretation that is at once linguistically satisfactory and fully implements the provision's purpose. Undeniably the Oakland, California SAS office acted as UAA's agent for purposes of issuing UAA's ticket and collecting UAA's fare. Even if this ticket sale to appellant was the only instance in which an SAS office had issued a ticket for transportation on a UAA flight, there would still be an agency relationship of sorts between UAA and SAS. However, in the absence of any proof to the contrary, this single instance of an agency relationship between SAS and UAA tends to establish that when this ticket was sold at least a tacit arrangement existed between SAS and UAA whereby each would issue tickets and collect fares for air transportation to be performed by the other. We hold that this agency arrangement between SAS and UAA taken together with the existence of UAA booking offices in this country justified the conclusion that the Oakland SAS office was a UAA "place of business"—" etablissement" in the official French text—"through which the contract had been made." In short, we hold that venue is proper under Article 28(1)'s third provision in the courts of a High Contracting Party when the defendant has a place of business in that country at which it regularly issues tickets even though the injured passenger's ticket is purchased at the office of another airline and confirmed abroad on the ground that the office that issued the ticket to the passenger should be regarded as a "place of business" of the defendant airline "through which the contract has been made." This holding, which imports concepts of agency into the meaning of "place of business" in Article 28(1)'s third provision is not novel. In Berner v. United Airlines, supra, the New York courts clearly recognized that in some cases a foreign airline could be regarded as having a "place of business" in the territory of a High Contracting Party through which the contract was made, even though the airline had no office in that country and, instead, transacted all its

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EXTRACTS FROM DECISIONS business in that country—including the ticket sale involved in that case—through an agent there .... [T]his interpretation of Article 28(1)'s third provision imposes no unanticipated burden on foreign airlines that permit tickets on their flights to be sold by other airlines and travel agencies that do business in the territory of a High Contracting Party. Under the holding of this case Article 28(1)'s third provision will permit suit to be maintained against such airlines in that country only if in addition to authorizing their tickets to be sold there by others they also have a regular ticketing and booking office there. And whether an airline has such an office in any particular High Contracting Party is a matter over which it has complete control. If an airline does choose to establish a regular ticketing and booking office in a country that is a High Contracting Party, venue under Article 28(1)'s third provision will sometimes be proper there even under the superficially literal interpretation of this provision urged by UAA. Our holding simply means that a foreign airline which has done this cannot avoid the reach of this provision if it instructs other airlines and travel agencies that occasionally act as its sales agents in that country to confirm the sales directly with the foreign airline's overseas office. Finally, and most importantly, our holding here is justified because it effectuates the purpose of Article 28(1)'s third provision as we understand it, and it does so without doing violence to the language of this provision. For the foregoing reasons we hold that the Oakland, California, office of SAS was a UAA "place of business" in the territory of the United States "through which the contract was made." Documents of carriage—Passenger ticket—Notice illegible. Lisi v. Alitalia. USA, United States Court of Appeals, Second Circuit, 16 December 1966. 9 Avi 18,375. [Background of case] The question presented on this appeal is whether Alitalia's liability, arising from the crash of one of its planes, is limited by the provisions of the so-called Warsaw Convention. On February 26, 1960, while en route from Rome to New York, Alitalia's airplane crashed shortly after taking off from Shannon, Ireland ... . In answering the complaints, Alitalia pleaded as affirmative defenses those Articles of the Convention which serve to exclude or limit an airline's liability to its passengers ... . [Liability under Warsaw Convention] It is conceded that the flight in question meets the definition of "international transportation" contained in Article 1 of the Convention. Therefore, the provisions of the Convention quite properly govern the present action. See Eck v. United Arab Airlines [9 Avi. 18,1461, 360 F. 2d 804, 808 (2d Cir. 1966). Alitalia's main argument can be stated quite simply. Under Articles 17 and 18 of the Convention, 49 Stat. 3018-19, the carrier is liable for the death or bodily injuries suffered by passengers while on board its aircraft, and for destruction or loss of checked baggage. But, this liability, it says, is limited by Article 22, 49 Stat. 3019 It is clear, however, that under other Articles of the Convention, these limitations on liability are not applicable if the carrier fails to deliver to the passenger a ticket or a check for baggage. These Articles, moreover, provide that the ticket and check shall contain certain specified information, including "a statement that the trans-

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Section VII — Cases — Courts portation is subject to the rules relating to liability established by this convention." Thus, it would appear, that unless the carrier furnishes to the passenger a ticket or baggage check containing the appropriate statement, it may not restrict its liability as circumscribed by the Convention Articles. Alitalia responds, however, by arguing that there is a crucial difference in the language between Articles 3 and 4. While Article 4(4), it says, denies the carrier limited liability "if ... [it] accepts baggage without a baggage check having been delivered, or if the baggage check does not contain the particulars" specified (italics added), the only ground stated in Article 3(2) for denying limited liability for the personal injuries or death of passengers, is the carrier's failure to deliver a ticket. Thus, we are asked to apply the principle expressio unius est exclusio alterius and to hold that failure to give notice on the passenger ticket that the flight is subject to the Convention's rules, will not deprive the carrier of the substantial delimitation of liability for personal injuries or death. All that is required, urges Alitalia, for this right to vest, is that a ticket be delivered to the passengers. [Delivery of ticket] It is apparent that Alitalia relics on a literal reading of the Convention for its assertions. We reject the interpretation it urges upon us. While it is true that the language of the Convention is relevant to our decision, it must not become, as Justice Frankfurter stated it, a "verbal prison." Sullivan v. Behimer, 363 U.S. 335. 358 (1960) (Frankfurter, J., dissenting). The task of ascertaining the meaning of words is difficult, and one certain way of misinterpreting them is by a literal reading. As Learned Hand put it, "words are such temperamental beings that the surest way to lose their essence is to take them at their face." 1942 Address by Judge Hand to the Massachusetts Bar Association. Thus, the language of Article 3 cannot be considered in isolation; rather, it must be viewed in light of the other Articles and the overall purposes of the Convention. See Eck v. United Arab Airlines, supra. This is not the first occasion on which we have been called upon to interpret the language of the Convention's delimiting provisions. For example, in Mertens v. Flying Tiger Line, Inc. [9 Avi. 17,475], 341 F. 2d 851 (2d Cir.), cert. denied, 382 U.S. 816 (1965), we were asked to decide whether presenting a ticket to a passenger after he boarded the carrier's plane, constituted a "delivery" within the meaning of Article 3(2) . . We held, accordingly, that the delivery was inadequate, and the Convention's fixed limits of liability were not available. Later, a similar result was reached by the Ninth Circuit in Warren v. Flying Tiger Line, Inc. [9 Avi. 17,848], 352 F. 2d 494 (1965) .... We believe that the reasoning of the Mertens and Warren decisions is apposite to the case now before us. The Convention's arbitrary limitations on liability— which have been severely and repeatedly criticized—are advantageous to the carrier. But the quid pro quo for this one-sided advantage is delivery to the passenger of a ticket and baggage check which give him notice that on the air trip he is about to take, the amount of recovery to him or his family in the event of a crash, is limited very substantially. Thus the passenger is given the opportunity to purchase additional flight insurance or to take such other steps for his self-protection as he sees fit. This notice to passengers is especially important in this country where the overwhelming number of people who travel by air do so on domestic flights, for which the Convention's restrictions on liability are inapplicable. It is too much to expect these passengers to be sufficiently sophisticated to realize that although they are traveling the same number of miles on an international flight that they have fre-

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EXTRACTS FROM DECISIONS quently traveled domestically, the amount they may recover in the event of an accident is drastically reduced. In short, it is clear from the ratio decidendi of the Mertens and Warren cases, that the inquiry that must be made if the Convention's Articles are to be given meaning, is "whether the ticket was delivered to the passenger in such a manner as to afford him a reasonable opportunity to take selfprotective measures ..." Mertens v. Flying Tiger Line, Inc., supra. [Notice of liability limitation] We proceed to determine, therefore, whether the particular tickets and baggage checks involved in the present case gave the appellees adequate notice. On the front of the ticket and baggage check, in exceedingly small print, was the following message: "Each passenger should carefully examine this ticket, particularly the Conditions on page 4." And, at this point, we note that one of our reasons in Mertens v. Flying Tiger Line, Inc., supra, for precluding the carrier from limiting its liability under the Convention was that the required statement on the ticket "was printed in such a manner as to virtually be unnoticeable and unreadable ...." Judge MacMahon appropriately characterized the "notice" to the passengers in his pithy conclusion as "camouflaged in Lilliputian print in a thicket of `Conditions of Contract' . . . Indeed the exculpatory statements on which defendant relies are virtually invisible. They are ineffectively positioned, diminutively sized, and unemphasized by bold face type, contrasting color, or anything else. The simple truth is that their presence is concealed." 253 F. Supp. at 243, Accord. Warren v. Flying Tiger Line, Inc., supra at 497. But see Seth v. British Overseas Airways Corp. [8 Avi. 18,183], 329 F. 2d 302 (1st Cir.), cert. denied, 379 U. S. 858 (1964). We agree that a jury could not reasonably have found that the tickets and baggage checks gave the passengers the required notice ... . [Dissenting opinion] The majority in their opinion indulge in judicial treaty-making. The language of the treaty (referred to as the Warsaw Convention) is clear. Its provisions are not difficult to comprehend. Its mandates are simply stated. Ascertainment of compliance should, therefore, present no real problem ... . Passenger tickets were delivered to plaintiffs and their decedents on various dates between January 20, 1960 and February 20, 1960. The flight on which they traveled pursuant to their tickets did not depart until February 25, 1960. The ticket contained the particulars specified in Article 3(1) of the Convention, albeit the reference to the provisions of the Convention with respect to death or injury was in exceedingly small type. The majority do not approve of the terms of the treaty and, therefore, by judicial fiat they rewrite it. They think a "one-sided advantage" is being taken of the passenger which must be offset by a judicial requirement that the passenger have notice of the limitation of liability. To support their argument they refer, quite illogically in my opinion, to cases in which the courts have held that there was no real delivery of a ticket to the passenger as contemplated by the treaty. Cases based upon facts tantamount to no effective pre-flight ticket delivery, are scarcely relevant to this case where the passengers had their tickets from 3 to 36 days before departure. Were actual notice to be the requirement, every airline would have to have its agents explain to every passenger the legal effect of the treaty and, in all probability, insist that each passenger be represented by counsel who would certify that he had explained the import of the Convention to his client who, in turn, both understood and agreed to the limitation.

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Section VII — Cases — Courts The original limitations in the Convention may well be outmoded by now. Substantial revisions upward have been made but they have been made, as they should be, by treaty and not by the courts. Judicial predilection for their own views as to limitation of liability should not prevail over the limitations fixed by the legislative and executive branches of Government even though this result is obtained by ostensibly adding to the treaty a requirement of actual understanding notice. Furthermore, for the courts to say that a jury could not reasonably have found that the ticket gave the passenger the required notice is, upon a motion for partial summary judgment, to usurp the time-honored function of the jury. For these reasons, I would reverse.

Operations of embarking or disembarking Passenger injured in courtyard of Customs House at intermediate stop—Convention not applicable. Mache v. Air France. France, Cour d'Appel de Rouen, 12 April 1967.

Gaz. Pal. 13/15 September 1967. Attendu qu'il est constant que le 29 mars 1958, Mache a pris place å Orly dans un avian de la Cie Air France; qu'h sa descente de l'appareil sur !'aerodrome de San Bonet å Palma de Majorque (Espagne) Mache et les autres passagers ont ete pris en charge par deux hötesses de l'air, preposees d'Air France pour titre conduits aux båtiments de l'aerogare od devaient avoir lieu des operations de douane et de police; que l'itineraire normal qui aboutissait å !'entree principale de l'aerodrome

titant impracticable en raison de travaux d'amenagement, il avait ete prevu un itineraire de remplacement lequel contournait le jardin de la douane et empruntait une allee designee par la lettre B du plan etabli par les autorites espagnoles; que la premiere preposee d'Air France qui marchait en tete du premier groupe de passagers n'a pas pris cet itineraire de remplacement mais un raccourci traversant le jardin de la douane (lettre A du meme plan) oh des travaux etaient egalement en cours; que la seconde preposee d'Air France, la de la Guinot Belles, ainsi qu'ellc l'a du reste declare aux autorites espagnoles le 14 mars 1958, au cours d'une procedure penale ouverte devant le Tribunal militaire permanent de Majorque, a suivi ce demier itineraire avec le second groupe de passagers parmi lesquels se trouvait Mache; que celui-ci en traversant le jardin de la douane a pose le pied sur une dalle en ciment arme qui etait en tres mauvais etat; que sous son poids la dalle a bascule entrainant sa chute dans une prise d'eau d'une profondeur de 1,20 m comportant un enchevetrement de tuyaux et de robinets; que Mache s'est ainsi fait de graves blessures avec fractures ouvertes multiples du tibia et du perone fractures du coccyx, lesquelles ont entraine des douleurs lombaires et sciatiques bilaterales avec troubles de la marche necessitant l'intervention d'une tierce personne; Attendu que Tors des debats ayant abouti å la decision deferee, Mache a soutenu, comme il le fait en cause d'appel, que l'accident etait sans rapport avec le risque aerien, qu'il n'etait done pas regi par la Convention de Varsovie mais qu'il relevait uniquement du droit commun des transports terrestres; que la Cie Air France etait done tenue d'une obligation de resultat sur le fondement de l'art. 1147 C. civ , obligation qui la mettait dans la necessite de reparer tous les dommages å lui survenus depuis son entrée sur l'aerodrome d'Orly oü il avait embarque jusqu'h sa sortie de !'aerodrome de San Bonet oü il avail atter ri; qu'une expertise medicale devait gitre ordonnee pour determiner les consequences de ses blessures et qu'il convenait de lui allouer une indemnite provisionnelle de 40 millions d'AF en raison des frais considerables qu'il a ete conduit h engager pour se soignee

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Attendu en droit sur 1'application de la Convention de Varsovie que cc texte dispose dans son art. 17 que le transporteur est responsable du dommage . . . lorsque l'accident qui l'a cause, s'est produit å bord de 1'aeronef ou au cours des operations d'embarquement ou de debarquement; Attendu que la convention ne precisant pas ce qu'iI faut entendre par ces dernieres operations, il convient d'en dovner une definition en se r6f6rant essentiellement au fondement du regime de la responsabilite institue par cette convention; . . Attendu en fait qu'il resulte des renseignements et des documents produits que l'accident litigieux est survenu ainsi qu'il a ete dit, non pas sur l'aire de trafic de l'aerodrome mais å 1'interieur du jardin de la douane separe de cet aire par un retour de façade des båtiments de l'aerogare; qu'il est constant egalement qu'å ce moment-la Mache etait guide et dirige par les preposees d'Air France qui le conduisaient de l'avion dans les båtiments de l'aerogare oil devaient gitre accomplies les formalites de police et de douane; qu'il n'etait done pas libre de choisir son itineraire mais devait å cet tigard obeir aux injonctions des preposees de la Cie Air France; Attendu en consequence que l'accident n'entre pas dans les previsions de la Convention de Varsovie mais releve du droit commun des transports terrestres qui en vertu de la presomption de responsabilite mise a la charge du transporteur, oblige ce dernier å conduire Ie passager sain et sauf a destination et a reparer le cas echeant entierement les dommages dont il pourrait gitre victime dans la mesure oil le contrat de transport lui-meme ne l'exonere pas ou ne limite pas sa responsaAttendu que la clause d'exoneration et de limitation de responsabilite inseree au contrat de transport que le billet de passage stipule au § 2 b sous la rubrique des conditions du contrat de transport "... dans la mesure compatible avec ce qui precede (regles et limitation de responsabilite etablies par la Convention de Varsovie) tout transport effectue et tous autres services rendus par chaque transporteur en vertu de ce billet sont regis par: ... la reglementation et les horaires du transporter ... lesquels sont reputes faire partie integrale du contrat de transport et peuvent gitre consulter dans les bureaux du transporteur et aux a6roports oh il exploite des services reguliers ..."; Attendu que les conditions generales de transports des passagers auxquelles il est ainsi fait allusion disposent elles-memes au § 3 intitule "limitation de responsabilite" que la responsabilite du transporteur aerien n'est engagee qu'en cas de faut prouvee et sous condition qu'aucune faute du passager n'ait contribue au dommage; qu'en toutes circonstances, enfin, la responsabilite du transporteur ... en cas de blessures ... est limitee a 125.000 F or ou å l'equivalent; Attendu que tette clause dont la validite n'est pas contestee s'applique non seulement au transport dans la mesure où celui-ci n'est pas regi par la Convention de Varsovie mais egalement a tous autres services annexes ainsi que tela resulte du libelle meme du billet de passage qui precise a ce sujet ... tout transport "effectue et tous autres services rendus par chaque transporteur en vertu de ce billet sont regis par . . . Attendu sans doute que Mache conteste avoir eu connaissance de cette clause; Mais attendu qu'il resulte des declarations revues par l'huissier de justice Duquesne, que depuis sa fondation, la Cie Air France a toujours fait proveder dans tous les locaux accessibles au public a 1'affichage du reglement fixant les conditions de transport des passagers et des bagages et que le 7 juin 1963 notamment ces conditions etaient affichees å l'Agence d'Air France, avenue des Champs-Elysées a Paris oü l'huissier s'etait rendu pour faire son constat, ii proximite de l'entree et a 2 m du bureau "renseignements et informations";

255

Section VII — Cases — Courts Attendu qu'il convient d'observer egalement que Mache qui est un habitue des transports aeriens d'apres les documents produits, ne pouvait ignorer l'existence de cette clause et savait aussi qu'il est conseille aux passagers qui utilisent comme lui, couramment, les lignes aeriennes, de souscrire une assurance complementaire; Attendu que l'inattention reprochee å Mache, pour les motifs sus-enonces, n'est nullement etablie, tandis que l'imprudence de la preposee d'Air France qui a contrevenu aux instructions de ia compagnie en empruntant un raccourci qu'elle n'avait pas prealablement reconnu est certaine et se trouve en relation directe avec le dommage subi par l'appelantAttendu qu'en definitive, il convient de decider que Mache est en droit de se prevaloir des dispositions de l'art. 1147 C. civ. avec cette precision cependant que Gest å juste titre egalement que la Cie Air France pent invoquer la clause de limitation de responsabilite prevue aux conditions generates du transport des passavers ... .

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Chapter 16

Administrative Authorities I. UNITED KINGDOM AIR TRANSPORT LICENSING BOARD

Representation by a Member of the Public* A complaint was made to us in connection with the hearing in public of a representation to the Air Transport Licensing Board under section 4 of the Civil Aviation (Licensing) Act 1960. Under section 4 of the Act it is the Board's duty to consider (with some excepttions) any representation from any person relating to, or to facilities in connection with, air transport services by means of aircraft registered in the United Kingdom. The Board must report to the Minister of Aviation (now the President of the Board of Trade) upon their conclusions together with such recommendation in connection with those conclusions as the Board may think expedient. Since the complaint related to the Board's advisory functions, we had first to decide whether it would be in order for us to intervene. We concluded that the complaint could be entertained because there is no statutory provision which excludes the Air Transport Licensing Board from the supervision of the Council when the Board are exercising their advisory functions under the Act of 1960. The complainant, who had travelled by air from London to Italy and back on holiday in aircraft operated by a British aircraft operator in conjunction with a travel agency with whom the air travel and hotel bookings had been made, had represented to the Board that he had been seriously inconvenienced by alterations in the type of aircraft used for the flight and in the departure time and duration of the flight. The Board sent a copy of the complainant's representation to the operating company concerned for their comments and explanation. Subsequently the complainant requested the Board to furnish him with a copy of the operator's comments on his representation so that if necessary he could reply to them. The Board refused the complainant's request and informed him that they proposed to consider his representation at a public meeting of the Board. Some days before the date fixed for the hearing of the representation the complainant was told over the telephone by an official of the Board about the procedure that the Board proposed to follow at the hearing. During the hearing of his representation the complainant again requested to be supplied with a copy of the operator's answer to his representation and also to be allowed to see a document (said to be a record of a telephone conversation between the complainant and a person connected with the operating company who was not going to be called as a witness) which had been referred to in the course of the hearing. Both requests were refused by the Board. In the normal course of events we do not seek to concern ourselves with the Board's exercise of their advisory functions. But since the Board had chosen to deal with this representation at a public hearing we considered that, if mistakes * Extract from: The Annual Report of the Council on Tribunals for 1966, London, 1967.

257

Section VII — Cases — Administrative Authorities were made in the conduct of the hearing, we were under a duty to intervene in order to ensure that a more suitable procedure was followed in future. We therefore invited the Board's comments. We did not find them satisfactory. We felt that the complaint was justified. Fairness demands that a person should know in good time before a hearing the case which he will have to meet; and where a tribunal holds a public hearing without letting each side see the material submitted by the other, as the Board did in this case, dissatisfaction and a lack of confidence in the fairness of the tribunal is inevitable. We suggested to the Board that if complaints of this kind were to be avoided the following requirements should be followed if the Board again decided to have a hearing of representations under section 4:—(a) a copy of the representation should be sent to the airline company with a request for a reply and it should be made clear that a copy of the reply will be sent to the person making the representation; (b) both parties should be given copies of all documents submitted to the Board; and (c) the procedure to be followed at the hearing should be intimated to both parties in writing.

II. UNITED STATES OF AMERICA CIVIL AERONAUTICS BOARD

I. Inclusive tour services by non-scheduled USA carriers Preliminary remarks. The President of the European Civil Aviation Conference made the following points to the CAB with respect to the services described above. The Conference noted the common view of the Directors General (of Civil Aviation) that (i) this question had to be treated as a European problem, since Europe as a whole, rather than any given country, is concerned with the transatlantic tourist traffic; and (ii) decisions in the matter would affect not only the relationships of individual European countries with the United States, but also intra-European relationships, In consequence, the Directors General had decided to evolve common economic regulations to deal with intercontinental inclusive tour operations, but with regard to the charter flights of US supplementals considered that it would first be necessary to seek agreement of the CAB on the following points: a) A clear relation to the IATA ITC basic fares, both in respect of the level of tariffs and the conditions of their application. b) The IT charter market should be open to European scheduled, as well as to non-scheduled, carriers. c) European and American air carriers should enjoy equal opportunities in the market for inclusive tours. d) The same expeditious treatment by the CAB of European applications as for US applications.

Statement of policy. At the sixth Session of ECAC (June/July 1967) the U. S. observer made the statement set forth below in reply to the above points. 0 IT = inclusive tours, i.e., tours including hotel accomodation etc., in addition to carriage by air.

258

UNITED STATES OF AMERICA

The questions set forth in the letter dated 25 April 1967 from the President of ECAC to the Chairman of the Civil Aeronautics Board have been receiving careful attention by the United States. However, in view of the broad implication bf these questions, it is most difficult to reply without some indication of the attitudes of European aviation authorities toward inclusive tours by U.S. supplemental carriers. We also recognize that adjustments may be needed in our regulations as we gain more experience. The following brief comments are offered with respect to the four questions posed by the President of ECAC to the CAB Chairman: Question a): (Comment)

The U.S. regulations require that the minimum price of the tour be 110% of the lowest available fare and that the tour meet the conditions of such fare. The Board has permitted the use of the GIT fare as the "lowest available fare" in instances where the tour substantially meets the major conditions of the fare. The question of which conditions of the GIT fare are to be considered governing is being worked out on a case by case basis, and there have been too few applications for transatlantic tour charters to permit complete resolution of this problem.

Question b): (Comment)

No foreign scheduled carrier has requested inclusive tour charter authority. The U.S. CAB would give careful consideration to applications for such authority by foreign scheduled carriers.

Question c) : (Comment)

The Civil Aeronautics Board has granted inclusive tour authority to two European carriers — Caledonian and Sudfiug.

Question d): (Comment)

Any foreign carrier desiring inclusive tour authority must apply for a permit to the CAB which is required by law to follow certain procedural steps. Once the permit is granted there should be no procedural difficulties in obtaining authorization for each inclusive tour flight. In fact, both the Caledonian and Sudfiug permits allow each carrier to perform tour charters to the United States without any specific authorization for each flight.

It might also be noted that the United States favours the continued study of the various types of inclusive tours, and the exchange of relevant information between ECAC and non-ECAC States. We are willing to participate in such an exchange. 2.

Judicial Review of Decisions of the CAB` a)

GRANTING AND RESTRICTING LICENSES

1) United Air Lines, Inc. v. Civil Aeronautics Board, Court of Appeals for the Seventh Circuit; 371 F. 2d 221, 9 Avi 18,379 (1967). Concerning the CAB's orders entered in the Detroit-California Nonstop Service Investigation which removed restrictions on the operating authority of three carriers, the Court held that rigid adherence to criteria of public convenience and necessity for establishing new routes is not required in a restriction-removal case. The CAB, in applying its "factor balancing" approach, has broad discretion to determine the These summaries are extracted from

the Report

259

of the Board to Congress, fiscal year 1967.

Section VII — Cases — Administrative Authorities relative weight the different factors are to be accorded in different types of proceedings. 2) New Castle County Airport Commission v. Civil Aeronautics Board, Court of Appeals for the District of Columbia Circuit, 371 F. 2d 733, 9 Avi 18,317 (1966); certiorari denied to the United States Supreme Court, 387 U.S. 930 (1967). In deleting a separate intermediate point on a carrier's route in accordance with its "use-it-or-lose-it" policy, the Court held that the CAB properly considered that its minimum use test of five passenger emplanements per day is merely a guideline to be considered along with a number of factors. The CAB properly considered that the reduction of subsidy costs and the proximity of alternative airports to the city's passengers were decisive factors in this decertification proceeding. 3) City of Pontiac, et al. v. Civil Aeronautics Board, Court of Appeals for the Sixth Circuit, 361 F. 2d 810, 9 Avi 17,805; 18,203 (1966). In affirming the Board's deletion order on the basis of public interest in accordance with the Board's "use-it-or-lose-it" policy, the Court held that while alleged deficiencies in the carrier's service must be weighed as a factor militating against decertification, the degree of importance to be attached to opposing factors falls within the "spacious domain" of policy matters which are entrusted to the Board's discretion. 4) Braniff Airways, Inc. v. Civil Aeronautics Board, Court of Appeals for the District of Columbia Circuit, 379 F. 2d 453 (1967) . In relation to the CAB's Southern Tier Competative Nonstop Investigation, the Court vacated the Board's order refusing to reconsider the certification of Eastern Airlines for the Dallas-Fort Worth-Miami route. The court felt that although the factors of route integration and facilities were important, the Board's decision "rested on an unfounded view of the underlying relevant facts." The Court said the CAB might consider the issues in connection with "an investigation of broader scope and interrelated routes." b) "INCLUSIVE TOUR" SERVICES 1) American Airlines, Inc., et al. v. Civil Aeronautics Board, Court of Appeals for the District of Columbia Circuit, 365 F. 2d 939, 9 Avi 18,230 (1966). The Court upheld the Board's decision in the Supplemental Air Service Proceeding in which newly certificated supplemental air carriers were permitted to charter aircraft to travel agents for the conduct of "inclusive tours." The Court agreed that the Board's definition of "charter trips in air transportation" as contained in FAA Section 101(33), as amended 49 U.S.C.A. Section 1301(33) included the term "inclusive tours." The certifications were subject to stringent regulation requiring that tour prices be no lower than 110% of the lowest 260

UNITED STATES OF AMERICA

available fare offered by scheduled route carriers, that every tour operation be performed on a round-trip basis, and that every tour be operated by a regulated tour operator. 2) Pan American World Airways, Inc., Trans World Airlines, Inc., and American Airlines, Inc. v. Civil Aeronautics Board, Court of Appeals for the Second Circuit, 380 F. 2d 770 (1967). After finding that the decision of the Court of Appeals for the District of Columbia in American Airlines v. CAB did not bar this Court from deciding the same question, the Court held that the statutory authority to grant certificates for supplemental air transportation, defined as "charter trips," was not intended to authorize the CAB in its Supplemental Air Service Proceeding to grant supplemental air carriers certificates authorizing them to operate "inclusive tours" between points in the United States and foreign points. C) PARTICIPATION IN CAB PROCEEDINGS

City of San Antonio, et al. v. Civil Aeronautics Board, Court of Appeals for the District of Columbia Circuit, 374 F. 2d 326 (1967) . In connection with the CAB's Transpacific Route Case, the CAB's consolidation order, designed to avoid creation of an unduly complex and protracted proceeding by limited consideration of nonstop services to the Pacific to twenty-five mainland cities chosen according to size, traffic-generating capacity, and geographical location, was held to be a proper exercise of the Board's discretion to control the size and scope of its proceedings through the application of reasonable criteria in determining who would be permitted to participate. d) PICKUP AND DELIVERY SERVICES 1. Law Motor Freight, Inc., et al. v. Civil Aeronautics Board, Court of Appeals for the First Circuit, 364 F. 2d 139, 9 Avi 18,237 (1966), certiorari denied to the United States Supreme Court, 387 U.S. 905 (1967) . In upholding the Board's finding that the proposed service met the requirements of Part 222 of the Board's Economic Regulations providing for authorizations to file tariffs for pickup and delivery services beyond a 25-mile zone around a certificated point as "service in connection with ... air transportation," the Court held that the extension of the pickup and delivery zone constituted a valid exercise of the Board's rule-making power and that, accordingly, no prior hearing was required. The Board's decision was based on an analysis of the facts and circumstances surrounding the proposed service, including the interrelationship of the cities involved. 2. In accord: National Motor Freight Ass'n and United Motor Freight, Inc. v. Civil Aeronautics Board, Court of Appeals for the District of Columbia Circuit, 374 F. 2d 266 (1966); certiorari denied to the United States Supreme Court, 387 U.S. 905 (1967). 261

Section VII — Cases — Administrative Authorities e) REDUCED FARES FOR SPECIAL GROUPS Transcontinental Bus System, et al. v. Civil Aeronautics Board, Court of Appeals for the Fifth Circuit, 383 F. 2d 466 (1967), and National Trailways Bus System v. Civil Aeronautics Board, Court of Appeals for the Fifth Circuit, 418 SW 2d 391 (1967) . These cases involved the validity of military standby fares, youth fares, and young adult fares which involved reductions of 33% to 50% for curtailed services to these groups. The Court sustained the Board's dismissal of the complaints against the validity of the military standby tariffs, but remanded the case to the CAB for further consideration with respect to the youth and young adult fares.

262

Section VIII Bibliography

Chapter 17

Bibliography 1966-1967* 1. Accident Investigation and Aviation Safety "M.I." L'efficacia probatoria dell'inchiesta sui sinistri aviatori (nota a sent. Trib. Roma, 18 maggio 1963), 11 Diritto Aereo 52 (1967). Safety investigation regulations: Part 320 — Rules pertaining to aircraft accidents, incidents, overdue aircraft and safety investigations, J.A.L.C. 438 (1966). Survey of research projects in the field of aviation safety (1966 Annual Supplement). Ithaca, N.Y.: Daniel and Florence Aviation Safety Center, Cornell University. 2. Aircraft: Legal Status and Registration; See also Crimes Committed on board aircraft ARCHINARD, A. Les aeronefs suisses et les concepts de partie integrante et d'accessoire, A.S.D.A. Bull. 46, 3 (1967). a aRowa.ouGH, A. R. Development of legislation for Hovercraft, J. World Trade L. 191 (1967). CHENG, a. Nationality and registration of aircraft — Article 77 of the Chicago Convention, J.A.L.C. 551 (1966). CRENSHAW, D. x. Airplanes in the Admiralty Jurisdiction: a short history, S. Cal. L. Rev. 572 (1966). FRANZOSI, M. L'esenzione dell'aereomobile da sequestro per violazione di brevetti secondo l'art. 27 della convenzione di Chicago, 11 Diritto Aereo 239 (1967). INTERNATIONALE ZIVILLUFTFAHRTORGANISATION (ICAO). Unterausschuss betreffend die Probleme der Staatszugehörigkeit und Eintragung von Luftfahrzeugen, die von internationalen Betriebsstellen eingesetzt werden, Montreal, 4. bis 13 Januar 1967, Z.L.W. 231 (1967). JOHNSON, D. I. and B. F. KENNERLY. Canada's need for a central aircraft registry, McGill L. J. 225 (1966). LØDRUP, P. Hovercraft — fagal eller fisk? Handelshøgskolarn i Gøteborg Skrifter 5 (1967). MOORE, J. W. and A. S. PELAEZ. Admiralty jurisdiction — The sky's the limit, J.A.L.C. 3 (1967) . PRADELLE, DE LA, P. Le statut de l'aviation sanitaire, R.G.A. 261 (1966). Report on the work of the subcommittee on problems of nationality and registration of aircraft operated by international agencies, J.A.L.C. 299 (1967). SCHWENK, W. Die kreditsicherung bei der Beleihung von Luftfahrzeugen, Der Betriebs-Berater 480 (1966). 3. Airlines BEA today: special anniversary survey, 1946-1966, Aeroplane 1 (Supp. 1966). CLEGG, P. Aerolineas Argentina; airline of the month, Aeroplane 4 (1966). . Aeronaves de Mexico, Aeroplane 4 (1966). * This bibliography was kindly provided by Dr. P. Lodrup and is based on the bibliography published in 4 Arkir for Luftrett, 121 (1968).

265

Section VIII — Bibliography Small but smart — The story of APSA, Aerolineas Peruansas, Aeroplane 4 (1966). DAVIES, R. E. G. Air France; airline profile, Flight Int.'I 932 (1966). NANKIN, R. Arkavia (Israel Inland Airlines), Aeroplane 4 (1967). . Japan Airlines; airline of the month, Aeroplane 4 (1966). . Middle East Airlines; airline of the month, Aeroplane and Commercial Aviation News 4 (1966). KOSMAN, H. What's behind the comeback at KLM, Air Transport World 17 (1966). L'Aeroflot: un colosse aux cent activites diverses, Aviation Magazine Int'l 54 (1966). LAKER, F. A. Private enterprise in British air transport, J. Royal Aeronautical Soc. 330 (1966). LUMB. M. East African Airways; airline of the month, Aeroplane 4 (1967) . World Airways: airline of the month, Aeroplane 4 (1967). MAY, D. South African Airways, Flight Int'1 696 (1966). MCDOUGALL, H. Canada's national airline: Air Canada's thirty years of service, Esso Air World 58 (1966). Nepal's airline: the story of the Royal Nepal Airlines Corporation, Esso Air World 142 (1966) . RAY, P. Sudan Airways: airline of the month, Aeroplane 4 (1966). Rebuilding an airline: profile of Deutsche Lufthansa, Interavia 174 (1966). REISS, C. Swissair; von "Fliegenden Kisten" zum Jet, Zurich: Schweizer Verlagshauss, 1966. STROUD, D. M. Aer Lingus — Irish International Airlines, Air Pictorial 208 (1966). World Airline survey, Flight Int'l 592 (1966).

CLEGG, P.

4. Airports and Ground Organizations a)

GENERAL

Analise del traffico aereo commerciale delle 50 principali cittå ali d'Europe, Transporti aerei 67 (1966). DEEM, W. H. and J. S. REED. Airport land needs. Cambridge, Mass.: Arthur D. Little, 1966. GODART, L. Les probli mes economiques des aeroports, R.G.A. 155 (1966). KEAN, A. w. o. Aerodrome operators — Some legal problems, J. Bus. L. 232 (1966). LODIGIANI, G. II regime giuridico degli aereoporti e il diritto internazionale, Il Diritto Aereo 1 (1967). b) STATUTES AND REGULATIONS CONCERNING AIRPORTS BISOGNO, R. La circolazione di veicoli terrestri all'interno

degli aeroporti, Il Diritto Aereo 273 (1967). GRABHERR, E. Gedanken zum beschränkten Bauschutzbereich, Z.L.W. 116 (1966). PORT OF NEW YORK AUTHORITY. Airport requirements and sites to serve the Nov Jersey-New York metropolitan region; a report to the Governors of the State of New York and the State of New Jersey. New York: The Authority, 1966. STOUDEMIRE, J. L. Airport zoning; a growing need in South Carolina, S. Car. L. Rev. 609 (1966). U.S. FEDERAL AVIATION ADMINISTRATION. National Airport Plan, Fiscal Years 1968-1972. Washington: U.S. Government Printing Office, 1967.

266

BIBLIOGRAPHY

1966-1967

C) AIRPORTS AND THEIR NEIGHBOURS

Relative rights and remedies of users and surface proprietors in air space, Wis. Bar Bull. 28 (1966). FLEMING, P. W. Aircraft noise; a taking of private property without just compensation, So. Cal. L. Rev. 593 (1966). JERICHO, E. The United States as an additional defendant in aircraft noise litigation, Ins. Counsel I. 14 (1967). Leasing of air space above public buildings — The public use doctrine and other problems, U. Pitt. L. Rev. 661 (1967). STOEBUCK, W. B. Condemnation by nuisance; the airport cases in retrospect and prospect, Dick. L. Rev. 207 (1967). TONDELL, L. M., JR. Noise litigation at public airports, J.A.L.C. 387 (1966).

CARNAHAN, W. H.

5. Air Transport Economics Analise del traffico aereo commerciale delle 50 principali citta ali d'Europa, Transporti aerei 67 (1966) . ntrrorr, B. Quelques vues prospectives sur l'organisation du transport a6rien en Europe, R.G.A. 286 (1966). HARPER, C. W. The challenge of V/STOL transport, Vertical World 26 (1966). How transport operations are growing, Air Transport World 49 (1966). How jets cut transport costs, Shell Aviation News 22 (1966). Jet operating costs and statistics, Air Transport World 21 (1966). LOCKLIN, D. P. Economics of transportation (6th ed.). Homewood, Ill.: Richard D. Irwin, 1966. MERCHIER, J. Fares for differentiated air services. Paris: Institut du Transport Aerien, 1966. . Financial and non-financial objectives of air transport. Paris: Institut du Transport Aerien, 1966. SACKREY, C. M. Overcapacity in the United States international air transport industry, 1.A.L.C. 24 (1966) . SEALY, K. R. The geography of air transport (rev. ed.). London: Hutchinson, 1966. SLETMO, G. K. International air transport and national interests, Arkiv für luftrett 278 (1966-67). SNOW, J. w. Air freight forwarding: a legal and economic analysis, I.A.L.C. 485 (1966). . Air freight forwarding: a legalized economic analysis, Air Transportation 31 (1967). STRATFORD, A. Air transport economics in the supersonic era. London: Macmillan & Co., 1967. STUDNICKI-GIZBERT, K. W. The regional air carrier's problem; a study. Ottawa: Air Transport Board, 1966. SUMMERS, H. A. c. Trends in short-haul transportation, Canadian Aeronautics and Space 1. 263 (1966). ULSAMER, E. E. The jumbojets — Air travel for everyman? Air Force and Space Digest 66 (1966). u.s. CIVIL AERONAUTICS BOARD. Trends of productivity in the airline industry, 1957-1965. Washington, D.C.: Bureau of Economics, Civil Aeronautics Board, 1966.

267

Section VIII — Bibliography U.S. FEDERAL AVIATION AGENCY. Direct operating and other performance characteristics of transport aircraft in airline service, calendar year 1965. Washington, D.C.: Office of Policy Development, Federal Aviation Agency, 1966. WIESENWASSER, E. Luftfahrtrecht und Luftfahrtpolitik, Grundsätze und Programm, Anstroflug 21 (1966). WOOD, C. C. The place of the helicopter in the metropolitan transport system. New York: Society of Automotive Engineers, 1966. 6. Air Transport Statistics Jet operating costs and statistics, Air Transport World 21 (1966). LESTER, A. M. Global air transport accident statistics, ICAO Bull. 3 (Jan. 1967). U.S. CIVIL AERONAUTICS BOARD. Handbook of airline statistics (1965 ed.). Washington, D.C.: U.S. Government Printing Office, 1966. U.S. FEDERAL AVIATION AGENCY. FAA statistical handbook of aviation 1966. Washington, D.C.: U.S. Government Printing Office, 1966. 7. Airwaybill (air consignment note) GEORGiADES, E. Apercu critique sur la lettre de transport aerien, R.F.D.A. 387 (1966). 8. Aviation Policy KREIPE, w. Augaben und Zeile der deutschen Luftverkehrspolitik, Internationales Archiv für Verkehrswesen 69-73 (1966). FORGER, v. Stand und Entwicklungsmöglichkeit des Luftverkehrs zwischen Europa und Nordamerika, Zeitschrift für Verkehrswissenschaft 222 (1966). ROSSGER, E. and K. B. HUNERMANN, Luftverkehrswirtschaft und Luftverkehrspolitik als Gegenstand von Lehre, Forschung und Dokumentation, Internationales Archiv für Verkehrswesen 80 (1966). SCHMIDT, K.-P. Wie könnte der Gedanke der Europatransversalen und inbesondere der im Rahmen des Luftfahrtbeirats des Herrn Bundesministers für Verkehrentwickelte "Modellflugplan für die Hauptroute I" durch zwischenstaatliche Vereinbarung verwirklicht werden? Z.L.W. 13 (1967). SLETMO, G. K. International air transport and national interests, Arkiv für Luftrest 278 (1967). WATKINS, H. D. CAB plans more innovation in policies, Aviation Week 223 (1967). WORCESTER, R. Roots of British air policy. London: Hodder & Stoughton, 1966. 9. Bilateral Agreements a) GENERAL LEDUC, D. Le Canada et les aeriens internationaux, Commerce 36 (1966) . U.S. STATE DEPARTMENT. United States and Soviet Union sign civil air transport agreement (Statement of Ambassador Llewelynn E. Thompson, 4 November 1966, with accompanying text of agreement and related documents). Washington, D.C.: Dep't State Bull. 791-800, 1966. b) ARBITRATION BRADLEY, M. A. International air cargo services: the Italy-U.S.A. air transport agreement arbitration, McGill L. J. 312 (1966). HEALEY, H. M. Revisions to the Mexico-United States air transport agreement 1965-1970, J.A.L.C. 167 (1966).

268

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1966-1967

INSTITUT DU TRANSPORT AERIEN. International arbitration for the interpretation and

implementation of air transport bi-laterals — The example of arbitration between the U.S. and France, by an IATA group. Paris: The Institute, 1966.

The United States-Italy air transport arbitration: problems of treaty interpretation and enforcement. Am. J. Intl L. 496 (1967). RENTZMANN, W. Analyse af bestemmelserne om fredelig bilaeggelse af retstvister i de af Danmark mellem 1936 og 1965 indgaede luftfartsoverenskomster, Nordisk Tidsskrift für International Ret 63 (1966). Vereinbarung zwischen den Vereinigten Staaten von Amerika and Italien über den Fluglinienverkehr vom 6. Februar 1948, Schiedsgerichtliches Gutachten vom 17. Juli 1965, Z.L.W. 203 (1966). LARSEN, P. B.

10. Cargo

Seattle: University of Washington Graduate School of Business Administration, 1966. GUEST, B. R. The growth of Soviet air cargo, J. Geography 323 (1966). HILDRED, SIR W. Freight rates: riding for a fall, Aeroplane 20 (1967).

BREWER, S. H. Air cargo comes of age.

INTERNATIONAL CIVIL AVIATION ORGANIZATION. Air freight in the Latin American

region. Montreal: ICAO, 1966. Proceedings. Third International Forum

for Air Cargo, Chicago, Ill., May 24-26, 1966. New York: American Institute of Aeronautics and Astronautics, 1966. Regulation of air freight pickup and delivery, Yale L. J. 405 (1966). SLETMO, G. K. Fly og frakt, utvikling og Økonomi, Norges Handelshøyskoles saertrykk-serie 63 (1967). Flyfraktens plass i den fysiske distribusjon, Norges Handelsh¢yskoles saertrykk-serie 65 (1967). Special report — Air Cargo, Air Transport World 29 (1966). 11. Collisions

Draft convention on aerial collisions; some textual criticisms, (1966). MIYAGI, M. "Applicable limits of liability" under Article 8 of the 1964 Draft Convention on Aerial Collisions, J.A.L.C. 195 (1967) .

KELLIHER, T. J.

J.A.L.C. 564

12. Contract of Carriage by Air

(20th ed.) New York: Budd Publications, 1966. Air freight forwarding, a legalized economic analysis, Air Transportation 31 (1967 ). vocr, G. Erwerb von Flugscheinen für Dritte, Z.L.W. 125 (1967).

Air shippers manual, 1966-67 SNOW, J. W.

13. Crew CACOPARDO, c. Lo statu giuridico Il Diritto Aereo 249 (1967).

della gente dell'aria—Evoluzione legislativa,

"M.t." La responsabilitå amministrativa del comandante di aereomobili militari nel caso di sinistro aereo, Il Diritto Aereo 277 (1967). MEYER, A. Territorialer Geltungsbereich der Befugnisse des Luftfahrzeugkommandanten zur Aufrechterhaltung der Sicherheit und Ordnung an Bord (Bordgewalt), Z.L.W. 16, 5 (1967). NAVARRO, M. B. El comandante de aeronave; Condicion y regimen juridico. Madrid: Instituto Francisco de Vitoria, 1966.

269

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The federal bomb hoax hybrid: civil penalty for criminal wrong,

J.A.L.C. 402 (1967). In-flight crime: the international and domestic picture under the Tokyo Convention, Ya. L. Rev. 509 (1967). MEYER, A. Territorialer Geltungsbereich der Befugnisse des Luftfahrzeugkommandanten zur Aufrechterhaltung der Sicherheit und Ordnung an Bord (Bordgewalt), Z.L.W. 5 (1967). RUDOLPH, A. Fluglärm in strafrechtlicher Sicht, Z.L.W. 111 (1966). MENDELSOHN, A. I.

15. Doctrine Los elementos internacionales en eI transporte aereo, Re vista del Instituto de Derecho Cornparado 479 (1966) (includes English summary); also: Il Diritto Aereo 259 (1967). CHAUVEAU, P. Quelques reflexions sur le nouveau code de 1'aviation civile, R.F.D.A. BONNET CORREA, J.

379 (1967). cox, v. Le regime juridique de la navigation aerienne en Yougoslavie, Il Diritto Aereo 37 (1967). CSABAFI, I. The Hungarian air code, J.A.L.C. 457 (1967). "Ds." Norme interne e norme internazionale circa la responsabilita del vettore aereo, Il Diritto Aereo 17 (1967) . DARSOW, H. Rechts-und Verwaltungsvorschriften des Luftrechts in der vierten Wahlperiode des Deutschen Bundestags 1961-1965, Z.L.W. 165 (1967). FULDA, C. H. International aspects of aviation, J.A.L.C. 63 (1967) . KOHN, M. Das Luftrecht in Israel, Z.L.W. 187 (1966). . Privates Luftrecht in Israel, Z.L. W. 135 (1967). LISSITZYN, O. J. International aspects of air transport in American law, J.A.L.C. 86 (1967). MATrE, N. M. Notions de volonte dans le droit aerien-aeronautique Canadien, R.F.D.A. 15 (1967). POURCELET, M. International element in air transport, J.A.L.C. 75 (1967). RINCK, G. Internationale elemente im Lufttransport, Z.L.W. 1 (1966); English translation in I.A.L.C. 102 (1967). SCHLEICHER, R. and F. REYMANN. Das Recht der Luftfahrt (3. neub. und erw. Aufl. von Hans Jurgen Abraham). Vol. 2. Das nationale deutsche Luftrecht und Nachtrag zum ersten Band. Cologne: Carl Haymanns Verlag, 1966. sHAWCROSS and BEAUMONT. On Air Law (3rd ed.). Edited by P. B. Keenan, A. Lester, and P. Martin. London: Butterworth, 1966. Studientagung "Die Luftfracht." Zurich: Schweizerische Vereinigung fur Luft- und Raumrecht, 1966.

16. General Aviation aircraft crash cases, Texas B. J. 161, 198 (1966). Liability arising from gratuitous carriage by air, European Transp. 492 (1966).

DAVIS, T. H. Private

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BIBLIOGRAPHY

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L'application de la loi du 2 mars 1957 aux lerons de pilotage (Note sous arret de la Cour de cassation du 4 juillet 1967), R.F.D.A. 438 (1967). MARTIN, P. Air law and the private pilot, Flight Intl 447 (1966).

GEORGIADES, E.

17. Hire, Charter and Interchange of Aircraft Air charter, Interavia 1334 (1966). ESCALADA, F. v. Le louage et l'affrt tement des aeronefs, R.G.A. 143 (1966). NAUEAU, J. Banalisation des aeronefs, Revue de droit international et de droit compare 25 (1966).

18. History of Aviation and Air Law a) GENERAL

The work of the ICAO Legal Committee from 1947 to 1965. Paris: Institut du Transport Atrien, 1966. BERCHTOLD, W. Zur Entwicklung des schweizerischen Luftverkehrs in den letzten zwanzig Jahren, Internationales Archiv für Verkehrswesen 73 (1966). GLINES, C. v. and W. F. MOSELEY. The DC-3 -The story of a fabulous airplane. Philadelphia: Lippincott, 1966. Jahrbuch der Luft- and Raumfahrt 1966. Mannheim: Sudwestdeutsche Verlagsanstalt, 1966. MCDOUGALL, H. Canada's national airline: Air Canada's thirty years of service Esso Air World 58 (1966). NIBLER, F. Luftverkehr. Frankfurt am Main: Behorden-und Industrieverlag, 1966. BEAUBOIS, H.

Volume and main traffic flows of charter ITs in the EuropeMediterranean area. Paris: Institut du Transport Atrien, 1966. PORCH, H. E. Civil aviation in Comunist China since 1949. Santa Monica, Calif:

PELADAN, R.

Rand Corp., 1966. REISS, C.

Swissair: Von "Fliegenden Kisten" zum Jet. Zurich: Schweizer Verlags-

haus, 1966.

The challenging skies: the colorful story of aviation's most exciting years, 1919-1939. Garden City, N.Y.: Doubleday, 1966. STROUD, J. European transport aircraft since 1910. London: Putnam, 1966. WI-ITNAH, D. R. Safer skyways: federal control of aviation, 1926-1966. Ames, ROSEBERRY, C. R.

Iowa: Iowa State University Press, 1966. b) COUNTRIES

Air transport and transport coordination in Finland, ITA Bull. 871 (1966). Air transport in India, Indian Aviation 337-44 (1966). Civil aviation in Japan, ICAO Bull. 7 (Feb. 1967). Civil aviation in Kenya, ICAO Bull. 16 (Dec. 1966). Civil aviation in Spain, ICAO Bull. 13 (Nov. 1966). Civil aviation in Czechoslovak Socialist Republic, ICAO Bull. 7 (April 1967). Civil aviation in Tunisia, ICAO Bull. 11 (March 1967). DAVIES, R. E. G. Air transport in Argentina, Air Pictorial 368 (1966). Domestic aviation in Sweden, ICAO Bull. 13 (April 1967). ELSTAD, S. A. Sivil luftfart i Sovjetsamveldet, Arkiv für Luftrett 317 (1966-67). GEORGIADES, E. L'application de la loi du 2 mars 1957 aux legons de pilotage (Note sous arret de la Cour de cassation du 4 juillet 1967), R.F.D.A. 438 (1967).

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Section VIII — Bibliography Civil aviation in Australia, ICAO Bull. 35 (Sept. 1966). Saudi Arabia in the jet age, ICAO Buil. 3 (Nov. 1966). SUNDBERG, J. W. F. Recent development in Scandinavian air law, Arkiv für Luftrett 95 (1966-67).

GILLISON, D.

19. Institutions, Associations, etc. Deutsche Vereinigung fur Internationales Recht (Deutsche Landesgruppe der ILA), Sitzung des Ausschusses fur Luft- und Weltraumrecht, Koln, 22. Oktober 1965, Z.L.W. 130 (1966) . Deutsche Vereinigung fur Internationales Recht, Sitzung des Ausschusses fur Luft- und Waltraumrecht, Munchen, 10. Juni 1966, Z.L.W. 304 (1966). PALOSCIA, P. Per una sistemezione degli instituti di tutela della gente dell'aria, 11 Diritto Aereo 123 (1967). 20. Insurance HASSE, K. o. Die Struktur der Luftfahrtversicherung in Frankreich, Versicherungsrecht 123 (1966). PONTAVICE, E. nu. Quelques aspects de l'assurance aerienne, R.G.A. 7 (1967). . Assurance aerienne et conventions internationales, R.G.A. 141 (1967). VERNON, M. D. L'assurance aviation: ses problems actuels, L'Observateur 201 (1968); also L'Argus 320 (1968). 21. International Civil Aviation Organization (ICAO)—See also Unification of Air Law, for work of ICAO Legal Committee. CAB-exemption policy and procedure: Hawaiian inter-island carriers, J.A.L.C. 192 (1967). FRAGALI, M. L'adeguamento dell'ordinamento interno alla convenzione di Chicago sull'aviazione civile, Il Diritto Aereo 105 (1967) . MATEESCO, M. Systeme Chicago — OACI et le droit aerien sovietique, R.F.D.A. 17 (1966). PRADELLE, P. de la. Perspectives d'avenir de I'OACI, R.G.A. 185 (1967). SPAULDING, M. B. What the new department of transportation would mean to the airline industry, J. Air Transp. World 89 (1966). 22. Legislation 6 m kodifieringen av luftprivaträtten, Tidskrift utgiven av Juridiska Foreningen i Finland 15, 185 (1966). CANADA. Department of Transportation, Civil aviation branch. Aeronautics act and air regulations. (3rd ed.) Ottawa: Queen's Printer, 1966. COOPER, D. Russia's air code, Aeroplane 8 (1966). GAIR, H. A. Aviation law today, Albany L. Rev. 189 (1966). GARAPON, H. J. L'aviation civile: ses lois, ses reglements. Paris: Berger-Levrault, 1966. WESTwo0D, H. c. and A. E. BENNETT. A footnote to the legislative history of the Civil Aeronautics Act of 1938 and afterwards, Notre Dame L. Rev. 309 (1967). ZAVISKA, Z. Querschnitt durch die neue tschechoslowakische Luftverkehrsordnung, die Güterbeforderung betreffend, Schweizerisches Archiv für Verkehrswissenschaft und Verkehrspolitik 324 (1966). ANTERE, T.

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23. Liability of Air Traffic Control Services

Government liability; air traffic controllers; duty of care, J.A.L.C. 185 (1967). LARSEN, P. B. Air traffic control: a recommendation for a proof of fault system without a limitation on liability, J.A.L.C. 3 (1966). 24. Liability of Carriers — see also Warsaw Convention

Le droit å indemnisation de la concubine de la victime d'un accident d'aviation (Note sous arret de la Cour de cassation du I8 juillet 1967), R.F.D.A. 442 (1967). HUBER, E. Einige Gedanken zur Beweislast beim Luftvertrag, A.S.D.A. Bull. 43, 3 (1966). MARTIN, P. The liabilities of air carriers, New L. J. 712 (1966). PONTAVICE, E. DU. Dommage au voyageur aerien sur l'aire de traffic d'un aerodrome (note a sent. Cass. fr. 18 gennaio 1966), 11 Diritto Aereo 61 (1967). SAND, P. H. Risk in the air and the myth of fault, I.A.L.C. 594 (1967). STEPHEN, J. E. The adequate award in international aviation accidents, Ins. L. J. 711 (1966). SUHERMAN, E. Transport aerien des bagager å main, R.F.D.A. 293 (1966).

GEORGIADES, E.

SUNDBERG, J. Les elements internationaux dans le transport aerien: quelques as-

pects de la responsabilite pour retard en droit aerien. Uppsala: Swedish National

Reports to the VIIth International Congress of Comparative Law, 1966; also R.F.D.A. 139 (1966). 25. Liability of Operators a)

GENERAL

6 in kodifieringen av luftprivaträtten, Tidskrift utgiven av Juridiske Föreningen i Finland 42 (1967).

ANTERE, T.

A. Considerations sur la conventure des dommages causes par les aeronefs aux tiers å la surface (fin), A.S.D.A. Bull. 42, 1 (1966). BODENSCHATZ, M. Beantwortung des Fragebogens des Luftrechtsausschusses der ILA betreffend: revision des neuen römischen Haftungsabkommens, Z.L.W. 144 (1966). CABRANES, J. A. Limitations of liability in international air law; the Warsaw and Rome Conventions reconsidered, Int'l & Comp. L. Q. 660 (1966). Entschliessung des Ausschusses für Luft- und Weltraumrecht der Deutschen Landesgruppe der International Law Association (ILA) betreffend die Beantwortung des Fragebogens des Luftrechtausschusses der ILA über eine Revision des neuen römischen Haftungsabkommen. Sitzung vom 22. Oktober zu Köln, Z.L.W. 150 (1966)_ LØDRUP, P. Luftfart og ansvar. Johan Grundt Tanum Forlag, Oslo: 1966. SCHWEICKHARDT, A. Zur Frage der Haftung einer Luftverkehrs gesellschaft für Lärmschäden unter Schweizerischem Recht, A.S.D.A. Bull. 44, and 47, 3 (1967). . Zur Frage der Haftung einer Luftverkehrsgesellschaft für Lärmschäden im internationalen Recht, Z.L.W. 218 (1967). Subcommittee on the Rome Convention (1965) report, Z.L. W. 139 (1966).

ARCHINARD,

b)

SONIC BOOM

ARKIN, M. B., G. BURDICK,

and

S. A. JOYNER. Sonic

Okla. L. Rev. 292 (1966).

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Section VIII — Bibliography and R. COMBALDIEU. `Bangs supersoniques" et leurs effets nocifs; recherche et mise en oeuvre de la responsabilite civile, en raison des dommages corporels et materiels occasionnes par ces deflagrations, Recueil Dalloz Sirey 65 (1967). DURRY, G. L'influence du caractere penal d'une faute sur la nature de la responsabilite encourue; Comment d'emontrer qu'on a ete victime du franchissement du mur du son; Avions; La faute inexcusable du pilote, Rev. Trim. Dr. Civ. 798, 805, 813, 822 (1966). EZANNO, Y. J. P. Les consequences soniques de la navigation aerienne en droit frangais, Rev. S.G.A.C. 38 (1967). GEORGIADES, E. Le droit å indemnisation des victimes des "bangs" supersoniques (note sous arret de la Cour d'appel de Pau du 15 fevrier 1967), R.F.D.A. 448 (1967). HERMSEN, R. Wirtschaftliche Aspekte des Uberschallverkehrs, Flugwelt 154 (1967). WEIMER, W. Zur Haftung bei Uberschallschäden durch Flugzeuge, Neue Juridische Wochenschrift 2047 (1966).

CAUSSE, J.

26. Non-Governmental Aviation Oganizations o. International Air Transport Association — Twenty-Second Annual General Meeting, Mexico City, J.A.L.C. 311 (1966). COOPER, L. International Air Transport Association (IATA), 22 Jahreshauptversammlung, Mexiko, 31 Oktober bis 4. November 1966, Z.L.W. 138 (1967). KOFFLER, W. W. IATA: Its legal structure—a critical review, J.A.L.C. 222 (1966). SCHWEICKHARDT, A. International Air Transport Association (IATA), 21 Jahreshauptversammlung, Wien, 25. Oktober 1966, Z.L.W. 22 (1967). BAILEY, E.

27. Right to Fly: National and International Restrictions Specific problems solved by the negotiation of bilateral air agreements, McGill L. J. 303 (1967). BRADLEY, M. A. International air cargo services: The Italy-U.S.A. air transport agreement arbitration, McGill L. J. 312 (1966) . COOPER, J. c. Zonen im Luft-Weltraum, Z.L.W. 101 (1966). DELISI, S. P. Legal and regulatory aspects of coordinated transportation service. Pittsburgh: University of Pittsburgh Graduate School of Business, 1966. DESPOT, M. Suverenitet u prostoru ixnad drzavne teritorije. Beograd: Institut za uporendno pravno, 1966. FRAGALI, M. Regolamento giuridico dell'aviazione e allegati tecnici di Chicago, If Diritto Aereo 159 (1967). Gov, R. La politique de repartition des droits aeriens frangais, R.G.A. 13 (1966). GUTELOT, J. Libertes de l'air et droits commerciaux. Paris: 1966. MCGOLDRICK, J. L. Regulation of service competition in international air travel, Harv. Intl L. J. 78 (1967). STABENOW, W. Die Luftfahrt im Rahmen der europäischen Wirtschafts-integration, Z.L.W. 199 (1967) . . International factors in air transport under the treaty establishing the European Economic Community, J.A.L.C. 117 (1967). The import of the authority to make decision delegated to the EEC Council of Miniatures with regard to sea and air transport (Article 84(2) of the Treaty), European Transp. L. 338 (1966).

AZZIE, R.

274

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Vereinbarung zwischen den Vereinigten Staaten von Amerika und Italien über den Fluglinienverkehr vom 6. Februar 1948, Schiedsgerichtliches Gutachten vom 17. Juli 1965, Z.L.W. 203 (1966). WILLIAM, K. M. The regulation of air transport, Yorkshire Bull. Econ. Soc. Res. 20 (1966). 28. Taxation ICAO's policies on taxation in the field of international air transport. Montreal: ICAO, 1966. Seven per cent investment tax credit; subsidized air carriers section 203(e) of the Internal Revenue Act of 1964, J.A.L.C. 165 (1967). 29. Unification of Air Law a)

GENERAL

H. International Civil Aviation Organization: the Legal Committee, its organization and working methods, J.A.L.C. 94 (1966).

MANKIEWICZ, R.

b)

ICAO

Internationale Zivilluftfahrtorganisation (ICAO), Fachausschuss betreffend die Haftungsgrenzen für Fluggäste, Montreal, 19.-31.1.1967, Z.L.W. 101 (1967). Internationale Zivilluftfahrtorganisation (ICAO) Unterausschuss betreffend die Probleme der Staatszugehörigkeit und Eintragung von Luftfarhzeugen, die von internationalen Betriebsstellen eingestez werden, Montreal, 4. bus 13. Januar 1967., Z.L.W. 231 (1967). Report on the work of the subcommittee on problems of nationality and registration of aircraft operated by international agencies, J.A.L.C. 299 (1967). SCHMIDT-RANTSCH, G. Internationale Zivilluftfahrt-Organisation (ICAO), Sonderkonferenz Montreal, 1:15. Februar 1966, Z.L.W. 195 (1966). Special ICAO meeting on limits for passengers, Montreal, 1-15 February 1966, minutes and documents. Montreal: ICAO, 1967. Subcommittee on the Rome Convention (1965) Report, Z.L.W. 139 (1966). C) IATA

o. International Air Transport Association — the Legal Committee, J.A.L.C. 465 (1967). International Air Transport Association; Report of the Legal Committee, J.A.L.C. 138 (1967). International Conference on Air Law, Tokyo, August-September 1963; minutes and documents. Vols. I and II. Montreal: ICAO, 1967. BAILEY, E.

d)

OTHER ORGANIZATIONS

Inter-American Aviation Law, Fourth Conference, Buenos Aires, J.A.L.C. 696 (1967). Internationale Handelskammer (IHK), Sitzung des Luftrechtsausschusses, Paris 6. Oktober 1966, Z.L.W. 35 (1967). Internationale Handelskammer (IHK), Sitzung des Lufttransportausschusses, Paris 21. Juni 1966, Z.L.W. 16 (1967) . CORRIGAN, M. J.

30. Warsaw Convention a) GENERAL Article 28 of the Warsaw Convention: a suggested analysis, Minn. L. Rev. 697 (1966).

275

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Latin American air law and the Warsaw Convention, I.A.L.C. 468

(1967). El ambito de aplicacion del convenio de Varsovia, Il Diritto Aereo 135 (1967). MENDELSOHN, A. I. A conflict of laws approach to the Warsaw Convention, J.A.L.C. 624 (1967). PERSICO, C. La clausola di richiamo alla convenzione di Varsovia del 1929 sui transporti aerei internazionali (nota a sent. Corte distr. New York 1° aprile 1966), Il Diritto Aereo 57 (1967). PONTAVICE, E. du. Limites d'application de la Convention de Varsovie face au droit p€nal interne, R.G.A. 333 (1966). VILLENEUVE, J. G. de. "Le forum shopping" dans la Convention de Varsovie, R.G.A. 221 (1967). MAPELLI, E.

b)

REVISION AND MONTREAL AGREEMENT

Insurance, Warsaw Convention, changes made necessary by the Montreal Agreement, and possibility of denunciation of the Convention, J.A.L.C. 663 (1967). . The Warsaw Convention revitalised, J. Bus. L. 335 (1966). GEORGIADES, E. Heures et malheurs de la Convention de Varsovie, La Vie Juridique 1, 5 (1966). HILDRED, SIR W. Air carrier's liability: significance of the Warsaw Convention and events leading up to the Montreal Agreement, I.A.L.C. 521 (1967). LACEY, F. B. Recent developments in the Warsaw Convention, J.A.L.C. 385 (1967) ; also Ins. Counsel J. 266 (1967). LARSEN, P. D. The effect of the Montreal Agreement on the consolidation of private air law conventions, J.A.L.C. 633 (1967). LOWENFELD, A. F. The United States and the Warsaw Convention, Dep't State Bull. 580 (1966). . The Warsaw Convention and the Washington compromise; a view from America, J. R. Aeronautical Soc. 1061 (1966). LOWENFELD, A. F. and A. J. MENDELSOHN. The United States and the Warsaw Convention. Washington, D.C.: Dep't State Bull. 580 (1966). MANKIEWICZ, R. H. Le statut de l'arrangement de Montreal (mai 1966) et la decision du Civil Aeronautics Board du 13 mai 1966 concernant la responsabilite de certains transporteurs aeriens å l'egard de leurs passagers, R.F.D.A. 384 (1967). . Pourquoi les Etats-Unis d'Amerique n'ont pas ratifie le Protocole de La Haye, R.G.A. 349 (1967). MILLIGAN, M. L. The Warsaw Convention—Did the carriers take all necessary measures to avoid damage to the convention, or was it impossible for them to take such measures? J.A.L.C. 675 (1967). NORMAN, E. USA's uppsäging av Warszawa-konventionen, Arkiv für Luftrett 237 (1967). ONEK, J. N. The Montreal Agreement and enterprise liability, J.A.L.C. 603 (1967). POURCELET, M. Limites de responsabilite: l'accord du 4 mai 1966, R.G.A. 247 (1966). PRADELLE, P. de la. Varsovie de nouveau en question, R.G.A. 7 (1966). Report of the work of the Panel of Experts on limits for passengers under the Warsaw Convention and the Hague Protocol, J.A.L.C. 689 (1967). CAPLAN, H.

276

BIBLIOGRAPHY 1966-1967 Erweiterung der Jaftung im Luftwerkehr, Z.L.W. 78 (1967). . Internationale Zivilluftfahrt-Organisation (ICAO), Sonderkonferenz, Montreal 1. bis 15. Februar 1966, Z.L.W. 195 (1966). scHWEICKHARDT, A. Das neue Haftungsabkommen unter einzelnen Luftverkehrsgesellschaften für den Verkehr von und nach den Vereinigten Staaten, A.S.D.A. Bull. 2, 6 (1966). SINCOFF, M. G. Absolute liability and increased damages in international aviation accidents, J.A.L.C. 147 (1967). SMIRNOFF, M. La crise de la Convention de Varsovie: le point de vue des pays en voie de dåveloppement, R.F.D.A. 259 (1967) . SCHMIDT-RANTSCH, G.

Special ICAO meeting on limits for passengers, Montreal 1-15 February 1966; minutes and documents. Montreal: ICAO, 1967. The Montreal conference and international aviation liability limitations, J.A.L.C. 554 (1967) . STROMMER, K. M. USA och Warszawa-konventionen Dissonanser i internationellt samarbete pa luftprivaträttens omrade, Nordisk forsikringstidskrift 257 (1966). SWART, P. J. Prospects of amendment of the Warsaw Convention, J.A.L.C. 616 (1967). TANCELIN, M. La crise de la Convention de Varsovie, R.G.A. 133 (1966). The 1966 carrier agreements: The United States retains the Warsaw Convention, Va. J. Ina L. 140 (1966). WHITEHEAD, G. I., JR. Still another view of the Warsaw Convention. J.A.L.C. 651 (1967). STEPHEN, J. E.

277

PART II: SPACE LAW

Section I Doctrine

Chapter 18

Commercial Utilization of Space and the Law PAUL G. DEMBLING*

Summary:

I. INTRODUCTION. Purpose, Scope, and Sources. H. LEGAL PROBLEMS ARISING OUT OF THE COMMERCIAL UTILIZATION OF SPACE — THE GOVERNING BODIES OF LAW A. Problems Related to Claims for Tort Damages. B. Problems Related to the Ownership of Property and the Status of Persons: (1) Ownership and Use of Property; (2) Status of Persons in Outer Space and on Celestial Bodies. C. Problems Related to the Conduct of Business in Outer Space. D. Problems Related to Criminal Jurisdiction in Outer Space. III. METHODS OF REGULATING ACTIVITY IN OUTER SPACE AND ON CELESTIAL BODIES. 1V. CONCLUSION

I. INTRODUCTION PURPOSE, SCOPE, AND SOURCES

It is the purpose of this paper to present a discussion of legal concepts and principles which are, or might be, applicable to activities in outer space beyond the exploratory or experimental stages. Of necessity, such a presentation raises many more questions than it provides answers. While there has been a vast outpouring of scholarly commentary under the general heading of "space law" during the last nine years,1 the formulation of concrete legal principles governing space activity is only in its initial stages. While space research and development has had a tremendous impact on the existing state of knowledge in practically every area of science and technology, the actual utilization of space and celestial bodies for practical human endeavor has just begun. Indeed, one might fairly conclude that, except for the uses of • The views expressed in this paper are solely those of the writer and are not intended to represent the views of any agency or organization with which he may be connected. The author wishes to express his appreciation to Daniel M. Arons for his assistance in connection with this paper. 1. There have been over 3,000 articles published in various countries on the subject of space law since the launching of the first Soviet Sputnik on 4 October 1957.

283

Section 1 — Doctrine outer space for communications, meteorology, navigation, and military purposes, ventures into outer space by man and machine are still limited to exploration and experimentation. In attempting to determine what is or should be the law applicable to commercial or entrepreneurial activities in outer space, a variety of possible sources of the law must be examined. A body of international law directly applicable to activities conducted by nations and citizens thereof in outer space is already developing. Such international law is reflected most emphatically in the treaties, regulations, and resolutions adopted or endorsed by international organizations such as the United Nations and the International Telecommunication Union, and in other bilateral and multilateral international agreements such as the agreement establishing INTELSAT. A second and related source of applicable law is the existing conduct and views of States with respect to space activity. For example, the well-accepted principle that all of outer space is available for peaceful exploration and use by all States without regard to national sovereignty is derived largely from the lack of objections raised by States to early U.S. and Soviet space vehicles passing over their respective territories. The embodiment of this principle in the United Nations resolutions and proposed treaty provisions is merely the codification of an accepted principle rather than the creation of a new one.= A third source of the law consists of the various national statutes and government regulations governing the space activity of various States. For example, in the United States, there is the National Aeronautics and Space Act,3 the Communications Satellite Act,4 other statutes which bear directly or indirectly on the conduct of space activity, and a multitude of regulations, directives, orders, etc., of such agencies as the National Aeronautics and Space Administration, the Department of State, the Department of Defense, and the Federal Communications Commission. A fourth and perhaps the most pervasive source of the law of outer space is the general body of tort, contract, property, and criminal law, both national and international, codified and uncodified, used to govern the activities of men and nations here on earth. Where factual situations arise requiring the application of legal principle, and if no specific treaty, statute, or regulation is directly applicable, extrapolations will be made from existing analogous precedent wherever it may be found. A fifth and final source consists of the views of authors of books and articles on the law of outer space, to the extent such views are persuasive. 2. The rather academic controversy over where outer space begins arises out of the distinction between this principle and the even more accepted converse principle that the air space is subject to the jurisdiction of the individual nation states below. See Convention on International Civil Aviation (Chicago Convention), 4 April 1947, 61 Stat. 1180, T.S. No. 102 (effective 7 December 1944). 3. 72 Stat. 426, 42 U.S.C. 2451 et seq. 4. P.L. 87-624, 87th Cong., 2d Sess., 47 U.S.C. 701-744.

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II. LEGAL PROBLEMS ARISING OUT OF THE COMMERCIAL UTILIZATION OF SPACE: THE GOVERNING BODIES OF LAW One way of considering all the different kinds of problems that may arise in the conduct of commercial activities in space is to group them under four general legal headings: problems related to claims for tort damages, problems related to property ownership and status of persons, problems related to contracts and methods of doing business, and problems related to crimes. In attempting to classify legal problems into these categories, one must bear in mind that more than one category may apply, depending upon the particular facts involved. In addition, there may be national statutes or regulations, treaties, or other principles of international law applicable to problems in all of these categories. Finally, since no portion of outer space is subject to the jurisdiction of any particular nation, there may be a problem of choosing between differing and, possibly, conflicting legal principles as applicable to a given situation. A. PROBLEMS RELATED TO CLAIMS FOR TORT DAMAGES

Under this general heading may be grouped various torts such as assault, battery, defamation, invasion of privacy, negligence, and a variety of other types of noncontractual legal fault, all of which may arise once outer space is occupied by large numbers of human beings and property either brought from earth or manufactured out of material found in space or on celestial bodies. As examples of various problems that might arise, consider an automobile accident on the moon, an assault by one astronaut on another while in orbit, or a statement published by a person in an orbiting space station defaming the reputation of an individual in the same station, or in another station, or on the moon, or on earth. What is the governing law? Notwithstanding extensive scholarly discussions of the bases for the establishment of tort liability arising from activities in outer space,5 the only concrete formulation of governing rules thus far has been in the context of attempts to agree upon a treaty on liability for damages arising out of the launching of space vehicles. The principle of international liability for such damages is fairly well established, having been included as Paragraph 8 of UN Resolution 1962 (XVIII), the Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space.° A provision on liability, almost identical to that contained in the Declaration, appears as Article VII of the Outer 5. See, e.g., Goldie, Liability for Damage and Progressive Development of International Law, 14 int'l, and Coinp. L.Q. 1189 (1965). 6. That resolution was adopted unanimously by the General Assembly on 13 December 1963.

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Section I — Doctrine Space Treaty, which entered into force on 10 October 1967.7 That article provides: Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on Earth, in air space or in outer space, including the moon and other celestial bodies.

Thus, Article VII established a broad treaty obligation imposing liability for damages caused by the launching of space objects, regardless of where such damages occur—on earth, in air space, in outer space, or on the moon or other celestial bodies. Notwithstanding agreement on the Outer Space Treaty provision that States are obligated to provide compensation for personal injury and propery damage arising out of space activity, a considerable number of refinements must be made with a view to determining who should be liable and under what circumstances, who are the persons or entities entitled to compensation, what should be the standards of liability, what should be the measure of damages and other matters. In the Legal Subcommittee of the General Assembly's Committee on the Peaceful Uses of Outer Space, several nations have introduced alternative draft conventions providing detailed rules governing liability for damage caused by the launching of objects into outer space.s Each of these drafts proposes varying answers to many problems, some of which are as follows: (1) Who should be liable? Should it be the State on whose territory the object is launched? Should it be the State which conducts the launching, the States or States which manufactured the boosters, or the spacecraft, the State or States which finance the launching, if different, the State or States which sponsor experiments aboard the spacecraft, if different, or the State which has registered the spacecraft with the Secretary General of the United Nations? Should an international organization which launches or procures a launching be considered liable as an entity, or should the component member States be held liable, or should both the entity and the member States be jointly liable? 7. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, T.I.A.S. No. 6347. The Treaty is discussed in Dembling and Arons, "The Evolution of the Outer Space Treaty" in 33 J. Air L. and Corn. 419 (Summer, 1967). 8. At present, the following drafts are before the Legal Subcommittee as of the close of its Sixth Session on 14 July 1967: United States draft, UN No. A/AC.105/C7.2/L.19 (1967); Belgian draft, UN Doc No. A/AC.105,'C.2/L.7/Rev. 3 (1967): and Hungarian drafts, UN Doc Nos. A/AC.105/C.2/L.lO/Rev. 1 (1964), and A/AC.105/C.2/L.24 and Add. 1 (1967). For a discussion of the work on the liability conventions through the first four sessions of the Legal Subcommittee, see Dembling and Arons, Space Law and the United Nations: The Work of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space, in 32 J. Air L. and Comm. 329 (Summer, 1966).

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(2) Should liability be joint or joint and several, in the sense that a person or entity seeking compensation may look to any one or a combination of participants in a launching for satisfaction of a claim? (3) Should liability be absolute, or based on fault? Should some concept of negligence be applied in holding participants in a launching responsible? Should contributory fault be a bar to compensation? Should it proportionately reduce the amount of compensation to which the claimant is entitled? (4) Are only States permitted to seek compensation, either on behalf of governmental entities or private individuals or entities, or may private persons and entities seek compensation directly? (5) Should liability be limited to some monetary ceiling with respect to individual accidents? What would be the extent of damages caused by the accidental explosion of a nuclear rocket, or some other catastrophe? (6) Should there be a limitations provision barring the assertion of claims after a specified time period? (7) What should be the forum for the settlement of claims—an international court, national courts, arbitral bodies, some combination of these, or some other entity? Of particular concern to those who may wish to conduct activities in outer space or on celestial bodies for commercial purposes is the extent to which private individuals and corporate or other business entities may be considered liable for damages. With respect to foreign States or citizens of those States, Article VI of the Outer Space Treaty provides in part that States which are parties to the treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by nongovernmental entities.

Article VI further provides that The activities of nongovernmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the state concerned.

Thus, with respect to activities conducted in outer space by private individuals and entities, an international duty to authorize and supervise those activities is imposed upon the "State concerned." It may be reasoned from this provision that the State on whose territory a launching takes place has a duty to regulate the launching, and is liable for damages to foreign persons and entities in the event of an accident. Similarly, a State may be required to supervise the outer space activities of citizens of that State even where such activities take place in another State, or in outer space or on celestial bodies. In the event of damages caused by the space activities of those citizens, the State may be held liable. One should bear in mind, however, that the pertinent provisions 287

Section 1 — Doctrine of the Outer Space Treaty and the draft conventions on liability are only applicable with respect to international liability. Domestic liability is subject to the applicable domestic law, as embodied and developed through domestic statutes, regulations, court decisions, etc. In summary, the law applicable to resolution of claims for damages arising out of activity in outer space is developing principally in an international context and is concerned presently with the problems associated with the launching of space objects from earth. As persons and property are moved more or less permanently into outer space, legal principles will have to be developed to cope with the multitude of claims, the resolution of which will require recourse to law. Much will depend upon the status of persons and property in outer space, discussed below. But the principles now being developed in an international context for the resolution of claims arising out of launches will undoubtedly have great precedent value in providing criteria for the disposition of analogous situations arising out of the commercial exploitation of space. B. PROBLEMS RELATED TO THE OWNERSHIP OF PROPERTY AND THE STATUS OF PERSONS

1. Ownership and Use of Property Three broad questions may be raised with respect to the ownership and use of property in outer space and on celestial bodies. a) What is the legal status of property launched from earth into outer space and onto celestial bodies? b) What is the legal status of natural resources in space or on and in celestial bodies? c) What is the legal status of property manufactured in outer space using materials brought from earth and/or natural resources found in space? An answer to the first question is provided by the second sentence of Article VIII of the Outer Space Treaty which provides that Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the earth .°

Thus, items which are comprised of materials exported from earth are owned in outer space or on celestial bodies by the same nations, individuals, and entities that owned such items on earth. Individuals and entities who export property into outer space for commercial purposes may consider their ownership of the property unchanged. However, their use of the property may be restricted by applicable international and domestic law. 9. This provision is similar to the second sentence of paragraph 7 of the UN Declaration of Legal Principles.

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More interesting, and more debated, is the matter of ownership and use of natural resources found in space. There is extensive scholarly commentary on this subject,10 and comparisons have been drawn to the situation in Antarctica where national claims have been asserted." Article II of the Outer Space Treaty provides that Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.12

This provision merely bars the assertion of claims of national sovereignty. It does not bar use or occupation. Indeed, Articles I and III endorse the exploration and use of outer space and celestial bodies for peaceful purposes. In establishing these broad principles, however, the Outer Space Treaty hardly begins to answer the vast number of legal questions that will arise should man begin to exploit the natural resources found in space. For example, does the bar on national claims of sovereignty bar claims of ownership asserted by private individuals and entities? Do private individuals and entities gain certain legal rights by virtue of possession of natural resources? To what extent is existing law applicable to acquisition of natural resources on earth, applicable to acquisition of natural resources in space? To what extent should uses of natural resources in space by private entities and individuals be subject to national or international regulation, and what form should such regulation take? In this connection, one should take note of Article IX of the Outer Space Treaty which requires parties to pursue their studies and exploration of outer space and celestial bodies in such a manner as to avoid their "harmful contamination."13 Article IX as a whole establishes a basis for the proposition that the commercial utilization of natural resources found in space must be for the benefit of all, and not for the self-interest of some to the detriment of the interests of others. As a corollary to the above matters, the legal status of property manufactured in outer space or on a celestial body both from material imported from earth and from natural resources found in space raises an interesting question. If ownership of property on earth is unchanged by reason of its export to space, but natural resources in space are not subject to claims of ownership, the ownership status of a mixture of the two may depend upon some percentage test applied to the composition of the item, or the method of its manufacture, the status of the manufacturer, or some other criterion or combination of criteria. This kind 10. See, e.g., McDougal, Lasswell, and Viasic, Law and Public Order in Space (1963), Chapter 7. 11. Jessup and Taubenfeld, Controls for Outer Space (1959), Chapters 5 and 6. 12. A similar provision is paragraph 3 of the UN Declaration of Legal Principles. 13. The first sentence of Article IX provides: "In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in Outer space, with due regard to the corresponding interests of all other States Parties to the Treaty."

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Section 1 — Doctrine of problem is cited here only as an example of the kinds of practical legal problems that will arise once space is used for commercial purposes. Aside from the projections of commentators, hard thinking on such matters must await the evolution of factual situations requiring legal resolution. 2. Status of Persons in Outer Space and on Celestial Bodies Should outer space and celestial bodies become populated by human beings, a wide variety of questions will arise as to the personal legal status of such persons, their personal affairs and domestic relations. Ordinarily, legal matters pertaining to citizenship, births, marriages, deaths, divorces, custody of children, etc., are governed by law of the domicile of the individual or individuals involved. One might argue that the personal status of individuals in outer space is governed by the law of prior domicile on earth. Such a solution might be feasible for the first or even second generation of space residents. However, it will probably require a whole separate body of law, perhaps international in origin, based on principles generally accepted by a variety of nations here on earth, to govern various events in the course of the lives of individuals living in space. That astronauts are regarded as "envoys of mankind" in Article V of the Outer Space Treaty perhaps lays a foundation for an international solution.19 C. PROBLEMS RELATED TO THE CONDUCT OF BUSINESS IN OUTER SPACE

The conduct of commercial activities in outer space inherently involves the application of legal principles governing the organization of business entities, the financing of such entities, and the commercial law applicable to business transactions. In searching for precedent in what is already becoming an extremely complex area of intertwining legal, political, and economic considerations, the United States domestic communications satellite legislation, the organization of the Communications Satellite Corporation, and the formation of an international consortium for the operation of an international communications satellite system provide the most obvious basis for discussion. Much commentary, of course, exists on the development and use of communications satellites.15 Published legislative hearings and Congressional committee 14. Article V deals with the assistance to and return of astronauts and space vehicles, matters on which a detailed treaty was later adopted unanimously by the United Nations General Assembly on 19 December 1967. The treaty is called Agreement on the Rescue of Astronauts, The Return of Astronauts, and The Return of Objects Launched Into Outer Space. The text is printed in The New York Times. 17 December 1967, pp. 1-66. 15. See Levin, Organization and Control of Communications Satellites, 113 U. Pa. L. Rev. 315 (1965); Rosenblum, Regulations in Orbit: Administrative Aspects of the Communications Satellite Act of 1962, 58 Nw. U. L. Rev. 216 (1963); Schwartz, Governmentally Appointed Directors in a Private Corporation—The Communications Satellite Act of 1962, 79 Harv. L. Rev. 350 (1965); Colino, Global Satellite Communications and International Organization: A Focus on Intelsat, International Institute of Space Law, Xth Colloquium on the Law of Outer Space (Belgrade, Yugoslavia, September, 1967); Doyle, Communication Satellites: International Organization for Development and Control, 55 CallI. L. R. 431 (1967).

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reports are extensive. The unique status of the Communications Satellite Corporation, privately owned, yet in part publicly controlled, regulated by one Government agency,1° technically assisted by another,l7 manager for an international telecommunications consortium, is under constant examination. Whether or not the Communications Satellite Corporation may be regarded as a prototype for private business ventures in outer space, it at least may prove to indicate, to some extent, the business feasibility of financing and organizing private entrepreneurial activities in outer space. The law applicable to COMSAT's activities is everchanging, develops as problems require resolution, and it will not crystallize until much more is learned about the technology of satellite communications and the methods of putting it to economic use. The actual transaction of business in space or on celestial bodies will develop only after outer space has become populated on a more or less permanent basis and the exploration of space for primarily economic purposes has begun. Business transactions here on earth are based on a comprehensive body of law which provides at least the assumptions underlying commercial dealings. This law is determined by the particular jurisdiction or jurisdictions in which transactions are conducted or with which there is some substantial connection. Since no individual nation or sovereign authority on earth may appropriate an area of outer space and apply its law therein, business transactions, like personal affairs, will probably be conducted on the basis of a body of law essentially international in origin, drawing heavily upon well-accepted principles in various systems of domestic law, and the custom and practice of entities and individuals conducting business transactions in an outer space environment. The form and substance of the law that may develop to govern business transactions in outer space cannot now be predicted. However it would be fair to state that an appropriate system of law will come to exist, based on our knowledge of the requirements of human civilization. D. PROBLEMS RELATED TO CRIMINAL JURISDICTION IN OUTER SPACE

The criminal law, as established in various nations on earth, is applicable principally to offenses against the public order which occur within the territorial jurisdiction of the sovereign proscribing the conduct and for which penalties are assessed. In addition, it is generally accepted that a State has jurisdiction to regulate the conduct of its citizens or nationals wherever they reside.18 A recurrent problem in international law is the extent to which the territorial and nationality principles may be applied, along with other possible bases of criminal 16. The Federal Communications Commission. 17. NASA. 18. See Draft Convention on Jurisdiction With Respect to Crimes, Harvard Research In International Law, 29 Am. J. Intl. L. Supp., Pt. II (1935).

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Section I — Doctrine jurisdiction such as the protective principle, the universality principle, and the passive personality principle.'9 The protective principle has been well accepted, and the universality principle has been applied to piracy and war crimes.20 The validity of the passive personality principle is in dispute and has been rejected in a leading decision of the International Court of Justice.21 These principles may be applied concurrently; they are not exclusive of one another. Notwithstanding the diversity of the principles which have heretofore been used as a basis for criminal jurisdiction, they are all applied by individual States for the benefit of individual persons and property within the State concerned, except where the universality principle may be applicable. As persons and property occupy outer space, the connection between individual States and conduct deemed criminal will be vitiated. If no State may claim national sovereignty with respect to a designated area of outer space or a celestial body, the territorial principle as presently understood cannot be applied. It might be possible to apply the nationality principle as long as residents of outer space are considered nationals of States on earth. It is possible that an international code of criminal law will be developed through an extension of the universality principle, based on principles that are well accepted by the various legal systems on earth and subject to changing views on the propriety of human behavior as it emerges in the conduct of activities in outer space. Unless the era of space travel somehow includes the perfection of man, the conduct of commercial activities in outer space will not be devoid of improper conduct, as viewed in the light of standards set by civilized society. The only fair prediction that can be made is that criminal laws will somehow be extended to cover human conduct in outer space and on celestial bodies. How that law will be formulated cannot now be predicted with any degree of accuracy. III. METHODS OF REGULATING ACTIVITY IN OUTER SPACE AND ON CELESTIAL BODIES It is fair to state that all commercial activity on earth is controlled by laws, be they local, state, national, or international. With respect to 19. The Draft Convention, ibid., defines these three principles as follows: The Protective Principle — A State may exercise jurisdiction with respect to certain types of acts wherever, and by whomever, committed where the conduct substantially affects certain vital State interests, such as its security, its property, or the integrity of its governmental processes. The Universality Principle — A State may exercise jurisdiction with respect to certain specific universally condemned crimes, principally piracy, wherever and by whomever committed, without regard to the connection of the conduct with that State. The Passive Personality Principle — A State may exercise jurisdiction with respect to any act committed outside its territory by a foreigner which substantially affects the person or property of a citizen. 20. See Bishop, Cases and Materials of International Law (2d ed. 1962), Chapter 6. 21. Case of the S.S. "Lotus," PC/J, Ser. A. No. 10 (1927).

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many transactions, several different laws may be applicable; and where conflicts develop, they must be resolved by reliance upon the law having superior authority. In seeking to determine what law will govern commercial activities in space, a fundamental question, perhaps more political than legal, is what kind of legal system will develop. Will space Iaw be comprehensively international, with a supreme international authority having enforcement jurisdiction? Or will separate States or other kinds of jurisdiction be carved out and permitted to develop laws of a more or less local nature? Or will private conduct be largely unregulated, with legal principles and enforcement authorities established to deal with particular situations as they may arise? As long as activities in outer space are essentially earth-based, these theoretical problems are largely academic, and space activity is subject to regulation by those domestic or international authorities having control over the activities in question. Thus, the activities of the Communications Satellite Corporation are presently subject to domestic United States statutes and agency regulations and, in part, by the international agreements establishing the INTELSAT consortium. However, as the commercial exploration of outer space and celestial bodies takes a more permanent and pervasive form, the structuring of a governing legal system may become a more practical problem. Several articles in the Outer Space Treaty contemplate the existence of an international legal order of space activity, as distinguished from national or local regulation. Paragraph 1 of Article I provides that The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries .. . and shall be the province of all mankind.

Article III further provides that States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations.

Thus the Outer Space Treaty would establish the applicability of international law to activities in outer space and would appear to encourage the increasing development of such law, as commensurate with the duties of nations conducting space activities to conduct them in the interest of all mankind. The establishment of an international authority to enforce the law applicable to outer space activities has already been considered in the United Nations. The Ad Hoc Committee on the Peaceful Uses of Outer Space, established by the General Assembly in 1958, found that no autonomous inter-governmental agency should be created at this time nor should any existing agency be asked to undertake over-all responsibility for space matters.22 This view, however, was in part the result of 22. Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, UN Doc No. A/4141 (1959). See Jessup & Taubenfeld, The United Nations Ad Hoc Committee on the Peaceful Uses of Outer Space, 53 Ant. J. inti. L. 877 (1959).

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Section 1 — Doctrine the belief prevailing among lawyers at the beginning of this decade that many potential legal problems were too remote from the standpoint of existing technology, or that space activity can be conducted for the time being without the development of a comprehensive legal code. It was generally recognized that such a code could, at most, consist of mere speculations as to desirable legal principles. For example, it was believed that potential legal problems which should be deferred included such items as the determination of precise limits between air space and outer space, the provision of regulations against contamination of outer space or of the earth from outer space, the development of rules covering sovereignty, exploration, settlement, and exploitation of celestial bodies, and rules for the avoidance of interference among space vehicles. As activity in outer space and on celestial bodies increases, rules covering these matters must be developed. That practical consideration is now being given to establishing rules, on an international level, for governing activity in outer space is evident from certain discussions during the Sixth Session of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space, held in Geneva between 19 June and 14 July, 1967. Consideration was given to the desirability of drawing up a list of outer space activities which, from the scientific and technical point of view, would appear to be in need of regulation, and the order of priority which might be attached to the study of those activities 23 It is foreseeable that in developing the applicable rules, considerable reliance will be placed upon analogous international regulations here on earth, e.g., on the use of the seas, the air space, and Antarctica. In view of the attention devoted to the existing and potential application of international law to activities in outer space, the extent to which individual nations may apply their laws to such activities is at best a highly speculative matter. In individual situations, national laws will undoubtedly continue to be very important. For example, the existing commercial uses of outer space in communications, meteorology, and navigation are subject to national laws. Undoubtedly, national laws will be made applicable to outer space activity until superseding international legal authority is established. Without some form of regulation, it is doubtful that the exploration of the resources of outer space would be exclusively for peaceful purposes and in the interest of all mankind, as contemplated by the Outer Space Treaty. IV. CONCLUSION From the above discussion, one should perceive that the legal problems that will arise from the commercial utilization of outer space are immense in scope and complexity. Frequently, the assertion is made 23. UN Doc No. A/AC.105/37, Report of the Legal Subcommittee on the Work of Its Sixth Session (19 June-14 July 1967), 14 July 1967.

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that the lawyers are lagging far behind the scientists in coping with the challenge of space exploration and use. This assertion is made, however, without an adequate appreciation of the important steps that have been made with respect to the development of law applicable to space activities, and also without an adequate understanding of the manner in which legal principles develop in general. The development of legal rules, particularly with respect to novel areas of human activity, does not occur until there is a certain level of practice or agreement among the persons, entities, or States involved. For example, the broadly phrased provisions of the Outer Space Treaty reflect the consensus on applicable legal rules that is capable of achievement at the present time. It is necessary in an area such as this that, except for the establishment of general principles, the specific laws must follow science and technology. Establishment of erroneous legal regulations as a result of inadequate information may serve to hinder rather than advance the commercial development of outer space. As commercial ventures are launched into orbit and beyond, the law will follow, in order to preserve the development of outer space for the welfare of all mankind.

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Chapter 19

France Les Activites Spatiales de la France depuis octobre 1966* Au cours de l'annee ecoulee [19671, une etape importante dans les divers domaines de la recherche spatiale francaise a ete franchie: lancement des deux derniers satellites D-1D et D-7D de la serie "Diademe," inauguree par le lancement ler 17 fevrier 1966 du satellite D-1A. Avec les travaux d'amenagement du Centre spatial de Guyane et du Centre technique de Toulouse, la France a poursuivi la mise en place d'une infrastructure complete et importante de l'equipement au sol. La cooperation internationale a ete renforcee non seulement sur le plan europeen, mais egalement sur le plan des rapports bilateraux avec les deux grandel puissances mondiales de l'espace ainsi qu'avec d'autres pays, parmi lesquels nous citerons la Republique federale d'Allemagne. On peut enfin relever qu'en 1967 le Centre national d'etudes spatiales a fete le cinquieme anniversaire de sa creation.' Nous examinerons en detail d'abord les activites spatiales proprement frangaises, ensuite la cooperation internationale å laquelle la France a participe en matiere spatiale. I Le protocole d'accord de 1962 entre la Delegation ministerielle å l'armement (DMA) et le Centre national d'etudes spatiales (CNES) prevoyait, on le sait, la construction et le lancement de quatre fusees "Diamant." Avec le lancement les 8 et 15 fevrier 1967 des satellites D-1C et D-1D, partir du champ de tir militaire frangais d'Hammaguir, s'acheve la premiere phase quinquennale du programme spatial national. Le CNES dispose done de trois satellites "Diapason," "Diademe I" et "Diademe II," dont le programme scientifique devra permettre de faire progresser la geodesie spatiale. Par ailleurs de nombreuses fusees-sondes ont ete lancees, pour la plupart en collaboration avec des Etats strangers, mais parfois aussi dans un cadre purement national, comme le lancement effectue depuis la base Dumont d'Urville, en Terre Adelie, å 1'initi*This note was kindly contributed by Mrs. S. Courteix, Attach6e de Recherches, Centre National de la Recherche Scientifique, Paris, and Member of the Groupe de Travail sur le Droit de l'Espace. 1. Sur l'enscmble des activit6s de cet organisme voir R. Aubiniire, Realisations et projets de le recherche spatiale franficaise. Revue de defense nationale 1736-50 (novembre 1967); voir aussi S. Courteix, Annuaire de droll aerlen et spatial, 1965, chapitre 22, pp. 407-11.

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ative du Groupe de recherches ionispheriques du Centre national de la recherche scientifique (CNRS). La construction des satellites a donne lieu å une etroite cooperation entre de nombreux organismes scientifiques frangais: CNES, le Centre interarmees d'essais d'engins speciaux (CIEES), DMA, et la Societe pour l'etude et la realisation d'engins balistiques ((SEREB), tandis que les experiences de geodesie ellesmemes ont requis le concours de l'Observatoire de Paris-Meudon, de l'Institut geographique national, du Bureau de longitudes du service d'aeronomie du CNRS, de l'Office national d'etudes et de recherches aerospatiales (ONERA), et de la marine nationale. Toute experience spatiale necessite par ailleurs le recours å de moyens importants afin de concevoir et d'essayer les vehicules, de les lancer, de les reperer dans l'espace, de recueillir leurs signaux ((telemesure), de leur envoyer des ordres (telecommande), ou encore de traiter les informations qu'ils transmettent. Le reseau de stations de localisation, de reception de telemesures, et de transmission de telecommandes du CNES, dont la mise en place avait ete decidee en 1963 en fonction du programme de lancement des satellites frangais, fonctionne depuis le début de 1966. Il comprend un reseau de stations de poursuite DIANE å Kourou (Guyane)2 et Pretoria (Afrique du Sud) et tm reseau de telecommande et telemesure IRIS å Bretigny/Orge (France), Pretoria (Afrique du Sud), Ile de Grande Canarie (Espagne),3 Ouagadougou (Haute-Volta), et Stephanion (Grece) .4 Le Centre spatial de Bretigny, qui a commence å fonctionner en 1962-63, coordonne les activites des diverses stations. A ces installations viendront s'ajouter le Centre technique de Toulouse, actuellement en construction, qui doit prendre d'ici 1969 une partie des activites de Bretigny, notamment en matiere de satellites et de ballons; enfin, le Centre de lancement de Guyane, dont la construction fut decidee en avril 1964, se substitue å la base d'Hammaguir, evacuee le ler juillet 1967, en application des accords d'Evian du 18 mars 1962. Il offrira, des 1968, la possibilite de tirs de fusees-sondes et, å partir de 1969, le lancement de satellites (notamment D-2 et "Symphonie"). L'ensemble de cette infrastructure et de ces equipements participe au developpement de l'effort europeen. D'une part le reseau du CNES et celui du CERS/ESRO ont ete etablis de facon complementaire, d'autre part les installations francaises de Guyane sont completees par un ensemble d'installations europeennes (PAS) pour assurer les tirs des lanceurs du CECLES/ELDO ("Europa II") porteurs de satellites de telecommunications geostationnaires. 2. La station d'Hammaguir (Algerie) 3 fontionne jusqu'en avril 1967 mais les equipements ont ete reinstalles 3 Kourou (Guyane) et ont ete mis en service fin 1967. 3. 11 s'agit d'un transfert de is station IRIS d'Hammaguir. 4. 11 s'agit de la station mobile de Beyrouth qui a fonctionne jusqu'en septembre 1966, puls a Ete transferee—pour l'execution des programmes D-1C et 13•1D-3 Stephanion. Elle quitera definitivement la Grece en septembre 1967 pour etre installee a Kourou en 1968.

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L'expose, quelque peu technique, de l'infrastructure et des moyens mis å la disposition du CNES pour la realisation du programme national, etait necessaire pour comprendre comment vont se derouler les deuxieme et troisieme phases de son programme. Pour passer å la deuxieme partie du programme francaise—qui cornprend notamment le lancement du satellite D-2—il etait necessaire d'ameliorer le lanceur "Diamant." La decision correspondante a ete prise par le Ministre de la Recherche scientifique et des questions atomiques et spatiales le 30 juin 1967. Six exemplaires de "Diamant-B" sont des å present commandos: deux sont destines au Iancement du satellite D-2, les quatre autres legerement modifies, serviront å la mise au point du quatrieme etage PAS de de la fusee "Europa II" du CECLES. Le cadre budgetaire å l'interieur duquel le CNES devait prevoir son programme pour la duree du cinquieme plan (1966-1970) a ete fixe au debut du plan a deux milliards de francs, comte tenu de la participation francaise aux activites europeennes du CECLES et du CERS. L'extension des activites du CECLES qui resulte de la conference des ministres de juillet 1966 (systeme PAS) et l'adoption, en cours de plan, de projets qui n'etaient pas initialement prevus (contribution au satellite franco-allemand "Symphonie") ont amene les pouvoirs publics å consentir une augmentation de credits.° Le budget 1968 depasse nettement les previsions du cinquieme plan. Cependant, la preoccupation principale du CNES est des maintenant la preparation du sixieme plan ( (troisieme phase du programme) et notamment la decision de savoir quels seront les satellites å lancer å partir de 1971.° A cet effet, la Direction des programmes et du plan du CNES a regu une structure nouvelle; elle devra, par ailleurs, tenir compte notamment des avis de la Commission consultative des programmes creee par la Conference spatiale europeenne (CSE) de Rome en juillet 19677 chargee d'etudier l'insertion des futurs satellites de telecommunications dans un programme spatial å moyen et å long terme. II Dans l'optique de ce sixieme plan, deux projets ont d'ores et déjà ete adoptes: il s'agit dans les deux cas d'experiences å faire en commun avec un pays etranger, d'une part le satellite de telecommunications "Symphonie" realise en collaboration avec la Republique federale d'Allemagne et qui sera lance en 1971 par la fusee "Europa II" depuis le Centre spatial guyanais, d'autre part le satellite scientifique frangais "Roseau" dont le lancement par l'Union sovietique pourrait avoir lieu en 1972. 5. Voir Le projet Symphonie, 220 Air et Cosmos 37 (novembre 1967). 6. Cf. Aubinilre, op.cit., p. 1748. 7. CSE, 10-12 juillet 1967, resolution n"1 sur la coordination de la politique spatial° europ6enne.

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Section II — Surveys Quant l'annee 1967 le developpement de la cooperation spatiale internationale est marquee par une intensification des echanges bilateraux. Ceux-ci concernent une quinzaine de pays, mais sont particulierement intensifs avec l'Allemagne (fusees "Veronique," convention sur le programme "Symphonie"), les Etats-Unis (programme FR-2), et I'URSS (projet "Roseau", lancement d'equipements francais par des fusees sovietiques et vice-versa). Au cours de l'annee 1967, le CNES a organise des campagnes de lancement de fusees-sondes en cooperation avec des organismes strangers notamment en Argentine (operation "eclipse en Argentine" lances par le CNES avec le concours de l'ONERA et de la Comision national de Investigations espaciales) en application du protocole d'accord entre le CNES et le CNIE d'octobre 1962,8 et en Islande et en Not-liege (au profit du service d'aeronomie du CNRS). Tandis que les relations bilaterales traditionnellement entretenues avec de nombreux Etats ont continue a se developper favorablement (Etats-Unis, Inde, Pakistan), de nombreux contacts ont ete etablis avec divers autres pays notamment le Bresil (pour la construction d'une station de poursuite qui fonctionnera en liaison avec le Centre de lancement de Guyane), le Canada (des missions d'etude et d'information titant accomplies entre le gouvernement du Quebec et le CNES), 1'Arabie Seoudite (dans le cadre de l'accord general de cooperation technique en matiere de telecommunications, le CNET a ete charge de proposer des plans pour ]'installation d'une station terrestre de telecommunications par satellites) et certains Etas de ]'Europe de ]'Est (Hongrie notamment). La cooperation avec la NASA est particulierement fructueuse: la realisation du satellite FR-1 lance en novembre 1966, en vertu du protocole d'accord entre le CNES et la NASA du 18 fevrier 1963,° donne lieu a un travail de depouillement considerable par des equipes formees de techniciens des deux pays. Quant au programme Eole-FR-2,10 le plus important programme francais d'ici 1970, il est entré dans une phase experimentale avec le lancement de ballons plafonnand dans le Pacifique. La cooperation franco-sovietique dont la base est constituee par l'accord-cadre du 30 juin 196611 et les accords d'octobre 1966 s'est nettement precisee et a ete renforcee.1 Rennie pour la premiere fois du 26 au 31 janvier 1967, la Commission mixte permanente de cooperation franco-sovietique dite "Grande Cornmission" chargee de definir les grandes lignes de la collaboration dans 8. Texte, your Annuaire de droll a€Tien et spatial. I965, p.497. 9. Texte, voir Annuaire de droll aErien et spatial 1965. pp. 497-98.

10. Accord CNES-NASA du 16 juin 1966, voir Annuaire de droit airien et spatial, 1966, pp. 539. 11. Texte, voir Annuaire de droit aErien et spatial, 1966, pp. 543. 12. Voir I. Grigoriev, France URSS: coop4ration f6conde, La Vie internationale, 20-26, (juillet 1967).

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les domaines de l'economie de la science, et de la technique, a vu son role precise par M. Debre, co-president de cette Commission, dans les termes suivants: "Le but de la Grande Commission est de faire le point des resultats déjà atteints, de fixer un programme de travail aux organismes specialises, de prendre conscience des nouveaux domaines ouverts å la collaboration des deux pays et de soumettre aux gouvernements un certain nombre de directives destines å orienter leur effort." Dans le cadre des rencontres periodiques prevues par les accords, les trois commissions mixtes ad hoc, chargees de l'etude de la cooperation spatiale entre les deux pays, se sont reunies å Paris du 15 au 25 mai 1967 pour faire le point de l'etat d'avancement des programmes cornmuns en mattere de satellites scientifiques, de meteorologie et aeronomie, et de telecommunications. Cette reunion, ainsi qu'une seconde tenue å Moscou du 18 au 22 juin 1967 ont enterine le choix du CNES relatif au type de satellite frangais qui devrait gitre mis sur .orbite par une fusee sovietique en 1971: il s'agit d'un satellite magnetosperique baptise "Roseau." Un groupe de travail technique commun a ete tree pour examiner Ies problemes lies å cette realisation, notamment ceux poses par l'assemblage du satellite avec le dernier etage du lanceur sovietique. Participent å ce projet, du cote sovietique, l'Academie des sciences de l'URSS et du cote frangais, le CNES, le CNET, l'Observatoire de Paris-Meudon, le Groupe de recherches ionospheriques du CNRS, le Centre d'etudes spatiales des rayonnements, et le Commissariat å l'energie atomique (CEA). Dans les domaines de la meteorologie et de l'aeronomie, il est egalement decide de promouvoir la cooperation entre les deux pays. En vue de l'etude de la haute atmosphere, les programmes d'experiences communes comportent des tirs de fusees sovietiques emportant des instruments frangais" tandis que des fusees-sondes frangaises emporteront, en contrepartie, des charges utiles sovietiques. En ce qui concerne la meteorologie, il a ete prevu de confronter les informations transmises par les satellites meteorologiques sovietiques "Cosmos" 144 et 256 avec les donnees recueillies å bord des baIlons frangais du projet "Colombe." Les echanges franco-sovietiques en matiere de telecommunications å l'aide des satellites sovietiques Molnya se poursuivent et la television en couleur est entrée en service le 1er octobre 1967 aussi bien en France qu'en URSS. Bientöt ces emissions seront courantes. C'est lå un domaine oil se rejoignent la cooperation dans la technique de la television et celle en matiere d'exploration de l'espace cosmique.14 Les accords fondamentaux de juin et octobre 1966 ont ainsi conduit aux premieres realisations spatiales communes å l'Union sovietique et å un pays occidental. 13. Le premli:re experience commune a eu lieu 9 et 10 octobre 1967 å Vile de Heyes (URSS) : deux fustes mtttorologiques sovietiques 8quipfes d'appareils fabriquks par le service d'atronomie du CNRS ont Ete lancets avec succds. 14. Cf. Grigoriev, op.cit., p. 22.

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Section II — Surveys L'accord intervenu entre la France et la Republique federale d'Allemagne le 6 juin 1967 pour la realisation en commun du satellite experimental de telecommunications "Symphonie" constitue egalement une titape importante de la cooperation dans un cadre bilateral, avec des prolongements certains sur le plan europeen. Anterieurement å cette entente, il y avait des efforts nationaux separes. En effet, du cote francais, le CNES et le CNET avaient initialement, en 1965, etabli un projet de satellites de telecommunications å defilement "Safran" que devait lancer la fusee "Europa I" du CECLES. Ce projet fut repris en juin 1966 en tenant compte des possibilites offertes par la fusee "Europa II" (ELDO/PAS) et des lors c'est un satellite geostationnaire "Saros I" qui fut prevu. En octobre 1966, le CNES, le CNET et l'ORTF proposerent un projet de synthese "Saros II" qui pouvait assurer en plus des liaisons telephoniques et telegraphiques, la transmission de programmes de radio et de television. Eu tigard au coüt d'un telle realisation, on songea å faire appel å d'autres pays europeens : en effet la Republique federale d'Allemagne avait de son cote, effectue depuis quelques annees, des travaux sur un projet de satellite de telecommunications "Olympia." Des contacts furent pris des novembre 1966 avec les ministres interesses et l'eventualite d'une mise en commun des resultats des travaux preparatoires elabores dans chacun des deux pays fut envisage. Des negociations ont en lieu en avril 1967: l'on considera que ce projet de cooperation scientifique et technique s'inscrivait parfaitement dans le cadre du traite d'amitie franco-allemand du 22 janvier 1963, et etait un heureux complement de la collaboration tres fructueuse instauree en janvier 1967 pour la construction et l'exploitation å Grenoble d'un reacteur a tres haut flux. Le 6 juin 1967, å Paris, les ministres francais et allemands de la recherche scientifique signaient une convention pour la construction, le lancement, et l'utilisation du satellite experimental de telecommunications "Symphonie," synthese des projets "Saros II" et "Olympia."15 Destine å transmettre, å titre experimental å partir de 1971, des emissions de radio et de television (aussi bien des programmes en couleur du systeme SECAM que du systeme PAL) ainsi que la transmission de donnees et de communications telephoniques, "Symphonie" sera lance le Centre spatial guyanais par une fusee "Europa II" du CECLES. La zone geographique couverte concernera surtout l'Europe, l'Afrique, le Proche-Orient, et la cote est des deux Ameriques. Sur le plan institutionnel, les deux gouvernements se sont mis d'accord sur la mise en place de deux organismes dans lesquels les deux pays sont representes å egalite. La direction du programme est confiee å un Conseil de direction definissant les orientations generales du Projet et 15. Volt Le Projet Symphonie, Air & Cosmos, op.ctt., p. 4.

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prennant toutes les decisions de principe pour ''execution et le contröle de ce projet.16 ll est compose de six membres: les trois membres frangais etant des representants des trois organismes nationaux interesses, le CNES, le CNET, et l'ORTF. 11 se reuni au moins quatre fois par an, en principe alternativement å Paris et å Bonn. La gestion technique et financiere est assuree par un "Comite executif ayant pour mission, sous ''autorite du Conseil, de diriger ''execution du Projet sur les plan technique et financier. Il est chargé de coordonner les travaux de tous les organismes participant au Projet."" Il est compose d'un secretaire permanent frangais et d'un secretaire permanent allemand, chacun des deux secretaires pouvant se faire assister d'experts choisis dans les Administrations nationales. Par cet accord le parties s'engagent a: —partager les droits (utilisation, Articles XIV å XVIII, propriete industrielle, Article XII) et les obligations (notamment les travaux) inherents au programme;lg —confier å l'industrie la conception et la realisation du satellite et des stations terriennes. En ce qui concern ces dernieres, chaque partie s'engage å respecter les reglements correspondants en vigueur sur le plan national et international (Article XIII). Le principe de l'adjudication a ete retenu pour la passation des contrats. La convention prevoit une repartition equitable des contrats aussi bien sur les plans quantitatif que qualitatif19 entre les industries des deux pays, leur conclusion et leur gestion administrative incombant au CNES et å la Gesellschaft für Weltraumforschung (GWF).."-0 Du cote frangais, la maltrise d'oeuvre a toujours ete du ressort du CNES mais du fait qu'il n'existe pas jusqu'å present en Allemagne2l d'organisme responsable de la politique spatiale comparable au CNES en France, ce sont "des consortiums industriels franco-allemands" qui recevront les contrats de maltrise d'oeuvre. Les travaux feront donc l'objet d'un contrat unique. Notons que cet accord contient de tres interessantes dispositions relatives å la propriete industrielle et prevoit egalement une procedure d'arbitrage en cas de differences relatifs ä ''interpretation ou å l'application des dispositions de la convention. Cet accord, le premier de ce genre å etre signe en Europe, va ainsi conduire å la premiere realisation europeenne en matiere de satellite de communication. C'est une contribution importante aux efforts entrepris dans le cadre de la CETS "en vue de renforcer le potentiel europeen 16. Cf. Article 5 de la Convention (voir Ch. 22). 17. Cf. Article 6 de ta Convention (voir Ch. 22). 18. Cf. Article 3 de la Convention (voir Ch. 22). 19. Cf. Article et 8 de la Convention (voir Ch. 22). 20. Cf. Article 9 du la Convention (voir Ch. 22). 21. Le ministre de la recherche d'Allemagne f6d6rale a annoncb au début octobre 1967 que la recherche aEronautique et la recherche spatiale seront regroupees sous son autorite a partir du ler janier 1968 et qu'une d6cision relative a la creation d'un Centre national de ta recherche spatiale sera arrette dans les prochains mois.

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dans le domaine de la recherche et de la technique spatiales, en particulier dans celui du developpement des satellits de telecommunications." L'Europe va donc pouvoir se presenter en 1969, lors de la revision des accords de Washington, avec un programme en cours de realisations`tandis que de leur cote l'URSS et les pays de 1'Est auront sans doute mis en oeuvre un reseau parallele å INTELSAT. En 1969 sont donc trois reseaux que les Etats-Unis devront prendre en consideration s'ils desirent toujours aboutir å l'organisation mondiale unique. Sur le plan de la cooperation europeerne le CNES a continue å participer activement å l'execution de la partie francaise des programmes internationaux: —le CERS/ESRO a déjà tiro une trentaine de fusees sondes. Le satellite "ESRO I1" a ete lance le 30 mai 1967 depuis la base de Vanderberg mais sa mise en orbite a echoue. Une seconde experience devrait avoir lieu d'ici quelques moil; —les travaux de "ESRO 1" (dont une firme francaise est le maitre d'oeuvre) et du satellite "Heos" se poursuivent. Les projets des deux gros satellites TD-1 et TD-2 ont fait l'objet de contrats, la France ayant la maltrise d'oeuvre du matche; —dans le cadre du CECLES/ELDO, l'essentiel de la participation francaise a porto sur la preparation d'accords pour la realisation et l'utilisation de la base de lancement CECLES du Centre spatial de Guyane et sur les negociations preliminaires å l'achat du lanceur "Europa II" destine å mettre sur orbite le satellite franco-allemand "Symphonie" precite; —la France participe egalement activement aux programmes de la CETS et de la CSE (cette derniere ayant tenu deux importantes reunions les 13 decembre 1966 et 11-12 juillet 1967) qui ont pour but d'aboutir å un accord sur les programmes europeens et de preparer l'Europe aux negociations de 1969. 11 convient de signaler aussi que sur le plan de la collaboration pratique, au sein de l'1NTELSAT, la station francaise de Pleumeur-Bodou a participe å l'exploitation d'Early Bird (INTELSAT I) en liaison avec d'autres stations situees en Grande-Bretagne, en Republique federale d'Allemagne, et aux Etats-Unis et que la station Pleumeur-Bodou II, destinee å fonctionner avec le satellite INTELSAT III å la fin de 1968, est en cours de realisation. L'expose de l'activite spatiale internationale å laquelle a pris part la France durant la periode 1966-67 serait incomplet si nous ne disions pas un mot du traite "sur les principes devant regir les activites des Etats dans le domaine de l'exploration et de l'utilisation de l'espace extra-atmospherique, de la lune et des autres corps celestes" adopte par l'Assemblee generale de 1'ONU le 19 decembre 1966 et ouvert å la 22. II convient de rappeler par ailleurs, que les pays europeens membres de la CETS one fait efectue par le CERS-ESRO une etude de satellite de communication europlen.

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signature des Etats simultanement å Londres, Moscou, et Washington, le 27 janvier 1967. Il est entre en vigueur le 10 octobre 1967 par le depot des instruments de ratification de 13 pays dont les "Trois Grands": 1'URSS, les Etats-Unis, et la Grande-Bretagne. La France pour sa part a signe ce traite le 25 septembre 1967, mais il est interessant de noter pour I'avenir les principales reserves qui ont ete formulees par le representant francais lors de sa discussion. L'accent a ete mis en effet sur les difficultes qui se presenteront lorsque I'on voudra appliquer les principes contenus dans le traite aux activites relatives å l'utilisation de l'espace extra-atmospherique. Le delegue francais a fait remarquer que le principal defaut du traite d'une part de ne pas definir l'espace exterieur, et d'autre part, tout en affirmant le libre usage de l'espace exterieur par tous les Etats, de ne pas fournir assez de garanties contre les abus par un pays qui pourrait violer les droits ou la souverainete des autres. II n'a pas fallu attendre longtemps d'ailleurs pour rencontrer dejå des dificultes d'interpretation du traite å la suite d'une annonce faite par les Etats-Unis debut novembre 1967 selon laquelle I'URSS disposera en 1968 d'un systeme de fusees orbitales å fetes nucleaires. Comme le soulignait le delegue francais aux Nations Unies, il convient donc, d'urgence, d'aboutir å une definition de l'espace extra-atmospherique ainsi que des diverses utilisations pacifiques possibles et imaginables en l'etat actuel de la science. L'enumeration des activites spatiales francaises montre que la France a cherche a realiser un effort tenant compte de ses moyens propres et des avantages que pouvait lui procurer la cooperation internationale. Les initiatives quelle a prises sur le plan bilateral cherchent å completer les realisations executees au titre de son programme national. Ces memes initiatives concourent å la mise au point d'activites sur le plan multilateral dont elles constituent ainsi l'amorce,23

23. Voir Le Monde, 5-6 novembre 1967.

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Section III Treaties

Chapter 20

General Treaties

I. TREATY ON PRINCIPLES GOVERNING THE ACTIVITIES OF STATES IN THE EXPLORATION AND USE OF OUTER SPACE, INCLUDING THE MOON AND OTHER CELESTIAL BODIES, SIGNED 27 JANUARY, 1967 Authentic Chinese, English, French, Russian and Spanish texts in United Nations Resolution 2223 (XXI), UN Doc A/RES 2223 (XXI); for the English text see also Yearbook of Air and Space Law, 1966, Part II, Section III, Chapter 27. Depositories: Governments of the Union of the Soviet Socialist Republics, the United Kingdom, and the United States. Entered into force on 10 October 1967 with respect to States which deposited ratification on or before that date: "States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Treaty, it shall enter into force on the date of the deposit of their instruments of ratification or accession"; see Article XIV, paragraph 4 of the Treaty. On 31 December 1967 the following States were parties to that Treaty: * Australia(') (10/10/67), B u l g a r i a(') (11/4/67), Byelorussia(') (31/10/67), Canada(1) (10/10/67), Czechoslovakia(1) (22/5/67), Denmark(') (10/10/67), Finland(') (12/7/67), German Democratic Republic(3)(4 ) (2/2/67), Hungary(') (26/6/67), Japan(') (10/10/67), 'The date appearing in brackets after the name of each State refers to the date of ratification or accession. 1. Ratification deposited at Washington, London and Moscow. 2. With reference to the reported signature and deposit of ratification at Moscow by the Byelorussian Soviet Socialist Republic and the Ukrainian Soviet Socialist Republic, the Government of the United States considers those two constituent republics as already covered by the signature and deposit of ratification of the treaty by the Union of Soviet Socialist Republics. 3. With reference to the reported signature and deposit of ratification at Moscow by the "German Democratic Republic," attention is called to the following statement in a note of 25 February, 1967, from the Government of the United States to the Government of the Union of Soviet Socialist Republics: "Inasmuch as the Government of the United States of Americz does not recognize the 'German Democratic Republic' as a State or as an entity possessing national sovereignty, it does not accept notice of signature in behalf thereof. Bearing in mind, however, the purpose of the Treaty, the Government of the United States of America notes that the East German regime has signified its intention with respect to the matters dealt with in the Treaty." 4. Ratification deposited at Washington.

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Section 111 — Treaties Korea(4) (7) (13/10/67), M o n g o l i a(5) (10/10/67), Morocco(°) (22/12/67), Nepal(') (22/11/67), Niger") (3/5/67), Sierra Leone(/) (14/7/67), Sweden(') (11/10/67), Ukrainia(2) (13/10/67), Union of Soviet Socialist Republics(') (10/10/67), United Arab Republie(4) (10/10/67), United Kingdom(')(8) (10/10/67).

II. AGREEMENT ON THE RESCUE OF ASTRONAUTS, THE RETURN OF ASTRONAUTS, AND THE RETURN OF OBJECTS LAUNCHED INTO OUTER SPACE* The Contracting Parties, Noting the great importance of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, which calls for the rendering of all possible assistance to astronauts in the event of accident, distress or emergency landing, the prompt and safe return of astronauts, and the return of objects launched into outer space, Desiring to develop and give further concrete expression to these duties, Wishing to promote international co-operation in the peaceful exploration and use of outer space, Prompted by sentiments of humanity, Have agreed on the following: Article I Each Contracting Party which receives information or discovers that the personnel of a spacecraft have suffered accident or are experiencing conditions of distress or have made an emergency or unintended landing in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State shall immediately: (a) notify the launching authority or, if it cannot identify and immediately communicate with the launching authority, immediately make a public announcement by all appropriate means of communication at its disposal; and 5. Ratification deposited at Moscow. 6. Accession deposited at Washington and Moscow. 7. The Embassy of the "Republic of Korea" informed the Department of State in a note dated 27 January 1967, in connection with the signature of the Treaty, as follows: "The signing and the ratification by the Government of the Republic of Korea of the present Treaty does not in any way mean or imply the recognition of any territory or regime which has not been recognized by the Government of the Republic of Korea as a state or government." 8. The instrument of ratification by the United Kingdom states that the Treaty is ratified in respect of "the United Kingdom of Great Britain and Northern Ireland, the Associated States (Antigua, Dominica, Grenada, Saint Christopher Nevis, Anguilla, and Saint Lucia) and Territories under the territorial sovereignty of the United Kingdom, as well as the State of Brunel, the Kingdom of Swaziland, the Kingdom of Tonga and the British Solomon Islands Protectorate." The British Ambassador made the following declaration in a note to the Secretary of State dated 10 October, 1967: "In depositing with the Government of the United States the instrument of ratificaton by the United Kingdom of the Treaty ... I have the honour to declare on behalf of the Government of the United Kingdom that this Treaty will not be applicable in regard to Southern Rhodesia unless and until the Government of the United Kingdom informs the other depositary Governments that it is in a position to ensure that the obligatons imposed by the Treaty in respect of that territory can be fully implemented." *Draft prepared and approved by the Legal Sub-Committee during its special session (14-15 December 1967).

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INTERNATIONAL AGREEMENTS

(b) notify the Secretary-General of the United Nations who should disseminate the information without delay by all appropriate means of communication at his disposal. Article II If, owing to accident, distress, emergency or unintended landing, the personnel of a spacecraft land in territory under the jurisdiction of a Contracting Party, it shall immediately take all possible steps to rescue them and render them all necessary assistance. It shall inform the launching authority and also the SecretaryGeneral of the United Nations of the steps it is taking and of their progress. If assistance by the launching authority would help to effect a prompt rescue or would contribute substantially to the effectiveness of search and rescue operations, the launching authority shall co-operate with the Contracting Party with a view to the effective conduct of search and rescue operations. Such operations shall be subject to the direction and control of the Contracting Party, which shall act in close and continuing consultation with the launching authority. Article III If information is received or it is discovered that the personnel of a spacecraft have alighted on the high seas or in any other place not under the jurisdiction of any State, those Contracting Parties which are in a position to do so shall, if necessary, extend assistance in search and rescue operations for such personnel to assure their speedy rescue. They shall inform the launching authority and the Secretary-General of the United Nations of the steps they are taking and of their progress. Article IV If, owing to accident, distress, emergency or unintended landing, the personnel of a spacecraft land in territory under the jurisdiction of a Contracting Party or have been found on the high seas or in any other places not under the jurisdiction of any State, they shall be safely and promptly returned to representatives of the launching authority. Article V 1. Each Contracting Party which receives information or discovers that a space object or its component parts has returned to Earth in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State, shall notify the launching authority and the Secretary-General of the United Nations. 2. Each Contracting Party having jurisdiction over the territory on which a space object or its component parts has been discovered shall, upon the request of the launching authority and with assistance from that authority if requested, take such steps as it finds practicable to recover the object or component parts. 3. Upon request of the launching authority, objects launched into outer space or their component parts found beyond the territorial limits of the launching authority shall be returned to or held at the disposal of representatives of the launching authority, which shall, upon request, furnish identifying data prior to their return. 4. Notwithstanding paragraphs 2 and 3 of this article, a Contracting Party which finds that a space object or its component parts discovered in territory under its jurisdiction, or recovered by it elsewhere, is of a hazardous or deleterious nature may so notify the launching authority which shall immediately take effective steps, under the direction and control of the said Contracting Party to eliminate possible danger or harm.

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Section II! —Treaties 5. Expenses incurred in fulfilling obligations to recover and return a space object or its component parts under paragraphs 2 and 3 of this article shall be borne by the launching authority. Article VI For the purposes of this Agreement, the term "launching authority" shall refer to the State responsible for launching, or, where an international inter-governmental organization is responsible for launching, that organization provided that that organization declares its acceptance of the rights and obligations provided for in this Agreement and a majority of the States members of that organization are Contracting Parties to this Agreement and to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. Article VII 1. This Agreement shall be open to all States for signature. Any State which does not sign this Agreement before its entry into force in accordance with paragraph 3 of this article may accede to it at any time. 2. This Agreement shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the Governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics, which are hereby designated the Depositary Governments. 3. This Agreement shall enter into force upon the deposit of instruments of ratification by five Governments including the Governments designated as Depositary Governments under this Agreement. 4. For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Agreement, it shall enter into force on the date of the deposit of their instruments of ratification or accession. 5. The Depositary Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification of and accession to this Agreement, the date of its entry into force and other notices. 6. This Agreement shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations. Article VIII Any State Party to the Agreement may propose amendments to this Agreement. Amendments shall enter into force for each State Party to the Agreement accepting the amendments upon their acceptance by a majority of the States Parties to the Agreement and thereafter for each remaining State Party to the Agreement on the date of acceptance by it. Article IX Any State Party to the Agreement may give notice of its withdrawal from the Agreement one year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect one year from the date of receipt of this notification. Article X This Agreement, of which the English, Russian, French, Spanish and Chinese texts are equally authentic, shall be deposited in the archives of the Depositary Governments. Duly certified copies of this Agreement shall be transmitted by the Depositary Governments to the Governments of the signatory and acceding States. IN WITNESS WHEREOF the undersigned, duly authorized, have signed this Agreement.

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INTERNATIONAL AGREEMENTS

1II. MULTILATERAL COMMUNICATION SATELLITE AGREEMENTS (STATUS) A. AGREEMENT ESTABLISHING INTERIM ARRANGEMENTS FOR A GLOBAL COMMERCIAL COMMUNICATION SATELLITE SYSTEM AND SPECIAL AGREEMENT, DONE AT WASHINGTON 20 AUGUST 1964.

Entered into force on 20 August 1964. The following States became Parties to the Interim Agreement and Special Agreement during 1967. ENTRY INTO EFFECT OF INTERIM AGREEMENT

QUOTA (% )

East African External Telecommunications Company, Ltd.

11 October 1967

.049975

Ministry of Communications of the Republic of Korea

24 February 1967

.049655

Intercontinental de Comunicacioncs Por Satelites, S.A.

20 October 1967

.039980

Junta Permanente Nacional de Telecomunicaciones

9 June 1967

.049930

East African External Telecommunications Company. Ltd.

16 June 1967

.049930

COUNTRY

ENTITY

Kenya

Korea

Panama

Peru

Tanzania

B. SUPPLEMENTARY AGREEMENT ON ARBITRATION

Note: The last sentence of Article 14 of the Special Agreement provides as follows: "The Supplementary Agreement shall be binding on all those who subsequently become signatories to this Special Agreement." Consequently, Article 13 of the Supplementary Agreement on Arbitration stipulates that after the Supplementary Agreement has come into force "it shall enter into force for other signatories on the day on which the Special Agreement enters into force for them." C. COMPOSITION OF THE INTERIM COMMUNICATIONS SATELLITE COMMITTEE

In July 1967, another seat was added to the Committee by the AsiaPacific Group, composed of India, Indonesia, Malaysia, New Zealand, Singapore and Thailand, bringing the total number of seats to 18. 315

Chapter 21

Regional Arrangements I. EUROPEAN ORGANIZATION FOR THE DEVELOPMENT AND CONSTRUCTION OF SPACE VEHICLE LAUNCHERS (ELDO) AGREEMENTS CONCLUDED BY ELDO A. ELDO—FEDERAL REPUBLIC OF GERMANY EXCHANGE OF LETTERS BETWEEN THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND THE EUROPEAN SPACE VEHICLE LAUNCHER DEVELOPMENT ORGANISATION (ELDO) ON THE USE OF GERMAN TEST CENTRES

1. Letter from the Federal Ministry of Scientific Research Bad Godesberg, 19th October 1967 Sir, I have the honour of proposing to you the following clauses whereby the Organisation might indemnify the Federal Republic in respect of operations to be carried out at test centres of the Federal Republic. ARTICLE I-INDEMNITY

(1) The Organisation shall indemnify the Federal Republic against damage, loss, injury or liability of any kind incurred by: (a) The Federal Republic; (b) Länder of the Federal Republic; (c) Natural or juridicial persons acting on behalf of the Federal Republic, its Länder or the Organisation; (d) Employees or agents of the above legal entities, that occurs in any place arising from any activity carried out in the test facilities of the Federal Republic in connection with operations under the Organisation's programme. (2) In addition to the full amount of any indemnity the Organisation shall reimburse the Federal Republic with all expenses incurred by the legal entities referred to under paragraph (1) arising from legal proceedings or out of court expenses for the settlement of any claims made by third parties. ARTICLE II-EXCEPTIONS

(1) This indemnity shall not apply whenever the loss, damage or injury are a result of the Federal Republic failing in a manner liable to be deemed grossly negligent by German civil law standards, to fulfil its obligations under the agreements to be separately concluded with the Organisation on the use of the test facilities.

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Section Ill — Treaties (2) Provided that the Federal Republic has in good faith taken action to fulfil its responsibilities, the obligation to indemnify under Article I shall subsist even if the damage was deemed to be caused by a deliberate act or gross negligence within the meaning of German civil law on the part of an employee or agent of the legal entities designated in Article I. In this case however any compensation to be demanded of such employees or agents shall be set off against the amounts payable by the Organisation under Article I. ARTICLE III-PROCEDURE FOR SETTLING CLAIMS

(1) The Federal Republic shall be entitled to settle or cause to be settled all claims under Article I of this Agreement without the authorisation of the Organisation. (2) The Federal Republic alone shall participate in any judicial, arbitral or other proceedings for loss, damage or injury attributable to the activities referred to in this Agreement. (3) The Organisation shall be consulted whenever the amount of damages exceeds DM 100,000 or the Federal Republic takes the view that a question of principle is involved. (4) The Federal Republic shall notify the Organisation of any proceedings referred to in paragraph (2) which are pending. ARTICLE IV-SETTLEMENT OF DISPUTES

(1) Any dispute between the parties to this Agreement concerning the grounds or amount of the indemnity to be granted by the Organisation to the Federal Republic under the terms of Articles I and II shall be settled in accordance with the arbitration procedure laid down in Articles 26(2), (3) and (4) and 27 of the ELDO Protocol on Privileges and Immunities. (2) Any dispute between the parties to this Agreement concerning its interpretation or application shall be settled in accordance with the arbitration procedure laid down in Article 22 of the Convention. If the foregoing provisions meet with your approval, I have the honour to propose that this letter together with your reply shall constitute an Agreement between the Government of the Federal Republic and the European Space Vehicle Launcher Development Organisation.

2. Letter from the Secretary General of ELDO to the Federal Ministry of Scientific Research

Paris, 25th October 1967 Sir, By your letter of today's date you wrote to me as follows: "I have the honour of proposing to you the following clauses ... I have the honour to inform you that upon the instruction of the Council of the Organisation I am able to give my acceptance to the terms of this letter which will therefore constitute together with this reply, an agreement between the Organisation and the Government of the Federal Republic. 318

ELDO B. ELDO

FRANCE

ECHANGE DE LETTRES ENTRE LE GOUVERNEMENT DE LA REPUBLIQUE FRANCAISE ET L'ORGANISATION EUROPEENNE POUR LA MISE AU POINT ET LA CONSTRUCTION DE LANCEURS D'ENGINS SPATIAUX (CECLES) RELATIF A L'UTILISATION DES CENTRES D'ESSAIS FRANCAIS POUR LA MISS AU POINT DU SECOND ETAGE DU LANCEUR ELDO-A (EUROPA I)

1. Lettre du ministere des algaires etrangeres. au secretaire general du cecles

Paris, le 25 novembre 1966 Monsieur le Secretaire General, J'ai I'honneur de vous proposer les dispositions suivantes par lesquelles l'Organisation pourrait accorder sa garantie a la Republique Francaise ii l'occasion des operations qui doivent gitre effectuees par la France dans ses centres d'essais pour la mise au point du second etage du lanceur ELDO-A (EUROPA I), en application de l'article 16(1) de la Convention. ARTICLE IER-GARANTIE

L'Organisation garantit la Republique Francaise contre: —a) toute perte ou tout dommage subi par la France; —b) toute responsabilite en ce qui conceme les reclamations dirigees contre la France et ses fonctionnaires ou agents au sujet de pertes, dommages ou prejudices survenus en toul Iieux, notamment sur le territoire de pays tiers, et resultant d'une activite exercee dans ses Centres d'essais au titre des operations qu'Elle effectuera dans le cadre du programme de l'Organisation. Des lors que le Gouvernement de la Republique Francaise a, de bonne foi, pris des mesures pour s'acquitter de ses responsabilites, l'acte oh l'omission de ses fonctionnaires ou agents qui entraine une perte, un dommage ou un prejudice, direct ou indirect, ne sera pas considers comme une carence du Gouvernement de la Republique Francaise dans l'exercice de ses responsabilites. Cette garantie ne s'applique pas si la perte, dommage ou prejudice, resulte d'une faute lourde du Gouvernement de la Republique Francaise, de ses fonctionnaires ou agents appreciee conformement au Droit Public francais. ARTICLE 2—RECLAMATIONS DIRIGEES CONTRE LE GOUVERNMENT DE LA REPUBLIQUE FRANCAISE

—a) Une reclamation dirigee centre le Gouvernement de la Republique Francaise au sujet d'une perte, d'un dommage ou d'un prejudice définis par les dispositions precedentes est reglee par ce Gouvernement. Celui-ci intervient seul dans toute la procedure judiciaire, arbitrale ou autre, relative å la reparation des pertes, dommages ou prejudices, imputables aux activites concernees par le present accord. —b) L'Organisation doit eire consultee par le Gouvernement de la Republique Francaise toutes les fois que le montant du dommage depasse 125.000 francs et chaque fois que le Gouvernement de la Republique Francaise estime qu'une question de principe est en jeu. 319

Section III — Treaties Le Gouvernement de la Republique Française tient l'Organisation informee du deroulement de toute instance en cours. —c) L'Organisation rembourse au Gouvernement de la Republique Francaise le montant des reparations et des frais que celui-ci devrait assumer en cas d'action en justice ou d'arbitrage international. ARTICLE C—LITIGES

—a) Tout litige survenant entre les parties au present accord en ce qui concerne l'application de la garantie accordee par l'Organisation å la Republique Francaise conformement aux dispositions de l'Article ler du present accord est regle conformement A la procedure d'arbitrage fixee aux articles 26(2), (3) et (4) et 27 du Protocole sur les Privileges et Ies Immunites de l'Organisation. —b) Tout litige survenant entre les parties au present accord en ce qui concerne son interpretation ou son application est regle conformement A la procedure d'arbitrage fixee å l'article 22 de la Convention. Si les dispositions enoncees ci-dessus vous conviennent, j'ai l'honneur de vous proposer que la presente lettre et votre reponse constituent l'accord entre le Gouvernement de la Republique Francaise et l'Organisation Europeenne pour la Mise au Point et la Construction de Lanceurs d'Engins Spatiaux relatif A l'utilisation des champs de tir francais pour la mise au point du second etage du lanceur ELDO-A (EUROPA I). 2.

Lettre du Secretaire General du Cecles au Ministere des Affaires Etrangeres Paris, le 25 novembre 1966

Monsieur le Delegue, Par lettre en date de ce jour vous avez bien voulu me communiquer ce qui suit: "J'ai l'honneur de vous proposer les dispositions suivantes ...." J'ai l'honneur de vous faire savoire que, sur instruction du Conseil de l'Organisation, je suis en mesure de vous donner mon agreement aux termes de cette lettre qui constitue done, avec la presente reponse, un accord entre l'Organisation et le Gouvernement de la Republique Francaise. Veuillez agreer, Monsieur le Delegue, ('assurance de ma haute consideration.

1I. EUROPEAN SPACE ORGANIZATION (ESRO) 1. ESRO Rules, Regulations, General Clauses, etc. As adopted during 47th Meeting of the AFC according to powers delegated by Council 1. All requests to use the stations of the ESTRACK'* network shall be addressed to the Director General of the Organization. Such requests must be forwarded by the Government of the Member State which intends to execute a special project within the meaning of Article VIII of the Convention or which sponsors such a project in the case where it is executed by a person of the The Rules were adopted in French. The text reproduced hereunder is an official ESRO translation. The Questionnaire is not reproduced here. "The use of Stations in the ESTRACK network for telemetry, position determination and tetecommand of highly eccentric orbit satellites or space sounding rockets is not covered by the present rules.

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ESRO

Member State. (The Member State or, where applicable, the person sponsored is hereinafter referred to as "the user.") 2. When requesting the use of the network stations, the Member State concerned shall specify its requirements by completing a copy of the questionnaire annexed to this document. 3. The request must reach the Organisation at least eighteen months before the date planned for the launching of the satellite. It is to be supplemented later by all the additional information needed by the Organisation to draw up a "Definition of the Operational and Technical Facilities" (DOTF) at least twelve months before the planned launching. 4. The Director General shall examine the request, taking into account in particular, the Organisation's own programme and any previous requests, as well as the provisions of the Agreement concerning the setting up of the ESTRACK network stations. Before submitting the request to the Council of the Organisation, the Director General shall, if necessary, complete it by negotiations with the user and shall then, if necessary, submit it to the appropriate subordinate bodies of the Council 5(a) The Council will make its decision on the request in accordance with Article VIII of the Convention. The Council's acceptance will be conveyed to the Member State in a letter which will: (i) contain a resume of the special project; (ii) stipulate that the Member State shall assume international legal responsibility for such project and take all the necessary steps called for under the regulations of the International Telecommunications Union; (iii) lay down the general financial conditions of such project and, where necessary, stipulate that the Member State shall guarantee the project. The Member State shall express its agreement in a letter addressed to the Director General and shall specify, where necessary, the person or body that will be responsible as user for the execution of the project. This exchange of letters will constitute an Agreement between the Member State and the Organisation. (b) The practical application of the Agreement will be governed by a Contract between the user and the Director General. This Contract shall lay down, inter aiia, the technical and financial provisions necessary for executing the project, and shall stipulate in particular, that a plan of operation shall be drawn up jointly, under the Organisation's responsibility, for issue to the bodies concerned at least three months before the launching of the satellite. A copy of this Contract shall be sent to the Member State. 6. Relations with national authorities concerning the application of the provisions governing the use of the stations shall be conducted by the Organisation itself, or with its specific agreement. 7. Any special work or installations required at a station must be approved by the Organisation, which will supervise, and may undertake the execution of such work. The cost of such work or installations shall be borne by the user. The Organisation will have the right to request that the station be restored to its original condition. If it does not exercise this right, the parties shall determine the conditions under which the Organisation shall retain the special installations.

321

Section III — Treaties 8. The Organization may, on the request of the user, cover the third-party liability of the user for damages arising from his activities under the special Agreement by an insurance, the premiums of which shall be reimbursed to the Organisation. 9(a) The Organisation and the user undertake to use their best endeavours to ensure the execution of the operations forming the subject of the Agreement. If an operation cannot be carried out on the planned date, the Organisation will endeavour to carry it out later. No compensation shall be claimed by either party from the other for any delay, cancellation, or unsatisfactory results, that may be the outcome of difficulties encountered in the execution of their respective obligations, including the case where these result from the action or inaction of a third party whose co-operation was necessary for execution of the project. (b) The operation shall be carried out by the personnel of the stations in accordance with orders received from the Organisation. However, where the Contract so provides, representatives of the user may be attached to the Control Centre and the stations. In this event the plan of operations shall define the respective operational responsibilities. 10(a) Apart from the cost of work defined in Article 7, the cost of handling a satellite pass for telemetry or tracking operations is given by the following formula (French):

C_

(D+O)45 XKrp_ (A+F)45 X 365 X 24 X 60 365 X 24 X 60 L

in which

D = average annual depreciation of a station (civil engineering work being amortised over 10 years and equipment over 5 years, in each instance from the date of entry into service), and 0 = average annual operating cost of a station. The averages referred to above are obtained by dividing the total for the whole network by the number of individual stations, stations that perform two functions (telemetry and tracking) counting as two stations. K=2 for the first 1800 passes K — 1.5 for the next 900 passes K=1 for all subsequent passes

handled by the Organisation in the course of the year.

(b) The method of calculating the cost only applies to satellite passes involving immobilisation of the station concerned for a period of 45 minutes or less. (c) The method of payment shall be defined in the Contract. 11. The user shall undertake to abide by all ESRO rules and regulations in force at the stations. 12. The magnetic tapes on which the measurements have been recorded shall be the property of the user. All intellectual property rights concerning this information shall also be vested in the user. The magnetic tapes shall be supplied by the user, or their cost shall be reimbursed by the user to the Organisation. The cost of despatching the tapes shall be borne by the user or reimbursed by him to the Organisation.

322

ESRO 13. The user undertakes to give the Organisation the right of access to the raw and the reduced data and to the scientific results obtained during the operations and the right to use these data and results exclusively for scientific and technical purposes. The Organisation shall make use of this information only after a period to be laid down. 14. The Contract shall specify the applicable law. 15(a) Any dispute arising out of the interpretation or application of the Contract shall at the request of either party be submitted to arbitration. (b) The Contract shall specify the country where the arbitration tribunal shall sit. (c) Unless the Contract provides otherwise, any dispute arising therefrom shall be settled in accordance with the Rules for Conciliation and Arbitration of the International Chamber of Commerce, by one or more arbitrators appointed in accordance with those Rules. (d) If the Contract provides for arbitration, other than that laid down by the Rules for Conciliation and Arbitration of the International Chamber of Commerce, the Arbitration Tribunal shall be that of the country referred to in 15(b). (e) No appeal shall lie against the award of the Arbitration Tribunal, which shall be final and binding on the parties. The execution of the award shall be governed by the Rules of Procedure in the country of its execution. 2. Principles Governing the Policy and Practice of the Organisation in the Field of Intellectual Property Rights (As adopted by the ESRO Council during its 18th Session) I. GENERAL The policy of the Organisation in field of intellectual property rights shall be governed by the principles stated in the following. Subject to such modifications thereof as may from time to time be agreed by the Council, the practice of the Organisation in relation to intellectual property rights and any rules and conditions established in that connection shall be consistent with these principles. 2.

DEFINITION OF INTELLECTUAL PROPERTY RIGHTS

The term "Intellectual Property Rights" as used herein is to be understood as applying in the widest sense to rights of protection of intellectual property, including not only rights under patents for inventions and similar forms of statutory protection such as utility models and registered designs, but also copyrights and any other right of protection of intellectual property. 3. AVAILABILITY OF SCIENTIFIC AND TECHNICAL RESULTS OF THE ORGANISATION'S ACTIVITIES

In accordance with Article III of the Convention, information covering scientific and technical results arising from work done by or on behalf of the Organisation should normally be made generally available in some manner to the whole scientific, technical, industrial and commercial community. It is in the spirit of the Convention that these results should also be available for use at least within the circle of the Member States and their "persons",* without obstruction by intellectual property rights arising from such work. "Reference herein to "persons" of Member States is intended to include individuals, companies and organisations under the jurisdiction of and resident in the territory of any Member State.

323

Section 111— Treaties It is recognised, however: (a) that the ability of the Organisation to make results available for use in the fullest and freest sense may be limited by the existence of intellectual property rights of which the Organisation is obliged to take account, and the need in special cases temporarily to defer disclosure of information to avoid prejudice to the obtaining of valid patent rights; (b) that in the case of contracts placed with commercial contractors it is necessary to reconcile the Organisation's ideal of general availability with the need to encourage such contractors to undertake work for the Organisation and the reasonable needs of such contractors to protect their commercial interests. 4.

EXERCISE OF RIGHTS HELD BY THE ORGANISATION

4.1 Having regard to the requirements of Article III of the Convention, as interpreted in paragraph 3 above, the Organisation must authorise Member States and their "persons" to exercise freely and without charge any rights which it holds and which it can permit to be exercised without payment, whether these rights have arisen from intramural activities of the Organisation and are wholly owned by it, or have been acquired from a third party with the right to permit their exercise by others. 4.2 The authorisation of Member States and their "persons" to exercise rights of the Organisation will be without territorial or other limitations (except so far as the Organisation has acquired its rights subject to such limitations) but except by arrangement will be limited to exercise by the Member State or "person" authorised, as the case may be. However, the Organisation should also collaborate with Member States and their "persons" in enabling its rights to be made available through them to non-Member States or parties therein on suitable terms (see para. 4.3). 4.3 The question of charging for the exercise of the rights of the Organisation by parties outside the membership of the Organisation should be considered in the light of the circumstances of the case. In general, such parties should be expected to give a fair exchange when rights are made available to them by the Organisation, and the possibility that this should be in the form of payment is not to be excluded, but it should also be considered in such cases whether the Organisation's rights would not be better used as a basis for negociating a reciprocal arrangement. 5.

PATENTING OF STAFF INVENTIONS

5.1 In general it is not the intention of the Organisation to pursue a policy of patenting all patentable staff inventions, but the Director General is authorised to take patent action on a case-by-case basis when in his view it is in the interests of the Organisation to do so. Patent action may also be taken on the direction of the Council. 5.2 In order to ensure that the Organisation shall not be restricted in its ability to fulfill the requirements of the Convention and of paragraph 4 above, the Organisation must be in a position at its discretion to exercise full control over the disposition of the rights in staff inventions and the terms of employment of staff must provide accordingly. It follows that it will not normally be admissible for staff members to retain these rights or to be entitled to payment for their exploitation, but this need not exclude the payment of awards to staff inventors if the circumstances warrant it.

324

ESRO 6.

INTELLECTUAL PROPERTY RIGHTS TO BE OBTAINED IN CONTROLS

6.1 In contracts involving an element of research, development or experiment, as required by the spirit of the Convention, there should be obtained as far as is reasonably practicable sufficient rights of dissemination and use of technical results arising from the performance of the contract to enable those results to be made effectively available in the widest sense, without obstruction due to the assertion of intellectual property rights arising from such performance. 6.2 In considering for the purpose of paragraph 6.1 what rights it is reasonably practicable to obtain it is proper to have regard to the reasonable needs of contractors for the protection of their own interests, more particularly in background information made available by them in fulfilment of their contracts, and to the need to afford to contractors such incentives to the acceptance of contracts as may be consistent with the needs of the Organisation, taking account of the character of the work concerned and the purposes of the Organisation in promoting it. 6.3 Having regard to the considerations set out in paras. 6.1 and 6.2 it will be proper, as standard practice, for ownership of intellectual property rights to be left with the contractor and for the rights obtained under the contract to be limited to secure that technical results generated in the performance of the contract shall be available for use free of charge to the Organisation and Member States only within the field of space research and space technology, with the right to grant sub-licences only in the field of space research and space technology. The right of Member States to grant sub-licences shall be limited only to their "persons." 6.4 In contracts requiring the application or generation of commercially valuable industrial techniques or manufacturing designs, as opposed to information of general scientific interest, it will be proper for the Organization's right of dissemination of the results of work to be subject to limitations designed to safeguard the commercial interests of the originator and to limit the use of the results to the persons and purposes agreed. 6.5 Conditions governing the rights of the Organisation and the Member States and their "persons" in the results of a contract which are less favourable than those stated in paragraph 6.3 are not to be accepted except on the authority of the Director General, who will give his authorisation only if he is satisfied that the purposes of the Organisation cannot otherwise be achieved. 7.

REPRODUCTION RIGHTS

In contracts for the development of material and articles the Organisation should obtain the right to reproduce the material and articles, and all technical means and background intellectual property rights necessary for the reproduction, for itself and its Member States only within the field of space research and space technology, but this right should be secured on terms which will assure the original contractor of fair treatment in the allocation of further contracts concluded with a view to exercising the right of reproduction; of fair compensation for the use of any background intellectual property rights and technical means of his which may be involved; and that these background intellectual property rights and technical means will be safeguarded from use for other purposes. 8.

INFRINGEMENT OF THIRD PARTY RIGHTS

8.1 In supply contracts dealing with non-standard products the Organisation should normally insert a total guarantee clause, whereby the contractor shall

325

Section III — Treaties indemnify the Organisation from and against all claims, proceedings, damages, costs and expenses, arising from infringement of intellectual property rights, which may be made or brought against the Organisation or to which the Organisation may be put by reason of such supply or use or alleged supply or use. 8.2 In contracts for development the contractor should normally be required to inform the Organisation of the existence of intellectual property rights known to him affecting the use of the results and be made liable for damages arising from infringement of these or any other rights by the Organisation or the Member States when exercising rights granted to them under the contract. 8.3 Furthermore, in both cases the contract should provide that, in the event of contention, the contractor must, after formal notice by the Organisation, take all necessary steps within his competence to end such contention.

IlI. BILATERAL AGREEMENTS CONCLUDED BY ESRO A. ESRO—NETHERLANDS

Agreement between the European Space Research Organisation and the Kingdom of the Netherlands on the Establishment and Operation of the European Space Technology Centre The European Space Research Organisation, on the one part, and the Kingdom of the Netherlands, on the other part, Whereas the European Space Technology Centre referred to in Article VI (a) of the Convention for the Establishment of a European Space Research Organisation opened for signature in Paris on 14th June 1962, is to be established at Noordwijk (Netherlands) in pursuance of a resolution adopted at the Conference of Plenipotentiaries held in Paris on 14th June 1962, and amended by the Decision of 22nd October 1964 of the Council of the said Organisation, Whereas an Agreement on the establishment of the European Space Technology Centre shall be concluded between the European Space Research Organisation and the Kingdom of the Netherlands in pursuance of paragraph 3 of Article XIV of the said Convention, Whereas, in pursuance of Article 30 of the Protocol on Privileges and Immunities of the European Space Research Organisation opened for signature in Paris on 31st October 1963, a Complementary Agreement may be concluded between the Organisation and the Kingdom of the Netherlands to give effect to the provisions of the Protocol as regards the Netherlands, and other arrangements too, may be made to ensure the efficient functioning of the Organisation and to safeguard its interests, Desirous of making all the provisions necessary or desirable for the establishment and functioning of the said Centre, Have agreed as follows: Article 1 In this Agreement a) the term "Organisation" shall mean the European Space Research Organisation;

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the term "State": the State of the Netherlands; the term "Convention": the Convention for the Establishment of a European Space Research Organisation opened for signature in Paris on 14th June 1962; d) the term "Centre": the European Space Technology Centre; e) the term "Government": the Netherlands Government; f) the term "Protocol": the Protocol on Privileges and Immunities of the European Space Research Organisation opened for signature in Paris on 31st October 1963. b) c)

PART I Establishment of the Centre Article 2 (1) An "erfpachtsrecht" and a "recht van opstal," both within the meaning of Netherlands law, shall be created in favour of the Organisation by a notarial deed in respect of the site situated in the municipality of Noordwijk and marked by shading on the map attached to Annex I to the present Agreement. The notarial deed shall be entered in the appropriate public registers as soon as possible after the entry into force of the present Agreement. (2) The notarial deed referred to in paragraph 1 of this Article shall stipulate, inter alfa, that: a) the "canon" (annual charge) will amount to one guilder; b) the "erfpachtsrecht" and "recht van opstal" will be of the same duration as the present Agreement without prejudice to Article 30 of the Agreement; c) Article XIX of the Convention will apply on the expiry of the "erfpachtsrecht" and "recht van opstal" in the event of the termination of the present Agreement in pursuance of Article 31 of the Agreement as a result of the dissolution of the Organisation; in this case the State shall pay to the Organisation the value of the buildings and installations erected on the site, this in conformity with the relevant provisions of the Netherlands Civil Code, it being understood that the State shall never have to pay more than covers the benefit redounding to the State from the change of ownership; if, however, no suitable use can be made of the buildings and installations concerned by reason of national town and country planning requirements, the Organisation will be under an obligation to remove the buildings and installations at its own expense; d) on the expiry of the "erfpachtsrecht" and "recht van opstal" in the event of the termination of the present Agreement as a result of the denunciation by the Kingdom of the Netherlands of the present Agreement in pursuance of Article 29 of the Agreement, the State and the Organisation will determine by common accord the terms on which the buildings and installations erected on the site will change hands; if within a period of twelve months after the termination of the present Agreement no such accord has been reached, the Organisation will remove at its own expense the buildings and installations and will hand over the site to the State in good condition and to the satisfaction of the State; e) Article XVII of the Convention will apply on the expiry of the "erfpachtsrecht" and the "recht van opstal" in the event of the termination of the present Agreement in pursuance of paragraph I of Article 30 of the Agreement; 327

Section III — Treaties f) on the expiry of the "erfpachtsrecht" and "recht van opstal," the State will have the option to purchase within six months any surplus movable equipment belonging to the Organisation in the Netherlands. (3) The notarial deed will also specify that, if the Organisation does not waive its immunity in accordance with Article 14(a) of the present Agreement, any dispute relating to the interpretation or application of the provisions of the notarial deed shall at the request of either party be submitted to private arbitration on the lines of Article 25 of the Protocol. The arbitral award will be given by three arbitrators, of which one appointed by the State, one by the Organisation and the third, who will be the chairman, by the said two arbitrators. If, within three months from the date of submission to arbitration, either party fails to appoint the arbitrator referred to above, the President of the Supreme Court of the Netherlands will be invited to nominate the arbitrator at the request of the other party. The same procedure will be resorted to at the request of either party, if, within one month from the date of the appointment of the second arbitrator, the first two arbitrators are unable to agree on the appointment of the third arbitrator. The arbitrators will hold their meetings in the Netherlands. The law applicable and the procedure of the arbitration will be that of the Netherlands. There shall be no right of appeal against the award of the arbitrators. In case of a dispute concerning the import or scope of the award it shall be incumbent upon the arbitrators to interpret it at the request of either party. Article 3 (1) The Government undertakes to carry out, at its own expense, the obligations in connection with the site referred to in paragraph 1 of Article 2 of the present Agreement, as set out in Annex II to the present Agreement. (2) The Government shall be kept regularly informed by the Organisation of such chemical substances as may be discharged into the drains of the Centre and of the approximate quantity and temperature of the effluent. (3) The Organisation shall take reasonable precautions to ensure that during any construction on the site no damage whatsoever is done to local agricultural interests. Article 4 (1) The Government shall arrange for the necessary building licences to be issued for the buildings and installations the Centre requires for its operations. (2) The Government shall ensure that the Organisation can make use of the radio frequencies the Centre requires for its operations. These frequencies shall be chosen by the Organisation in agreement with the competent Netherlands authorities and in accordance with the rules of the International Telecommunications Union. The competent Netherlands authorities shall be responsible for taking any necessary national or international steps. The Organisation shall enjoy the same protection as the State's radiocommunications with regard to any harmful interferences caused by radio transmissions under its control and, as far as possible, by electrical equipment and installations outside the Centre. In accordance with the rules of the International Telecommunications Union, the Government shall use its best endeavours to have any harmful interference, caused by radio transmissions that are not under its control, eliminated.

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(3) The Organisation shall be consulted if in future a new air traffic lane would have to pass over the site. Article 5 The Government undertakes to lend its assistance in obtaining educational facilities for the children of staff members of the Organisation, should such assistance be required. PART II General conditions

Article 6 (1) The Government retains the right to take all precautionary measures necessary in the interests of the security of the State. Should the Government take any such precautions, it shall approach the Organisation as soon as circumstances allow, in order to determine what steps should be taken to safeguard the Organisation's interests. (2) The Organisation shall collaborate with the Netherlands authorities to avoid any prejudice to security resulting from the activities of the Organisation. Article 7 Subject to the provisions of the Protocol, the activities of the Organisation, of its agents and of the persons referred to in Article 17 of the Protocol, in the Netherlands shall be governed by Netherlands law. Article 8 (1) The Organisation shall be responsible for any injury or damage resulting from the activities on Netherlands territory of the Organisation, of its agents and of the persons referred to in Article 17 of the Protocol, acting or failing to act within the limits of their functions. This liability shall be governed by Netherlands law, subject to the provisions of the Protocol. (2) The Organisation shall hold the Government harmless from any obligation arising out of an award that may have been made against the Government at the request of a third party, as a consequence of the activities mentioned in paragraph 1 of this Article. Article 9 For the implementation of Articles 7 and 8 of this Agreement, the Organisation shall be deemed to have its domicile at the Centre. Article 10 (1) The Organisation shall cover its liabilities under Article 8 of this Agreement by insurance. (2) The insurance policy shall be taken out with an insurance company authorized to do indemnity insurance business in the Netherlands. (3) The terms of the insurance policy shall be determined in consultation with the Netherlands authorities. (4) The insurance contract shall provide for the right for any person suffering injury or damage for which the Organisation is liable to bring an action for compensation directly against the insurer.

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Section III — Treaties Article 11 Any special project carried out under Article VIII of the Convention, shall for the purpose of this Agreement, be considered part of the activities of the Organisation. Article 12 A joint consultative committee shall be established to facilitate the implementation of this Agreement by consultation between the Netherlands authorities concerned and the Organisation. The chairman of the committee shall be appointed by the Government. PART III Privileges and immunities Article 13 For the pursuit of its official activities within the territory of the Netherlands, the Organisation shall enjoy the privileges and immunities defined in the Protocol in accordance with the provisions for its implementation, as contained in this Part. Article 14 The Organisation a) shall waive its immunity of jurisdiction and execution in the case of a dispute relating to the interpretation or application of the provisions of the notarial deed referred to in Article 2 of the present Agreement, unless in the opinion of the Council of the Organisation, the matter involves a principle of such importance that it cannot agree to waive its immunity; b) shall ensure that paragraph 1 (a) of Article 4 of the Protocol is applied in such a manner that in any case of a dispute covered by paragraph 1 of Article 26 of the Protocol, the value of which in litigation does not exceed 10.400 units of account, and which cannot be settled by agreement, the immunity shall be waived, unless, in the opinion of the Council of the Organisation, the matter involves a principle of such importance that it cannot agree to waive its immunity. Article 15 (1) The exemption referred to in paragraph 1 of Article 5 of the Protocol shall also apply to all direct taxes, dues and levies imposed by a province, municipality or "waterschap" without prejudice to the provisions of paragraph 3 of the said Article. (2) The Organisation shall, on application, be granted exemption from motorvehicle tax in respect of its motor-cars used for official purposes. Article 16 (1) The following taxes and duties shall be considered to fall under paragraph 2 of Article 5 of the Protocol, on the date of the signature of the present Agreement: a) Turnover tax on goods supplied or services rendered to the Organisation; b) Excise duties on goods; c) Importation taxes on goods that are in free circulation in the Netherlands; d) Registration dues and stamp duties.

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(2) Regulations concerning the application of paragraph 1 of this Article shall

be agreed upon in writing between the competent Netherlands authorities and the Organisation. Such regulations can be modified from time to time in the light of experience gained. Article 17 (1) The Organisation shall be granted direct exemption from all taxes, dues and levies imposed upon or in respect of importation of the goods referred to in Article 6 of the Protocol. (2) Goods imported, exported or transferred in accordance with Article 6 and paragraph 2 of Article 9 of the Protocol may, if they are transported by a courier as hand luggage, be declared for importation and exportation, in accordance with special arrangements to be made between the appropriate Netherlands authorities and the Organisation. Article 18 (1) If the Organisation should sell or give away any of the goods referred to in paragraph 1 of Article 9 of the Protocol to a third party, it shall declare the goods for importation and pay the taxes, dues and levies in respect of such goods.

(2) The value stated on the declaration for importation shall be the value of the goods on the date of declaration; the tariff in force on the date of declaration shall apply to such goods. (3) If the Organisation intends to sell or give away any of the goods referred to in paragraph 1 of Article 9 of the Protocol to a third party, it shall consult with the competent Netherlands authorities in so far as the Government considers the exportation of the goods to affect the international obligations of the Netherlands. Article 19 (1) Shall be deemed to be official communications within the meaning of Article 12 of the Protocol inter alia, letters and other forms of communication addressed to the Centre, or to the persons referred to in Articles 15, 16 and 17 of the Protocol who discharge their functions in the Netherlands, and sent by other Establishments of the Organisation, international institutions or by authorities of the Member States of the Organisation, and letters and other forms of communication despatched by the Centre or by the aforementioned persons to other Establishments of the Organisation, international institutions or to authorities of the Member States of the Organisation.

(2) The Organisation may despatch the letters and other forms of communication referred to in the first paragraph of this Article, in a closed bag in accordance with arrangements to be made between the appropriate Netherlands authorities and the Organisation. (3) It is not possible for the Organisation to use for its telegraphic or telex messages any code or cipher system which is known to the Post Office authorities as prohibited in the country of destination.

Article 20 The persons referred to in Articles 15 and 16 of the Protocol who discharge their functions in the Netherlands shall not be refused permission to avail themselves of housing accommodation, subject to the provisions of the Decree of the Minister of Social Work of the Netherlands dated 25th November 1964, No. U51853. 331

Section 111— Treaties Article 21 The term "representatives of Member States" in Article 14 of the Protocol shall be deemed to include all the representatives and alternate representatives attending meetings of the Council of the Organisation and of its subordinate bodies. Furthermore, it shall be clearly understood that if the President and the Vice-Presidents of the Council, the Chairman and the Vice-Chairmen of the subordinate bodies and the members of the Audit Commission cease to act as national representatives, they shall remain covered by the provisions of Article 14 of the Protocol. Article 22 (1) In application of Article 15 of the Protocol, the Director General of the Organisation shall enjoy, while discharging his functions in the Netherlands, the privileges and immunities to which the head of a diplomatic mission is entitled under the provisions of the Vienna Convention on diplomatic relations. (2) In addition to the privileges and immunities provided in Article 16 of the Protocol, the official referred to in paragraph 1 (c) of Article XI of the Convention shall enjoy, in application of Article 15 of the Protocol, while discharging his functions in the Netherlands, the privileges and immunities to which a diplomatic agent is entitled under the provisions of the Vienna Convention on diplomatic relations. Article 23 The staff members of the Organisation who discharge their functions in the Netherlands: shall not require working permits; shall not require residence permits, nor shall they be subject to the regulations in respect of aliens' registration, provided they hold personal identity cards as described under d); c) shall be granted the facility referred to in Article 20 of this Agreement on showing the personal identity cards described under d); d) shall each have a personal identity card issued by the Organisation showing names, date and place of birth, nationality, number of passports (aliens only), photograph and signature; the identity cards shall be certified by the Minister of Foreign Affairs of the Kingdom of the Netherlands; e) shall not be subjected to the application of the provision in respect of point 6 contained in Article 33 of the "Besluit Bevolkingsboekouding" (Population Registers Administration Decree, 31st March 1936, Bulletin of Acts, Orders and Decrees, No. 342); f) shall enjoy the same foreign currency facilities as do the officials of foreign diplomatic missions in the Kingdom of the Netherlands; consequently, they shall be treated as residents within the meaning of Article 2, under d), of the "Deviezenbekendmaking 2/61" (Foreign Currency Order 2/61, 11th September 1961, Supplement to the Netherlands Government Gazette No. 179 of 14th September 1961). Article 24 The Government may exercise the right described in the latter part of the second sentence of paragraph 1 of Article 18 of the Protocol. a) b)

Article 25 (1) The Organisation, its Director General and the Staff Members to whom the Organisation's social security scheme applies shall be exempt from all corn332

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pulsory contributions to the Netherlands social security organisations. Consequently, they shall not be covered against the risks described in the Netherlands social security regulations. (2) The Centre shall provide the board of the "Sociale Verzekeringsbank" (Social Insurance Bank) with relevant information concerning persons not insured under the provisions of the previous paragraph in pursuance of the "Algemene Ouderdomswet" (General Old Age Pension Act, 31st May 1956, Bulletin of Acts, Orders and Decrees No. 281). Article 26 (1) Any person authorized to enter any place under any legal provision or on the strength of the law as described in paragraph 1 of Article 22 of the Protocol, shall not exercise that authority in respect of the site referred to in Article 2 of the present Agreement unless permission to do so has been given by or on behalf of the Director of the Centre, acting under powers permanently delegated by the Director General. (2) The Director of the Centre, or the person acting on his behalf, shall give his consent forthwith if the person referred to in paragraph 1 of the present Article a) has written authority given by the Attorney-General of the Court of Justice at The Hague; b) is a Public Prosecuter, or an examining magistrate, or is authorized to enter any place against the will of the rightful occupier in pursuance of Section 22 of the "Wet buitengewone bevoegdheden burgerlijk gezag" (Civil Authority (Extraordinary Powers) Act, 23rd June 1952, Bulletin of Acts, Orders and Decrees No. 361) or in pursuance of the "Oorlogswet voor Nederland" (Netherlands War Act, 16th July 1964, Bulletin of Acts, Orders and Decrees No. 337). Article 27 (1) Netherlands subjects discharging their functions in the Netherlands shall not enjoy the privileges and immunities described under (a), (c), (f) and (g) of paragraph 1 of Article 14, in Article 15, under (e) and (g) of Article 16, and under (c) of Article 17 of the Protocol and under (c) of Article 23 of the present Agreement. (2) The Netherlands subjects, referred to in Articles 15 and 16 of the Protocol, whose names have, by reason of their duties, been entered on a list drawn up by the Director General of the Organisation and approved by the Minister of Defence of the Kingdom of the Netherlands, shall be exempt from military service. In the event of other Netherlands subjects being called up for military service, the Minister of Defence of the Kingdom of the Netherlands shall, at the request of the Director General of the Organisation, grant them such deferment as will be necessary to avoid the interruption of essential work. PART IV Final provisions Article 28 Each Party shall notify the other of the completion of the formalities required on its part with a view to the entry into force of the present Agreement, which will take place thirty days after the date of the last notification.

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Section 111 — Treaties Article 29 The Kingdom of the Netherlands shall have the right to denounce the present Agreement if the site referred to in paragraph 1 of Article 2 of the present Agreement is either not being used for the Organisation's purposes as described in Articles II, VIII and XIII of the Convention or will evidently no longer be used at all. In this case, the present Agreement shall terminate one year after the date on which the Kingdom of the Netherlands gave notice of the denunciation to the Organisation. Article 30 (1) In the event of the Kingdom of the Netherlands denouncing the Convention, in accordance with paragraph 1 of Article XVII of the Convention, the present Agreement shall terminate on the date on which the denunciation takes effect. (2) On the termination of the present Agreement in accordance with paragraph 1 of the present Article, the Government is prepared to enter forthwith into negotiations with the Organisation with a view to concluding a special agreement within the meaning of paragraph 2 of Article XVII of the Convention. (3) Pending the outcome of these negotiations the provisions of this Agreement and of the notarial deed referred to in Article 2 of the present Agreement, and the rights and obligations deriving therefrom, shall remain applicable. Article 31 In the event of the dissolution of the Organisation under the terms of the Convention, the present Agreement shall terminate on the date of dissolution. Article 32 (1) Any dispute arising out of the interpretation or application of this Agreement that cannot be settled between the Parties in any other way shall be submitted to arbitration at the request of either Party. (2) The award shall be given by three arbitrators. One arbitrator shall be appointed by the Government, one by the Organisation and a third arbitrator, who shall be the Chairman, shall be appointed by the said two arbitrators. (3) The arbitrators shall be appointed from the panel referred to in paragraph 2 of Article 27 of the Protocol. (4) If within three months from the date of submission to arbitration either Party fails to appoint the arbitrator referred to in paragraph 2 of his Article, the President of the International Court of Justice shall be invited to appoint the arbitrator at the request of the other Party. The same procedure shall be resorted to at the request of either Party, if within one month from the date of the appointment of the second arbitrator the first two arbitrators are unable to agree on the appointment of the third arbitrator. (5) The arbitration procedure to be followed shall be that provided for in paragraph 4 of Article 27 of the Protocol. (6) There shall be no right of appeal against the award of the arbitrators; it shall be final and binding on the Parties. In case of a dispute concerning the import or scope of the award it shall be incumbent upon the arbitrators to interpret it at the request of either Party. IN WITNESS WHEREOF the undersigned representatives, being duly authorized thereto, have appended their signatures to this Agreement.

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ESRO DONE at The Hague this second day of February 1967, in two original copies in the English, French and Netherlands languages, the three texts being equally authoritative.

Annex I to the Agreement between the European Space Research Organisation and the Kingdom of the Netherlands on the Establishment and Operation of the European Space Technology Centre Description of the site referred to in Article 2 of the Agreement Annex II to the Agreement between the European Space Research Organisation and the Kingdom of the Netherlands on the Establishment and Operation of the European Space Technology Centre Description of the obligations of the Netherlands Government referred to in paragraph 1 of Article 3 of the Agreement official translation The Hague, 2nd February 1967. Your Excellency, With reference to the Agreement between the European Space Research Organisation and the Kingdom of the Netherlands on the Establishment and Operation of the European Space Technology Centre, which Agreement was signed today, I have the honour to propose that the provisions of that Agreement be made to apply, mutatis mutandis, to the European Space Research Laboratory to be established at Noordwijk (Netherlands) in pursuance of the decision of the Council of the European Space Research Organisation, taken on 28th July 1965. If this proposal is acceptable to the Government of the Kingdom of the Netherlands, I also have the honour to propose that this letter and Your Excellency's reply, if it is in the affirmative, constitute an agreement between the Organisation and the Kingdom of the Netherlands on this subject, and take effect on the date of the entry into force of the Agreement referred to above. I avail myself of this opportunity to renew to Your Excellency the assurance of my highest consideration. His Excellency Mr. J. M. A. H. Luns, Minister of Foreign Affairs of the Kingdom of the Netherlands, The Hague. official translation The Hague, 2nd February I967. Sir, I have the honour to acknowledge receipt of your letter of today's date, reading: "With reference to the Agreement between the European Space Research Organisation and the Kingdom of the Netherlands on the Establishment and Operation of the European Space Technology Centre, which Agreement was signed today, I have the honour to propose that the provisions of that Agreement

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Section 111 — Treaties be made to apply, mutatis mutandis, to the European Space Research Laboratory to be established at Noordwijk (Netherlands) in pursuance of the decision of the Council of the European Space Research Organisation, taken on 28th July 1965. If this proposal is acceptable to the Government of the Kingdom of the Netherlands, I also have the honour to propose that this letter and Your Excellency's reply, if it is in the affirmative, constitute an agreement between the Organisation and the Kingdom of the Netherlands on this subject, and take effect on the date of the entry into force of the Agreement referred to above." I have the honour to inform you that the proposals set forth in the abovementioned letter are acceptable to the Government of the Kingdom of the Netherlands, so that your letter and this reply shall constitute an agreement between the Kingdom of the Netherlands and the Organisation concerning the European Space Research Laboratory, which agreement shall take effect on the date of the entry into force of the Agreement between the Kingdom of the Netherlands and the European Space Research Organisation on the Establishment and Operation of the European Space Technology Centre. I avail myself of this opportunity to renew to you the assurance of my high consideration. Prof. P. Auger, Director General of the European Space Research Organisation, The Hague.

B. ESRO—NORWAY AGREEMENT

Between the Government of Norway and the European Space Research Organisation concerning the Kongsfjord Telemetry Station on Svalbard on the one part and THE EUROPEAN SPACE RESEARCH ORGANISATION

(hereinafter referred to as "the

Organisation" ) on the other part CONSIDERING the contract (hereinafter called "the Contract"), signed on 13th and 30th August 1965 respectively, by the Organisation and by the Royal Norwegian Council for Scientific and Industrial Research (hereinafter referred to as "the Research Council") concerning the construction and operation of a telemetry station on Svalbard (Spitzbergen),

to promote space research for peaceful purposes as stated in Article II of the Convention for the establishment of a European Space Research Organisation dated 14 June 1962, DESIRING

HAVE AGREED AS FOLLOWS:

Article I 1. The Government of Norway shall authorise the Research Council, under conditions laid down in the Contract: a) to establish and to operate for peaceful purposes a telemetry station on Svalbard (Spitzbergen) in or near Ny Alesund;

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ESRO b) to carry out telemetry operations for the Organisation in conformity with the scientific and technical needs of its programme of space research. 2. The Government of Norway approves the Contract. Amendments or additions to, or prolongation of, the said Contract shall only be made with the consent of the Government of Norway. Article II 1. The Organisation shall provide the Government of Norway with any information the latter may deem necessary in order that it may ascertain the nature of the station's activities and their conformity with this Agreement, the Contract and Norwegian laws and regulations 2. The Government of Norway may, for the purpose of implementing the provisions of paragraph 1 of this Article, make the necessary arrangements with the Research Council, providing in particular for the appointment of observers to be included among the personnel of the station. The Organisation will be informed of such arrangements. Article III 1. The Government of Norway shall use its best endeavours to ensure that the operations necessary for the scientific and technical requirements of the Organisation are performed in a satisfactory manner. 2. The Government of Norway shall allow the freedom of travel of the Organisation's personnel and experts and duty-free transit of its equipment through the Norwegian mainland. Article IV This Agreement shall enter into force on the day of its signature by both parties, and shall remain in force during the validity of the Contract. Article V If any dispute arises concerning the interpretation or application of this Agreement, the parties shall consult with a view to settling the dispute. the undersigned have appended their signature to this Agreement. Done in Paris this twenty-first day of September, 1965, in the English and French languages, both texts being equally authoritative, in two original copies.

IN WITNESS WHEREOF

C. ESRO—UNITED KINGDOM AGREEMENT

between the Government of the United Kingdom of Great Britain and Northern Ireland and the European Space Research Organization concerning the establishment and use of a Telemetry Station in the Falkland Islands. THE EUROPEAN SPACE RESEARCH ORGANISATION

(hereinafter referred to as "the

Organisation") on the one part. and THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND (hereinafter referred to as "the Government of the United Kingdom")

on the other part

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Section III — Treaties paragraphs c) and h) of Article V and paragraph d) of Article VI of the Convention for the Establishment of a European Space Research Organisation (hereinafter referred to as "the Convention"), CONSIDERING the Protocol of 31st October 1963 on the Privileges and Immunities of the Organisation, DESING to arrange for the installation of a Satellite Telemetry Station in the Falkland Islands near the Radio and Space Research Station (hereinafter referred to as "the Radio and Space Research Station"), CONSIDERING

HAVE AGREED AS FOLLOWS:

PART I SUBJECT OF THE AGREEMENT

In accordance with the provisions of this Agreement, the Government of the United Kingdom, on behalf of the Organisation, shall construct in the Falkland Islands and ensure the functioning of a Satellite Telemetry Station (hereinafter referred to as "the Station") taking into account the facilities available at the Science Research Council's neighbouring Radio and Space Research Station. Article 2 1. The Government of the United Kingdom nominates the Science Research Council of the United Kingdom (hereinafter referred to as "the SRC") as their competent authority for matters pertaining to the implementation of the present Agreement. 2. For the purposes of the application of the present Agreement, the Organisation shall enter into a Contract with the SRC for the provision and operation of the telemetry facilities in the Falkland Islands to meet the Organisation's requirements (hereinafter referred to as "the Operating Contract"). 3. The SRC shall lease to the Organisation the sites on which the buildings and facilities for the Station will be situated. In the absence of any special agreement that may be concluded in the circumstances described in paragraph 4 of Article 16 of this Agreement, such leases shall be terminated simultaneously with this Agreement. PART II DEFINITION OF FACILITIES TO BE PROVIDED

Article 3 1. The Government of the United Kingdom shall: a) construct the buildings and facilities necessary to meet the operational requirements of the Organisation, in accordance with the provisions laid down in Part I of Annex I* to this Agreement; b) undertake any modifications or extensions as may later be required by the Organisation and agreed between the parties; c) use its good offices to facilitate the conclusion of a contract between the Government of the Falkland Islands and the Organisation for the establishment and effective operation of a communication link to be provided with the Control Centre of the Organisation; • Annex I has not been reproduced.

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ESRO 2. Title to the buildings and facilities referred to in sub-paragraph la) and, if appropriate, lb) of this Article, shall be conveyed to the Organization. Article 4 1. The Organisation shall purchase and transport to its place of use in the Falkland Islands all the technical equipment, test equipment, and spares listed in Part II of Annex I to this Agreement. The installation of such equipment, and its acceptance, shall be the responsibility of the Organisation. 2. The equipment and spares referred to in paragraph 1 of this Article shall remain the property of the Organisation. These equipment and spares shall be employed in accordance with the Operating Contract referred to in Article 2. PART III FINANCIAL PROVISIONS

Article 5 The Organisation shall reimburse to the SRC, acting on behalf of the Government of the United Kingdom, the expenditure incurred in implementation of this Agreement. The financial arrangements between the parties shall be governed by the provisions of Annex II to this Agreement.* Article 6 If the Organisation wishes to carry out a special operation outside the scope of its normal operations, it shall reimburse to the SRC, acting on behalf of the Government of the United Kingdom, the relevant costs, including those for any extra staff to be engaged by the SRC, subject to prior agreement between the parties. PART IV PROVISIONS REGARDING TRANSIT OF SATELLITES AND RECORDING OF INFORMATION

Article 7 The Organisation shall inform the SRC with sufficient warning if special action exceeding normal operations is required. Both parties shall agree in advance on the special measure to be undertaken in such a case. Article 8 The Organisation shall be responsible for providing and transporting the necessary tapes or other recording materials. These tapes and materals shall remain the property of the Organisation; all intellectual property rights concerning information recorded shall be vested in the Organisation. PART V GENERAL PROVISIONS

Article 9 Any activity on behalf of third parties carried out in accordance with the provisions of the Convention shall, for the purpose of this Agreement, be considered part of the activities of the Organisation. *Annex II has not been reproduced.

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Section III — Treaties Article 10 Each party agrees to give favourable consideration to requests from the other party to use its Station and Staff in the Falkland Islands. Article 11 1. Staff members of the Organisation, or the Organisation's contractors, or representatives of scientific groups collaborating with the Organisation, shall be entitled to visit the Station. The arrangements regarding the admission of such persons shall be made in advance by both parties. 2. The Government of the United Kingdom shall take the necessary measures to facilitate the entry to the Falkland Islands of the persons referred to in paragraph 1. Article 12 The Government of the United Kingdom shall ensure that the provisions of the Protocol of 31st October 1963 on the Privileges and Immunities of the Organisation will apply in the Falkland Islands. Article 13 Annexes I and II to this Agreement form an integral part of this Agreement. Article 14 This Agreement shall enter into force on signature by both parties. Article 15 This Agreement may be revised by mutual consent at the request of either party in the event of any essential change in circumstances. Article 16 Subject to the provisions of paragraphs 2, 3 and 4 of this Article, this Agreement shall remain in force until the end of February 1972 and thereafter shall be extended automatically for periods of five years at a time. 2. Either party may give notice of termination of this Agreement one year before the expiry of any period as defined in paragraph 1 of this Article and the Agreement shall then terminate on the expiry of that period. 3. This Agreement shall terminate automatically in the event of the dissolution of the Organisation under the terms of the Convention. 4. In the event that the Government of the United Kingdom denounces the Convention, in accordance with Article XVII of the Convention, this Agreement shall terminate on the date on which the denunciation of the Convention by the Government of the United Kingdom takes effect, unless a special Agreement, according to paragraph 2 of Article XVII of the Convention is concluded for the continued use of the Station. 1.

Article 17 1. On the termination of this Agreement under paragraphs 2 or 3 of Article 16: a) the Government of the United Kingdom shall have the first option over any movable or dismountable equipment which the Organisation does not intend to remove; b) the conditions for the transfer to the Government of the United Kingdom of the immovable buildings and installations of the Organisation in the Falkland Islands and the amount of compensation for such transfer shall be

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ESRO agreed between the parties. In the event of disposal by the Organisation of those buildings and installations to third parties, the acceptance by the Falkland Islands or the United Kingdom authorities of such disposal shall be required. 2. On the termination of this Agreement under paragraph 4 of Article 16 the provisions of Article XVII of the Convention shall apply. Article 18 1. Any dispute arising out of the interpretation or application of this Agreement which cannot be settled directly between the parties may be submitted by either party to an Arbitral Tribunal. If a party intends to submit a dispute to arbitration, it shall notify the other party. 2. The Government of the United Kingdom and the Organisation shall each designate a member of the Tribunal. These two members shall designate a third member of the Tribunal who shall be its chairman. 3. If, after three months from the date of the notification referred to in paragraph 1 of this Article, either party has failed to make the designation referred to in paragraph 2 of this Article, the other party may request the President of the International Court of Justice to make this designation. The same procedure may be invoked by either party if, after one month from the date of appointment of the second arbitrator, the first two arbitrators are unable to agree on the designation of the third arbitrator. 4. The Tribunal shall determine its own procedure and where it shall meet. 5. The award of the Tribunal shall be final and binding on the parties. In cases of dispute concerning the import or scope of the award it shall be incumbent upon the Tribunal to interpret it at the request of either party. IN wrrNESS WHEREOF the undersigned, being duly authorized thereto, have signed this Agreement. Done in duplicate in Paris this twenty-fourth day of the month of November, 1967, in the English and French languages, both texts being equally authoritative.

D. ESRO—UNITED STATES EXCHANGE OF NOTES BETWEEN THE UNITED STATES OF AMERICA AND ESRO WITH RESPECT TO THE ESTABLISHMENT BY ESRO OF AN EARTH STATION ON UNITED STATES TERRITORY

1. Letter from she American Ambassador EMBASSY OF THE UNITED STATES OF AMERICA PARTS

November 28, 1966 M. Pierre Auger Director General European Space Research Organization Paris, France Dear Sir: I have the honor to refer to discussions which have recently taken place between the Government of the United States of America and the European Space Research Organization concerning the establish-

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Section III — Treaties ment and operation of a satellite telemetry/telecommand station near Fairbanks, Alaska, in connection with peaceful and scientific space activities to be undertaken by the Organization. The Government of the United States (hereinafter referred to as the United States) desires to cooperate with the European Space Research Organizaion (hereinafter referred to as ESRO) in these activities as part of their mutual efforts to foster international cooperation in the peaceful uses of outer space, and agrees to the establishment by ESRO of an earth station on United States territory for space telemetering and telecommand purposes. In furtherance of this objective the United States will use its best efforts to facilitate the necessary local arrangements by ESRO in connection with its activities in Alaska. The United States proposes that this station be established and operated in accordance with the following principles and procedures: 1. ESRO may acquire by lease an area of land and obtain appropriate easements for the establishment and operation of an earth station for space telemetering and telecommand purposes, to be located in the vicinity of the City of Fairbanks. The United States will seek to facilitate arrangements for the lease of the land and appropriate easements and will help resolve any problem which may arise in connection with the use of such land and such easements. Construction of the Station

2. ESRO will arrange for the construction of the station which is the subject of this Agreement. The costs of constructing, installing, equipping and operating the station will be borne by ESRO, including the cost of constructing or improving roads and other means of access, except to the extent that contributions may be made by State or Iocal authorities to serve public needs.

Cooperating Agency

3. The National Aeronautics and Space Administration (hereinafter referred to as NASA) is designated by the United States as Cooperating Agency with ESRO on matters pertaining to the implementation of this Agreement.

Description of the Station

4. The ESRO station will consist of installations for: Reception and recording of spacecraft telemetry signals (e.g., telemetry receiving antennae with automatic tracking receivers, pointing gear and radome, telemetry receiving assembly, PCM decommutators and display equipment, coded time generator with decoders and display equipment, graphic and magnetic recorders); Transmission of telecommand signals to spacecraft (e.g., transmission antenna and pointing gear, radome, telecommand coder and transmitter); Telecommunications with ESRO Control Center (e.g., teleprinter and associated equipment, telephone link); Processing of information, maintenance of equipment, scientific and technical measurements on the ground and other tasks ancillary to the above activity (e.g., measuring instruments, antenna command and control desk, calibration tower with antenna and assorted equipment);

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ESRO

Telecommunications

Status Of

ESRO

Privileges and Immunities Customs Duties

Accommodation of staff, equipment and stores; emergency power supply station, transformers, water supply and other services. As program requirements develop, additional equipment may be added, or existing equipment changed, at the station, consistent with the terms of this Agreement. ESRO shall notify the United States in advance of any major addition to or change in station equipment. 5. ESRO will select a contractor who will obtain, in accordance with applicable United States law, appropriate authorizations for the construction and operation of the radio transmission facilities, which authorizations will be granted by the United States subject to compliance by the contractor with applicable United States and international telecommunications regulations. The United States will act with respect to this station, in all matters concerning the International Telecommunication Union in conformity with the International Telecommunication Convention. The United States recognizes that an essential characteristic of the station is its need for freedom from harmful radio interference, including interference caused by air-ground communications, and recognizes the importance of measures to maintain this freedom insofar as practicable against the operation of radio interferenceproducing devices. The United States will take precautionary measures insofar as practicable to eliminate or minimize harmful interference to the extent such devices are subject to the control of or by the United States. In addition, ESRO will seek appropriate arrangements with the State of Alaska insofar as measures for the control of such interference fall within the jurisdiction of the State of Alaska. The area to be protected from radio interference is that area enclosed by the following points, as determined from US Geological Survey Fairbanks D-1 and D-2, Alaska, 1:63, 360 Scale Topographic Maps: Longitude 147° 32.30" W, Latitude 64° 55'4" N, 64° 56'38" N, " 147° 32'30" W, 71 64° 56'38" N, 147° 31'00" W, 64° 57'21" N, " 147° 31'00" W, " 64° 57'21" N, 147° 27'30" W, " 64° 55'4" N, 147° 27'30" W. 6. ESRO shall, to the extent consistent with the instrument creating it, possess the capacity in the United States to contract, to acquire and dispose of real and personal property, and to institute legal proceedings. 7. ESRO and its personnel shall be accorded the status privileges, exemptions and immunities indicated in the following subparagraphs: A. The United States will, upon request, take the necessary measures to facilitate the admission into the United States of maerial, equipment, supplies, goods or other items imported by or for the account of ESRO in connection with the station and ESRO programs. Such shipments shall be accorded such exemption from

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Section Ill — Treaties

Title to Property

customs duties and internal-revenue taxes imposed upon or by reason of importation, and such procedures in connection therewith, as are accorded under similar circumstances to foreign governments. B. Title to all materials, equipment or other items of property used in connection with the station and ESRO programs will remain in ESRO. Material, equipment, supplies, goods or other property of ESRO may be removed from the United States at any time by ESRO free of taxes or duties.

Inviolability and Immunity from Search

C. The archives of ESRO shall be inviolable. The property and assets of ESRO shall, subject to police and health regulations, and applicable United States regulations with regard to radio station inspections, be immune from search, unless ESRO expressly waives such immunity, and from confiscation.

Judicial Immunity

D. ESRO, its property and assets, shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that ESRO may expressly waive its immunity for the purpose of any proceedings or by the terms of any contract.

Other Privileges of ESRO

E. ESRO shall be exempt from the following taxes levied by the United States: federal income tax; federal communications taxes on telephone, telegraph and teletype services in connection with the operation of the station; and federal tax on tickets for air transport of ESRO officers and employees which are purchased by ESRO or ESRO officers and employees in connection with official travel to and from the station.

Privileges of Personnel

F. The United States will facilitate the admission into the United States of such ESRO officers and employees and their families, as may be assigned to or visit the station. ESRO and its officers and employees shall have the same privileges and immunities as those accorded by the United States to officers and employees of foreign governments with respect to laws regulating entry into and departure from the United States, alien registration and fingerprinting, and registration of foreign agents. Officers and employees so assigned shall not exceed in number those necessary for the construction and effective operation of the station. ESRO will communicate their names to the United States in advance of entry. Baggage and effects of ESRO officers and employees assigned to the station may be admitted, when imported in connection with the arrival of the owner, into the United States, and may be removed from the United States free of customs duties and internal-revenue taxes imposed upon or by reason of importation. Such effects having a significant value shall be sold or otherwise disposed of in the United States only under conditions approved by the United States. Such ESRO personnel shall be exempt from the payment of United States income tax and federal insurance contributions on wages and expenses paid by ESRO. The privileges and immunities set forth in this subparagraph shall not apply to citizens of the United States or foreign nationals admitted into the United States for permanent residence. However, officers and employees of ESRO, whatever their nationality, shall be immune from suit and legal

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ESRO process relating to acts performed by them in their official capacity and falling within their functions except insofar as such immunity may be waived by ESRO. Automobile Insurance

8. ESRO will ensure that adequate automobile liability insurance is obtained for any of its personnel who operate automobiles in Alaska and will obtain such insurance for any automobiles which ESRO may purchase, lease or borrow. Notwithstanding any other provision of this Agreement, ESRO will waive any immunity which it might otherwise claim with respect to any suit or legal process alleging liability covered by such insurance.

Availability of Data

9. ESRO shall, upon request of the United States and at its expense, provide any raw data received by ESRO at the station and any reduced data therefrom. The United States may make use of this data after a period consistent with existing ESRO practice. Any earlier use of this data by the United States shall be subject to prior permission by ESRO. In any use of this data the United States will respect the ESRO rules relating to intellectual property rights.

Station Use

10. Apart from utilizing its station for its own satellites, ESRO may utilize its station for the support of satellites of one or more ESRO member states, and, with the prior consent of the United States for the support of other satellites.

Final Clauses

11. Supplementary arrangements between the United States and ESRO may be made from time to time as required for the carrying out of the purposes, principles and procedures of this Agreement. This agreement may be revised by mutual consent at the request of either party. The United States and ESRO recognize the desirability, in accordance with international practice, of arbitrating any difference which may arise under this Agreement. This Agreement shall continue in effect until February 29, 1972, and can be extended for an additional term by prior written agreement. If the foregoing principles and procedures are acceptable to the European Space Research Organization, I have the honor to propose that this note, together with your note to that effect, shall constitute an Agreement between the United States of America and the European Space Research Organization on this matter which shall enter into force on the date of your note in reply. I wish to present the renewed assurances of my highest consideration.

Charles E. Bohlen 2.

Letter from the Director General of ESRO ORGANISATION EUROPEENNE DE RECHERCHES SPATIALES EUROPEAN SPACE RESEARCH ORGANISATION

Paris, le 28th November 1966 Your Excellency, I have the honour to acknowledge receipt of your note of today's date, concerning the establishment and operation of a satellite telemetry/telecommand station

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Section III — Treaties near Fairbanks, Alaska, in connection with peaceful and scientific space activities to be undertaken by the Organisation, which reads as follows: [Reproduction of the letter of Mr. Charles E. Bohlen of 28 November 19661 I have the honour to confirm that the principles and procedures specified in your note are acceptable to the European Space Research Organisation and I concur with your proposal that your note and my present reply, shall constitute an Agreement between the United States of America and the European Space Research Organisation on this matter which shall enter into force on today's date. I have the honour to be, with high consideration, your Excellency, Your obedient Servant, Pierre Auger MEMORANDUM OF UNDERSTANDING BETWEEN THE EUROPEAN SPACE RESEARCH ORGANIZATION AND THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION CONCERNING THE FURNISHING OF SATELLITE LAUNCHING AND ASSOCIATED SERVICES

Affirming their mutual interest in peaceful space research, the European Space Research Organisation (ESRO) and the United States National Aeronautics and Space Administration (NASA) set forth in this Memorandum of Understanding their general understanding as to the conditions under which NASA will furnish to ESRO launching and associated services for scientific spacecraft, on a reimbursable basis, and as to the responsibilities of the parties in connection with the launchings. ESRO and NASA intend that, at appropriate times in the future, they will enter into separate launching contracts, expressing the specific terms and conditions under which NASA will furnish launchings and associated services for each set of launchings requested by ESRO, and which shall be in accord with the general understandings set forth in this Memorandum. Article I RESPONSIBILITIES

A. ESRO will be responsible for: 1. Furnishing advice to NASA of its requirements for a particular set of launchings at as early a date as possible and in any event sufficiently in advance (minimum 18-24 months) of the target date of the first launching to accommodate financial, procurement, and operational requirements of both parties. Such advice will include details as to the spacecraft mission, payload description, orbital characteristics, launching parameters, planned launching dates and back-up launching requirements, and other information needed by NASA for planning purposes. 2. Incorporating provisions in the spacecraft design specifications and test programs to assure and demonstrate spacecraft compatibility with the launch vehicle physical constraints and in-flight environment and with tracking and data acquisition facilities. 3. Providing flight-ready spacecraft at the launching range, in accordance with the time schedule established under the Iaunching contract. 4. Furnishing all ground-support equipment (GSE) peculiar to the mission and personnel required for its operation except for certain items of GSE which NASA may specifically agree to provide and/or operate.

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ESRO B.

NASA will be responsible for: 1. Furnishing launch vehicle and tracking and data acquisition specifications necessary for ESRO to carry out its responsibilities under Article L A.2 above. 2. Scheduling the ESRO launching within the general time period requested by ESRO, subject to the requirements of the United States programs. If such requirements should arise NASA will so notify ESRO as soon as possible. 3. Providing Thor-Delta or other appropriate US launch vehicles. The parties shall jointly select the vehicle to meet ESRO mission requirements. 4. Providing necessary facilities and support, including launch crew services, for pre-launch integration of ESRO spacecraft at the launching range, and for ESRO's check-out of the spacecraft. 5. Launching the space craft from a US range. 6. Furnishing tracking and telemetry data reception from the spacecraft to ascertain achievement of orbit and vehicle performance, using existing US facilities. Additional NASA tracking and data acquisition support may be arranged at ESRO request on a non-interference basis. Additional or unique equipment, if required, will be supplied by ESRO. 7. Performing initial orbital calculations. 8. Furnishing other mutually agreed services and/or GSE in support of specific or general ESRO launch requirements. Article II IMPLEMENTATION

A.

Each party will designate a Project Manager for each set of launchings, to be responsible for coordinating the agreed functions and responsibilities of each party with the other, pursuant to the detailed arrangements established under the launching contract. The ESRO Project Manager will be concerned primarily with the spacecraft and the NASA Project Manager will be concerned primarily with the vehicle. Together they will be responsible for the spacecraft/vehicle interface.

B. NASA will have operational authority over the vehicle, the launching, and associated services. ESRO will have operational authority over the spacecraft until it is mounted on the final stage motor, at which time it will become NASA's responsibility until separation in orbit. In accordance with normal practice, the ESRO Project Manager can place a "hold" on the launching operation at any time. In carrying out their respective responsibilities, both parties will be subject to the safety and other operational regulations and procedures of the range from which the launching takes place. C. Arrangements for the furnishing of supporting services by NASA in connection with a specific launching or set of launchings will be provided for under the launching contract. NASA may also furnish, on a reimbursable basis, minor services in support of general ESRO launching requirements, at ESRO's request and under arrangements to be agreed upon separately. Article III FINANCIAL PRINCIPLES

A. ESRO will be responsible for all costs incurred by it in carrying out its own responsibilities, and will reimburse NASA for costs incurred by NASA in connection with furnishing the requested launching and associated services, and

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Section 111— Treaties any other supporting services provided at ESRO's request. The general principle under which reimbursement will be made will be that ESRO will reimburse NASA for all identifiable additional direct costs incurred by NASA in connection with and properly allocable to the services furnished by NASA for the purposes of any scheduled ESRO launching, whether or not such launching actually occurs or is successful, plus an additional amount, to be agreed upon in advance, covering NASA's indirect costs and other costs which are not readily identifiable. NASA may also charge an agreed rental for the use of equipment loaned to ESRO. B. Reimbursement of NASA's costs will be made initially on the basis of an estimate to be furnished by NASA in advance, under a payment schedule to be established in the launching contract. The amount paid by ESRO on an estimated basis will be adjusted subsequently to reflect the costs actually incurred by NASA in connection with each launching. In the case of costs incurred by NASA which are not accounted for on a per launch basis, such as for launch vehicles and launch crew services, NASA may, in determining its actual costs, allocate costs for a particular launching on a pro-rata basis. C.

ESRO will be exempted from reimbursing NASA for certain costs which might otherwise be payable under the general principle stated in Paragraph A. above, such as costs incurred by NASA as a result of payment of claims of third parties for injuries, death, or damage to or loss of property; or such as costs incurred by NASA as a result of damage to or loss of US Government property, except for damage to or loss of a vehicle being used in connection with or during preparation for an agreed launch. Article IV DOCUMENTATION AND REPORTS

A.

NASA and ESRO will exchange, through their respective Project Managers, all documents and information necessary for the successful completion of the agreed missions.

B. Immediately after each launching, ESRO will provide NASA all data from the satellite necessary for ascertaining the performance of the launch vehicle. C.

ESRO shall, upon NASA's request and at NASA's expense, provide NASA with any raw data received by ESRO from the satellite and any reduced data therefrom. Any use of unpublished data by NASA within the time period protected by ESRO rules shall be subject to prior permission by ESRO. In any use of this data, NASA will respect the ESRO rules relating to intellectual property rights. Article V REVISION

It is understood that this Memorandum of Understanding can be amended by mutual consent. Dated December 30, 1966.

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Chapter 22

Bilateral Agreements I. FRANCE—FEDERAL REPUBLIC OF GERMANY AGREEMENT BETWEEN FRANCE AND THE FEDERAL REPUBLIC OF GERMANY Le Gouvernement de la Republique Francaise et Le Gouvernement de la Republique Federale d'Allemagne, Soucieux de poursuivre la mise en application des dispositions du Traite francoallemand du 22 janvier 1963, en particulier de celles relatives au developpement de la cooperation scientifique entre les deux pays, Considerant ('importance que revetent les systemes de telecommunication par satellites, Constatant l'interet des recherches qui ont déjà ete effectuees tant en France qu'en Allemagne dans ce domain, Convaincus des avantages presentes par la mise en commun de leurs connaissances, Desireux d'apporter, en accord avec la resolution n° 1 de la Conference Europeenne des Telecommunications par Satellites (CETS), prise å La Haye en 1966, leur contribution propre aux efforts entrepris dans le cadre de la CETS, Sont convenus de ce qui suit. ARTICLE 1

1. Les Gouvernements signataires de la presente Convention entreprennent en commun la conception et la realisation, le lancement et l'utilisation d'un satellite experimental de telecommunication destine å distribuer les programmes de radiodiffusion et de television, h assurer des communications telephoniques et telegraphiques et å transmettre des donnees. Ce projet Symphonie, comprend notamment la mise au point d'un prototype et la construction ainsi que les lancements de deux modeles de vol, å partir du Centre Spatial Guyanais å l'aide de lanceurs fournis par le CECLES. 2. La cooperation des deux Gouvernements s'etend egalement å la conception et å la realisation des stations terriennes experimentales necessaires å l'utilisation des satellites. ARTICLE 2 Un protocol financier precisera la limite de l'engagement financier auquel souscrivent les deux Gouvernements pour la realisation du projet qui fait l'objet de la presente Convention, ci-apres appele "le projet". ARTICLE 3 1. Les deux parties ont des droits egaux et des obligations egales. Cette egalite est assuree dans la repartition initiale des contrats vises å l'article 7 conformement aux dispositions de celui-ci, ainsi que dans la repartition de tous autres contrats passes pour l'execution du projet.

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Section III — Treaties 2. Chaque partie supporte les depenses correspondant aux travaux executes sur son territoire au titre de ces contrats y tompris les depassements eventuels du montant desdits contrats. Toutefois les cords des lanceurs et des lancements, les coüts des fournitures et des services provenant de pays tiers ainsi que les depenses de fonctionnement du Comite Executif vise a Particle 4 sont partages par moitie entre les parties. 3. Le montant des contrats passes, en cours d'execution du projet, pour tenir compte de modifications aux specifications techniques decidees par le Conseil de direction, vise å l'article 4, petit, par derogation aux dispositions de l'alinea premier du paragraphe 2 du present article, gitre reparti entre les deux parties, par decision du Conseil de Direction. Les modalites de cette repartition sont fixees par le Conseil de Direction. 4. Les coins de fonctionnement des Administrations nationales ainsi que les depenses d'investissement restent en principe a la charge de chaque partie et ne sont point inclus dans les depenses du projet. Toutefois, sur proposition du Comite Executif, le Conseil de Direction petit decider que certaines depenses d'investissement considerees comme specifiques au projet seront en tout ou en partie incluses dans les depenses du projet. 5. Si, pour l'une ou l'autre des deux Parties, le montant des contrats conclus pour la realisation du projet depasse la limite fixee au Protocole financier, les deux Gouvernements se consulteront sur les mesures a prendre afin de poursuivre le projet. ARTICLE 4 En vue d'atteindre les objectifs designos a ]'article 1, les deux Gouvernements treent les organes suivants : —un Conseil de Direction, ci-apres appele le Conseil. —un Comite Executif, ci-apres appele le Comite. ARTICLE S 1. Le Conseil se compose de trois Directeurs nommes par le Gouvernement de la Republique Francaise et de trois Directeurs nommes par le Gouvernement de la Republique Federale d'Allemagne. Les deux Secretaires permanents vises å l'article 6 de la presente Convention assistent aux reunions du Conseil. 2. Le Conseil definit les orientations genorales du projet; il donne des directives au Comite pour ]'execution du projet et contri5le la realisation de ce dernier. Le Conseil, en particulier: a)—decide de la mission du satellite experimental et des stations terriennes, b)—sur proposition du Comite, approuve les specifications techniques relatives au projet, c)—sur proposition du Comite, approuve les dossiers de consultation, procede pour chaque partie principale du projet au choix du consortium et du maitre d'oeuvre vises å l'article 7, d)—approuve, sur proposition du Comite, les contrats qui seront passes avec les maitres d'oeuvre, ainsi que les contrats qui seront passes par ceux-ci. Pour ces derniers contrats, il petit deleguer ses tompotenes au Comite, e)—decide de la passation de tous contrats necessaires autres que ceux vises a l'alinea (d) du present paragraphe. Il peut deleguer cette competence au Comite,

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FRANCE AND THE FEDERAL REPUBLIC OF GERMANY

f)—adopte les plans de financement et d'ordonnancement ainsi que les budgets annuels d'engagement et de paiement qui lui sont soumis par le Comite, g)—determine le programme d'utilisation des modeles de vol du satellite experimental, conformement aux conditions fixees par Particle 12. 3. Les questions qui n'ont pu etre resolues par le Comite sont soumises au Conseil pour decision. 4. Le Conseil prend ses decisions d'accord entre les deux parties. 5. Le Conseil se reunit au moms quatre fois par an, sur l'initiative de son President ou h la demande de l'un quelconque de ses membres ou de Fun des deux Secretaires permanents. ll se reunit, en principe, altemativement a Paris et å Bonn. 6. Le Conseil est preside alternativement par tin Directeur frangais et par un Directeur allemand. ARTICLE 6 1. Le Comite est compose de deux Secretaires permanents nommes l'un par le Gouvernement de la Republique Francaise, l'autre par le Gouvernement de la Republique Federale d'Allemagne. Chacun des deux Secretaires peut se faire assister d'experts. 2. Le Comite a pour mission, sous ('autorite du Conseil, de diriger l'execution du projet sur les plans technique et financier. Il est chargé de coordonner les travaux de tous les organismes participant au projet. 3. Le Comite est notamment charge: a)—de soumettre au Conseil des propositions concernant la mission du satellite experimental ainsi que celle des stations terriennes, b)—de definir les specifications techniques relatives au projet et de les proposer au Conseil, c)—d'etablir å partir de ces specifications techniques les dossiers de consultation relatifs aux contrats de maltrise d'oeuvre et de lancer ces consultations apres approbation des dossiers par le Conseil, d)—de depouiller les reponses aux consultations et de proposer au Conseil pour chaque partie principale du projet le choix du consortium et du maitre d'oeuvre en tenant compte des principes fixes å Particle 7 (2), e)—de mener les negociations des contrats de maltrise d'oeuvre, de contröler leur passation et leur execution conformement aux dispositions de la presente Convention, f)—d'examiner et de soumettre å l'approbation du Conseil, pour autant que celui-ci ne lui aurait pas delegue cette competence, les propositions des maitres d'oeuvre concernant les contrats passes conformement ii Particle 7 (2), et d'en contröler l'execution, g)—d'assurer la reception technique des lanceurs et de contröler la bonne execution des lancements, h)—de soumettre au Conseil les plans de financement et d'ordonnancement du projet, i)—de proposer cheque annee au Conseil les budgets d'engagement et de paiement et de les executer apres leur approbation par le Conseil, j)—de s'assurer que les depenses sont repartes entre les deux Gouvernements conformement aux dispositions de la presente Convention, k)—d'assumer toute autre tåche qui lui est confiee par le Conseil. 351

Section 111— Treaties 4. Le Comite rend compte au Conseil a chacune des reunions de celui-ci de l'avancement du projet; il lui soumet, en outre, les questions qu'il n'a pu trancher. 5. Pour l'assister dans l'accomplissement de ses etches, le Comite peut creer les groupes de travail franco-allemands qu'il estime necessaires. 6. Le Comite prend ses decisions par accord entre les deux Secretaires permanents. 7. Le Comite se reunit, å intervalles reguliers et chaque foil que l'un des deux Secretaires le juge necessaire, soit 3 Bonn, soit a Paris, soit en tout autre lieu si besoin est. ARTICLE 7 1. Les travaux relatifs a chaque partie principale du projet sont executes par un consortium d'entreprises francaises et allemandes choisi apres consultation. Ces travaux font l'objet d'un contrat unique de maltrise d'oeuvre. 2. Le maitre d'oeuvre dolt assurer entre l'ensemble des travaux executes en France et l'ensemble des travaux executes en Republique Federale d'Allemagne une repartition quantitative egale et une repartition qualitative equitable. ARTICLE 8 Compte tenu de l'importance que revetent pour les deux parties les connais1. sances techniques que permettra d'acquerir l'integration du prototype et des deux mod8les de vol, il convient que ces travaux beneficient egalement aux deux parties. 2. Le Conseil est charge de definir les modalites de cette integration en faisant en sorte que soit assure, autant que possible, 1'equilibre qualitatif et quantitatif entre les deux parties. 3. Cette integration sera effectue par la meme equipe franco-allemande. ARTICLE 9 1. Sur Ies instructions du Conseil et du Comite, le Centre National d'Etudes Spatiales et la Gesellschaft für Weltraumforschung sont charges de la passation et de la gestion administrative des contrats relatifs au projet. 2. Les modalites d'execution de cette mission sont fixees par le Conseil. ARTICLE 10

Sous 1'autorite du Comite, des groupes communs designes par celui-ci peuvent etre charges du contröle technique et de la verification des prix. ARTICLE 11

A la fin de chaque exercice financier, les comptes sont verifies par une Commission de verification des comptes se composant de quatre membres. Chacun des Gouvernements designe deux membres. ARTICLE 12 1. Les deux parties jouissent de droits egaux en ce qui concerne l'utilisation des satellites experimentaux et des stations terriennes correspondantes. 2. Le programme de cette utilisation comporte des periodes d'essai en commun et des periodes laissees a la competence exclusive de chacune des parties. 3_ Si les deux modeles de vol prevus å Particle 1 (1) fonctionnent, chacune des deux parties pourra obtenir un droit exclusif d'utilisation sur l'un d'eux.

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FRANCE AND THE FEDERAL REPUBLIC OF GERMANY ARTICLE 13 1. En ce qui concerne les stations spatiales et terriennes etablies et exploitees en vertu de la presente Convention, les deux partis respecteront les reglements correspondants en vigueur sur le plan national et international. 2. Avant de notifier au Comite International d'Enregistrement des Frequences (IFRB) une assignation de frequence a une station spatiale etablie et exploitee en vertu du present accord, 1'Administration de la partie qui procede å cette notification s'assurera de l'accord de l'administration de l'autre partie. Cette notification sera faite au nom des deux parties. ARTICLE 14 1. Sur le satellite experimental et les stations terriennes dont le conception et la realisation font l'objet de la presente Convention, chaque Gouvernement aura le droit: a)—d'utiliser librement les resultats des etudes, b)—de disposer des dossiers d'etudes et de fabrication, rapports d'essais, documents et renseignements de toute nature, provenant de l'execution des contrats conclus au titre de la presente Convention, c)—de reproduire ou de faire reproduire un satellite ou des elements de satellite, une station terrienne ou des elements de station, et d'obtenir a cette fin, moyennant des conditions commerciales raisonnables, l'aide technique, le savoir-faire et toute l'assistance necessaire. 2. Le droit de reproduction du satellite ou d'une station terrienne ou de leurs elements ou derives, ne peut etre transfers å un autre Gouvernement ou a des personnes residant en dehors du territoire des parties contractantes, qu'avec l'accord des deux Gouvernements. Cet accord est egalement requis pour la transmission des dossiers vises au paragraphe 1 du present article ainsi que pour toute aide et assistance. ARTICLE 15 1. Lorsqu'un brevet ou autre titre de protection resultant de travaux executes en vertu de la presente Convention est depose aupes de l'autorite competente de l'une des deux parties å la presente Convention, il doit l'etre egalement aupes de I'autorite competente de l'autre partie dans les delais assurant la protection conformement aux dispositions de la Convention d'Union du 20 mars 1883. 2. Chacun des Gouvernements aura le droit d'obtenir sur tous les brevets et autres titres de protection vises au paragraphe 1 du present article, une licence gratuite comportant le droit d'accorder des sous-licences a des tiers qui resident sur son territoire et qui seraient charges de travaux demandes par ledit Gouvernement pour ses besoins propres. 3. Toute attribution de licence ou de sous-licence concernant des brevets ou titres vises au paragraphe 1 du present article a des tiers autres que ceux vises au paragraphe 2 du present article ne peut gitre effectuee qu'avec l'accord des deux Gouvernements. ARTICLE 16 1. Tons les contrats relatifs a l'execution du projet doivent tomporter des dispositions procurant aux deux Gouvernements signataires les droits definis aux articles 14 et 15 de la presente Convention. 2. Le Gouvernement qui dettent, en vertu de l'execution du projet, les moyens de satisfaire aux dispositions des articles 14 et 15 de la presente Convention, accepte les obligations correspondantes.

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Section III — Treaties ARTICLE 17 Les deux Gouvernements se consultent et leur accord est necessaire: a)—pour communiquer å des tiers des informations relatives au projet, b)—pour decider de la participation de Gouvernements tiers au projet. ARTICLE 18 1. Les Gouvernements ne peuvent cesser leur participation au projet que dans le cas du depassement de la limite fixee au Protocole Financier, et sous reserve des consultations prevues å l'article 3 (5). 2. Le Gouvernement qui decide de se retirer conformement au paragraphe 1 du present article doit le notifier a l'autre Gouvernement dans les meilleurs delais. 3. Le Gouvernement qui cesse ainsi sa participation au projet beneficie des droits acquis en matiere de propriete industrielle a la date de son retrait. Les autres questions posees par le retrait d'une partie seront reglees conjointement par les deux Gouvernements. ARTICLE 19 1. Les differends relatifs å ]'interpretation ou å ]'application des dispositions de la presente Convention doivent autant que possible gitre regios entre les deux Gouvernements par voie de negotiation. 2. Si un differend ne peut gitre regle de cette facon, chacun des deux Gouvernements peut exiger que le differend soit soumis å la decision d'un tribunal d'arbitrage. Il notifie sa decision a l'autre Gouvernement. 3. Le tribunal d'arbitrage est constitue par trois membres. Chaque Gouvernement designe un membre dans un delai d'un mois ii compter de la notification visee au paragraphe 2 du present article. Les deux membres ainsi designos se mettent d'accord pour choisir dans un alai de deux mois, å compter de leur designation, un President, parmi les ressortissants d'un Etat tiers. 4. Si les delais prevus au paragraphe 3 ne sont pas observes et å defaut d'un autre arrangement, chacun des deux Gouvernements peut prier le President de la Cour de Justice des Communautes Europeennes de proceder aux nominations necessaires. 5. Le Tribunal d'arbitrage prend ses decisions å la majorite des voix. 6. Le Tribunal d'arbitrage prend ses decisions sur la base des dispositions de l'article 38 paragraphe 1 du Reglement de la Cour Internationale de Justice, ses decisions sont obligatoires. 7. Le Tribunal fixe ses regles de procedure selon les modalites prevues au Chapitre III de la Convention de La Haye du 18 octobre 1907 pour le reglement pacifique des conflis internationaux. 8. Chacun des deux Gouvernements prend å sa charge ses propres frais et la moitie des frais du Tribunal d'arbitrage. ARTICLE 20 La presente Convention s'applique egalement au Land de Berlin sauf declaration contraire faite par le Gouvernement de la Republique Federate d'Allemagne au Gouvernement de la Republique Francaise dans les trois mois qui suivent ]'entree en vigueur de la presente Convention.

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FRANCE AND THE USSR ARTICLE 21 La presente Convention entre en vigueur des que les deux Gouvernements se sont mutuellement informes de l'accomplissement des procedures necessaires a cet effet. Fait en double exemplaire, en langue francaise et en langue allemande, les deux textes faisant egalement foi.

Pour le Gouvernement de la Republique Française

Pour le Gouvernement de la Republique Federale d'Allemagne

II. FRANCE-USSR AGREEMENT BETWEEN FRANCE AND THE UNION OF SOVIET SOCIALIST REPUBLICS NOTE ON ITS IMPLEMENTATION* Les delegations sovietique et francaise des Commissions chargees de l'etude de la cooperation spatiale entre les deux pays prevue par les accords de juin et d'octobre 1966 se sont reunies å Paris, du 16 au 25 mai 1967, sous la presidence de MM. les Professeurs Petrov et Coulomb. Elles ont discute des problemes relatifs a ('etude scientifique conjointe de l'espace, des telecommunications spatiales, de la meteorologie spatiale et de l'aeronomie. Elles ont constate avec satisfaction que 1'Accord conclu en juin 1966 entre le Gouvernement de la Republique francaise et le Gouvernement de l'URSS etait appliqué avec succes. Les deux parties ont choisi le type de satellite frangais susceptible d'être mis sur orbite par une fusee sovietique. Un Groupe de travail scientifique et technique franco-sovietique a ete tree pour resoudre les problemes lies au projet du satellite frangais et å son assemblage avec le demier etage du lanceur sovietique ... . Les deux parties ont fait le point de Ieurs recherches respectives sur les satellites de telecommunications et sur les stations terriennes et ont etabli en consequence un nouveau plan de travail qui complete et prolonge le precedent. La collaboration dans le domaine de la meteorologic spatiale et de l'aeronomie se poursuit avec succes. Des etudes communes utilisant des images de Ia couverture nuageuse transmises en television par des satellites meteorologiques, et des mesures de rayonnements atmospheriques, notamment de rayonnements infrarouges, ont ete prevues. Pour ces etudes, les observations effectuees par les satellites meteorologiques sovietiques Cosmos 144 et Cosmos 156 et par les ballons d'observations å haute altitude de projet frangais Colombe seront utilisees. Les programmes d'experiences communes comprennent des lancements d'equipements frangais sur fusees sovietiques et des lancements d'equipements sovietiques sur fusees frangaises ... .

•Extract from VI

Reel,. Sp.,

No. 6, 10 (1967).

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Section IV Inter-governmental Organizations

Chapter 23

General Organizations

Summary: A. Resolutions of the General Assembly. B. Reports of the first Committee, the Committee on Peaceful Uses of Outer Space, the Scientific and Technical Sub-Committee and its Legal Sub-Committee. C.

Proposals and draft resolutions with respect to liability for damage, assistance to astronauts, and definition of Outer Space.

I. UNITED NATIONS A. RESOLUTIONS OF THE GENERAL ASSEMBLY

1. Resolution 2250 (S-V): Postponement of the United Nations Conference on the Exploration and Peaceful Uses of Outer Space The General Assembly, Recalling its resolution 2221 (XXI) of 19 December 1966, by which it was decided that a United Nations Conference on the Exploration and Peaceful Uses of Outer Space be held, Reaffirming the great importance it attaches to this Conference, 1. Accepts the unanimous recommendation of the Committee on the Peaceful Uses of Outer Space; 2. Decides that the United Nations Conference on the Exploration and Peaceful Uses of Outer Space should be postponed from the planned date of September 1967 and that it should now be held at Vienna from 14 to 27 August 1968; 3. Reaffirms the guidance contained in its resolution 2221 (XXI); 4. Urges all participating States to devote their utmost efforts to ensuring the success of the Conference; 5. Requests the Committee on the Peaceful Uses of Outer Space to submit to the General Assembly at its twenty-third session a report on the preparations for, and the organization and proceedings of, the Conference.

2.

Resolution 2260 (XXII): Report of the Committee on the Peaceful Uses of Outer Space

The General Assembly, Recalling its resolutions 2222 (XXI) and 2223 (XXI) of 19 December 1966, Having considered the report of the Committee on the Peaceful Uses of Outer Space, Noting that the first decade of man's activities in outer space, inaugurated by the launching of the first artificial earth satellite, has opened up the prospect of a wider utilization of outer space for the benefit of all peoples,

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Section IV — Inter-governmental Organizations — General Welcoming the recent entry into force of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Considering that the exploration and use of outer space contribute to the acceleration of progress in many fields of science and technology having immediate practical significance for all countries, Reaffirming the general interest of mankind in the further exploration and use of outer space for peaceful purposes, Convinced that the widest possible co-operation in the exploration and use of outer space can be an important contributing factor to friendly relations among States, 1. Endorses the recommendations and decisions contained in the report of the Committee on the Peaceful Uses of Outer Space; 2. Calls upon those countries which have not signed the Treaty on Principles Governing the Activities of States in the Exploration and Peaceful Uses of Outer Space, including the Moon and Other Celestial Bodies, to accede to the Treaty so that it can have the broadest possible effect; 3. Commends the space programmes in effect between many Member States and recommends such programmes to the attention of other States; 4. Welcomes the efforts of a number of Member States to keep the Committee on the Peaceful Uses of Outer Space fully informed of their activities and notes in particular the report presented by the Government of India entitled "Satellite communications: an Indian study"; 5. Approves the continuing sponsorship by the United Nations of the Thumba Equatorial Rocket Launching Station and recommends that Member States give consideration to the use of these facilities for appropriate space research activities; 6. Endorses the decision of the Committee on the Peaceful Uses of Outer Space to appoint a small group of scientists to visit the sounding rocket station near Mar del Plata, Argentina, when it is operative, in order to advise the Committee on the station's eligibility for United Nations sponsorship in accordance with the basic principles endorsed by the General Assembly in resolution 1802 (XVII) of 14 December 1962; 7. Notes with appreciation the report of the Working Group of the Committee on the Peaceful Uses of Outer Space on a navigation services satellite system and endorses the suggestion that the International Civil Aviation Organization and the Inter-Governmental Maritime Consultative Organization, as well as other specialized agencies and interested international governmental and non-governmental organizations, should continue to study the requirements for potential applications for navigation services satellite systems in their areas of competence and make their reports on this subject available to the Committee on the Peaceful Uses of Outer Space; 8. Expresses its appreciation of the work of the specialized agencies in the field of outer space, in particular the World Weather Watch programme of the World Meteorological Organization and the progress made by the International Telecommunication Union in the study of technical problems and the technical assistance rendered by that agency during the planning and testing of the Experimental Satellite Communications Earth Station at Ahmedabad, India, and invites these organizations to make progress reports to the Committee on the Peaceful Uses of Outer Space in 1968; 9. Requests the Committee on the Peaceful Uses of Outer Space, in the further progressive development of the law of outer space, to continue with a sense of

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urgency its work on the elaboration of an agreement on liability for damage caused by the launching of objects into outer space and an agreement on assistance to and return of astronauts and space vehicles, and to pursue actively its work on questions relative to the definition of outer space and the utilization of outer space and celestial bodies, including the various implications of space communications; I0. Urges the Committee on the Peaceful Uses of Outer Space to continue its activities aimed at increasing the exchange of information in matters relating to outer space and calls upon all Member States to co-operate fully in this endeavour; 11. Requests the Committee on the Peaceful Uses of Outer Space to start at its next session the serious consideration of the suggestions and views regarding education and training in the field of the exploration and peaceful uses of outer space expressed in the General Assembly and in the Committee; 12. Urges the Committee on the Peaceful Uses of Outer Space to consider further the question of the applications of satellite technology which would create benefits for mankind from their implementation on an international basis; 13. Requests the Committee on the Peaceful Uses of Outer Space to study the technical feasibility of communications by direct broadcasts from satellites and the current and foreseeable developments in this field, as well as the implications of such developments; 14. Requests the Committee on the Peaceful Uses of Outer Space to continue its work as set out in the present resolution and in previous General Assembly resolutions and to report to the Assembly at its twenty-third session.

3. Resolution 2261 (XXII): United Nations Conference on the Exploration and Peaceful Uses of Outer Space The General Assembly, Recalling its resolutions 2221 (XXI) of 19 December 1966 and 2250 (S-V) of 23 May 1967, by which it was decided to hold a United Nations Conference on the Exploration and Peaceful Uses of Outer Space at Vienna from 14 to 27 August 1968, Recalling further its endorsement of the objectives of the Conference, which shall be to examine the practical benefits of space programmes on the basis of scientific and technical achievements, and the opportunities available to non-space Powers for international co-operation in space activities, with special reference to the needs of the developing countries, Reaffirming its belief that it is in the interest of all countries, and of the developing countries in particular, that knowledge and understanding of the achievements of space science and technology should be more widely disseminated and that the practical applications of space technology should be actively promoted, Believing that the success of the Conference will best be ensured if there is effective participation therein, Believing further that the widest possible participation in the Conference by the developing countries is highly desirable, 1. Expresses the hope, therefore, that all those invited to the United Nations Conference on the Exploration and Peaceful Uses of Outer Space under General Assembly resolution 2221 (XXI) will accept the invitation; 2. Calls upon all participating States to devote their utmost efforts to ensuring the success of the Conference by the fullest possible achievement of its objectives as set forth in resolution 2221 (XXI);

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Section IV — Inter-governmental Organizations — General 3. Requests the Secretary-General, with the assistance of the Chairman of the Committee on the Peaceful Uses of Outer Space and the panel of experts within its terms of reference and in co-operation with the interested specialized agencies, to continue to make the necessary organizational and administrative arrangements for the Conference, within the ceiling of expenditure established for it, and to take appropriate steps to secure the widest publicity for the Conference. B. REPORTS OF COMMITTEES

1. First Committee, Twenty-second session of the General Assembly, 31 October 1967 (A/6883) The Committee held its 1497th-1502nd meetings on 17, 19, and 20 October, and its 1507th meeting on 26 October 1967 when it considered the item "International cooperation in the peaceful uses of outer space: Report of the Committee on the Peaceful Uses of Outer Space." The provisional verbatim records are published as A/C. 1/P.V. 14971502 and A/C. 1/PV. 1507, and its report as A/6883, 31 October 1967. During these meetings the Committee discussed and unanimously adopted the two draft resolutions (A/C. 1/L.402 and Add. i and 2, and A/C. 1/L.403) which were submitted to it on 24 October. The first draft resolution (A/C. 1/L.402) sponsored by Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Chad, Czechoslovakia, France, Hungary, India, Iran, Japan, Lebanon, Mongolia, Poland, Rumania, Sweden, the Union of Soviet Socialist Republics, the United Arab Republic, the United Kingdom of Great Britain and Northern Ireland, and the United States of America, and subsequently co-sponsored by Mexico, Morocco, Sierra Leone, and Italy, is summarized as follows in the report. Under the draft resolution, the General Assembly would: (1) endorse the recommendations and decisions contained in the report of the Committee on the Peaceful Uses of Outer Space; (2) call upon those countries which have not signed the Treaty on Principles Governing the Activities of States in the Exploration and Peaceful Uses of Outer Space to accede to the Treaty so that it can have the broadest possible effect; (3) commend the space programmes in effect between many Member States and recommend such programmes to the attention of other States; (4) welcome the efforts of a number of Member States to keep the Committee on the Peaceful Uses of Outer Space fully informed of their activities and note in particular the report presented by the Government of India entitled "Satellite communications: an Indian study" (A/AC.105/36); (5) approve the continuing sponsorship by the United Nations of the Thumba Equatorial Rocket Launching Station and recommend that Member States give consideration to the use of these facilities for appropriate space research activities; (6) endorse the decision of the Committee on the Peaceful Uses of Outer Space to appoint a small group of scientists to visit the sounding rocket station near Mar del Plata, Argentina, when it is operative, to advise the Committee on the the station's eligibility for United Nations sponsorship in accordance with the basic principles endorsed by the General Assembly in resolution 1802 (XVII); (7) note with appreciation the report of the working group of the Committee on the Peaceful

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UNITED NATIONS Uses of Outer Space on navigation services satellite systems and endorse the suggestion that the International Civil Aviation Organization and the Inter-Governmental Maritime Consultative Organization, as well as other specialized agencies and interested international governmental and non-governmental organization, should continue to study the requirements for potential applications for navigation services satellite systems in their areas of competence and make their reports on this subject available to the Committee on the Peaceful Uses of Outer Space; (8) express its appreciation of the work of the specialized agencies in the field of outer space, in particular the World Weather Watch Programme of the World Meteorological Organization and the progress made by the International Telecommunication Union in the study of technical assistance rendered by that agency during the planning and testing of the Experimental Satellite Communications Earth Station at Ahmedabad, India, and invite these organizations to make progress reports to the Committee on the Peaceful Uses of Outer Space in 1968; (9) request the Committee on the Peaceful Uses of Outer Space, in the further progressive development of the law of outer space, to continue with a sense of urgency its work on the elaboration of an agreement on liability for damage caused by the launching of objects into outer space, and an agreement on assistance to and return of astronauts and space vehicles, and to pursue actively its work on questions relative to the definition of outer space and the utilization of outer space and celestial bodies; including the various implications of space communications; (10) urge the Committee on the Peaceful Uses of Outer Space to continue its activities aimed at increasing the exchange of information in outer space matters and call on all Member States to co-operate fully in this endeavour; (11) request the Committee on the Peaceful Uses of Outer Space to start at its next session the serious consideration of the suggestions and views regarding education and training in the field of the exploration and peaceful uses of outer space expressed in the General Assembly and in the Committee on the Peaceful Uses of Outer Space; (12) urge the Committee on the Peaceful Uses of Outer Space to consider further the question of the applications of satellite technology which would create benefits for mankind from their implementation on an international basis; (13) request the Committee on the Peaceful Uses of Outer Space to study the technical feasibility of communications by direct broadcasts from satellites, as well as the implications of such developments; and (14) request the Committee on the Peaceful Uses of Outer Space to continue its work as set out in the resolution and in previous General Assembly resolutions and to report to the General Assembly at its twenty-third session.

Under the second draft resolution (A/C. 1/L.403) submitted by Argentina, Austria, Brazil, Canada, India, Iran, Japan, Lebanon, Mexico, Poland, Sierra Leone, the United Arab Republic and Yugoslavia, as explained by the report, the General Assembly, recalling its decision to convene the United Nations Conference on the Exploration and Peaceful Uses of Outer Space at Vienna from 14 to 27 August 1968, would: (1) express the hope that all those invited to the Conference under General Assembly resolution 2221 (XXI) will accept the invitation; (2) call upon all participating States to devote their utmost efforts to ensure the success of the Conference by the fullest possible achievement of its objectives as set forth in resolution 2221 ()XI); and (3) request the SecretaryGeneral, with the assistance of the Chairman of the Committee on the Peaceful Uses of Outer Space and the panel of experts within its terms of reference, and in co-operation with the interested specialized agencies, to continue to make the necessary organizational and administrative arrangements for the Conference,

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Section IV — Inter-governmental Organizations — General within the ceiling of expenditure established for it, and to take appropriate steps to secure the widest publicity for the Conference ... At its 1507th meeting, on 26 October, the Committee unanimously adopted the two draft resolutions (A/C. 1/L.402 and Add.1-2 and A/C.1/L.403).

Committee on the Peaceful Uses of Outer Space (Ninth and Tenth sessions) The Committee met on 13 February, on 17 and 19 April, and from 13 to 15 September 1967 for its 46th to 51st meetings, under the chairmanship of Mr. Kurt Waldheim (Austria). The verbatim records of the Committee's meetings were circulated as A/AC. 105/PV.46-51. The report is published as A/6804, dated 27 September 1967. Ninth Session of the Committee. At its 46th meeting on 13 February 1967 the Committee agreed to recommend to the General Assembly that the United Nations Conference on the Exploration and Peaceful Uses of Outer Space should be postponed for approximately one year after the initial date of September 1967 to permit better preparation of the Conference. The Commitee's recommendation was accepted by the General Assembly in resolution 2250 (S-V), under the terms of which the Conference was to be held at Vienna from 14 to 27 August 1968. At its 47th and 48th meetings on 17 and 19 April, the Committee discussed the organization of its work in 1967, in particular the programmes of work of its subsidiary bodies. Tenth session of the Committee. The Committee approved the opening statement by its Chairman which is reproduced in Annex II of A/6804. It also adopted its report to the General Assembly. The Committee also noted with appreciation the reports of the Scientific and Technical Sub-Committee (A/AC.105/39), Legal SubCommittee, and the Working Group on Navigation Services Satellite System. 2.

3.

Scientific and Technical Sub-Committee (Fifth session)

The fifth session was held at New York from 28 August to 6 September 1967. The summary records of the meetings are circulated as A/AC. 105/C. 1/SR.38-48, and its report as A/AC.105/39 dated 6 September 1967. The Sub-Committee considered the scientific and technical aspects of international co-operation in the peaceful exploration and use of outer space, in particular, the exchange of information, encouragement of international programmes, international sounding rocket facilities, education, and training. It also considered the question relating to the definition of outer space. The Sub-Committee had before it the following documents: a) Review of national and co-operative international space activities (A/AC. 105/L. 36, Add. 1 and Add. 2). 364

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b) Review of the activities and resources of the United Nations, of its specialized agencies and of other competent international bodies relating to the peaceful uses of outer space (A/AC 105/C.1/L.20). c) Sixth report by the International Telecommunication Union on telecommunication and the peaceful uses of outer space (A/AC.105/L.37) . d) World Weather Watch: the Plan and Implementation Programme (A/AC.105/L.38), and The Role of Metereorological Satellite in the World Weather Watch, submitted by the World Meteorological Organization. e) Experimental Satellite Communication Earth station, Ahmedabad, India (A/AC.105/C.1/L.19). f) Satellite Communications: an Indian study (A/AC.105/36). g) Thumba Equatorial Rocket Launching Station, report of the Advisory Panel (A/AC.105/L.30). h) International directory of facilities for education and training in basic subjects related to the peaceful uses of outer space, report of the Secretary-General (A/AC.105/C.1/R.1 ) . i) Letter dated 21 July 1967 from the Chairman of the Committee on the Peaceful Uses of Outer Space addressed to the Chairman of the Scientific and Technical Sub-Committee (A/AC.105/C.1 / L.22). 4.

Legal Sub-Committee (Sixth session)* The sixth session of the Legal Sub-Committee met at Geneva from 19 June to 14 July 1967 under the chairmanship of Mr. Eugeninsz Wyzner (Poland). The report of the session is published in A/AC.105/ 37. The agenda of the sixth session included the following items: a) Draft agreement on liability for damages caused by the launching of objects into outer space; Draft agreement on assistance to and return of astronauts and b) space vehicles; c) Study of questions relative to (i) the definition of outer space; and (ii) the utilization of outer space and celestial bodies, including the various implications of space communications. A) DRAFT AGREEMENT ON LIABILITY FOR DAMAGES CAUSED BY THE LAUNCHING OF OBJECTS INTO OUTER SPACE

The Sub-Committee had before it three draft Conventions: a revised draft Convention submitted by the delegation of Belgium (A/AC.105/ *This note was kindly contributed by Mr. M. Milde, Legal Officer, ICAO, in a private capacity.

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Section IV — Inter-governmental Organizations — General C.2/L.7/Rev. 3) ; a draft Convention submitted by the delegation of the United States (A/AC.105/C.2/L.19) in place of its previous draft Convention (A/AC.105/C.2/L.8/Rev. 3); and a draft Convention submitted to the Sub-Committee at its fourth session (A/AC.105/C.2/ L.10/Rev. 1), as amended at the sixth session (A/AC.105/C.2/L.24 and Add. 1), by the delegation of Hungary. As a result of the consideration of the three proposals and the amendments submitted, the Sub-Committee registered agreement only on a few points, such as: 1. "Damage" means loss of life, personal injury, or other impairment of health, or damage to property of States or of their persons, natural or juridical, or of international organizations. 2. The term "launching" should include "attempted launching." 3. The Launching (Respondent) State should be absolutely liable to pay compensation for damage caused on the surface of the Earth and to aircraft in flight. 4. International organizations that launch objects into outer space should be liable under the Convention for damage caused by such activities. 5. A claim may be presented by the Applicant (Presenting) (Claimant) State through the diplomatic channel. In accordance with the General Assembly Resolution 2222 (XXI) the draft agreement remains on the agenda of the Sub-Committee for future sessions (see also provisions of Articles VI and VII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, of 27 January 1967). All drafts presented to the sixth session were based on the principle of strict liability. Only the draft presented by the United States provided for limitation of liabiliy, though no specific amount of the limit was suggested; several delegations argued in favour of unlimited liability. All drafts were based on the public international law principle of state responsibility rather than on the private law principle of civil liability (claims may be presented only by a State against another State through diplomatic channels; disagreements between States relating to compensation are to be settled either by international arbitration or by the International Court of Justice; compensation is to be determined in accordance with applicable principles of international law, justice, and equity, etc.). B) DRAFT AGREEMENT ON ASSISTANCE TO AND RETURN OF ASTRONAUTS AND SPACE VEHICLES

The Sub-Committee had before it three proposals submitted under this item: a revised draft agreement on the rescue of astronauts in the event of accident or emergency landing, submitted jointly by Australia and Canada (A/AC.105/C.2/L.20). 366

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The terms of reference of the Sub-Committee were "to continue its work on the elaboration of an agreement ... on assistance to and return of astronauts and space vehicles" (paragraph 4(a), Resolution 2222 (XXI) of 19 December 1966). The draft presented at the sixth session of the Sub-Committee by the USSR was, however, restricted only to assistance to astronauts and did not mention the return of astronauts and space vehicles at all. This approach was criticized by some delegations on the ground that it was a step back from the provisions of the Treaty of 27 January 1967. The Soviet position, on the other hand, was that only the questions of assistance to astronauts were of an urgent nature and there was a reasonable hope to reach general consensus on them. The Sub-Committee reached agreement only on parts of the following two articles of the agreement: 1. Article I Notification of Accident Each Contracting Party which receives information or discovers that personnel of a spacecraft have suffered accident or are experiencing conditions of distress or have made a landing in an emergency in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State: (a) shall do its utmost to notify immediately the launching State; (b) shall immediately notify the Secretary-General of the United Nations who should disseminate the information without delay through all appropriate means at his disposal; ... . 2.

Article II Assistance in the Territory of a Contracting Party (1) If personnel of a spacecraft, who have suffered accident or are experiencing conditions of distress or have made a landing in an emergency, are in territory under the jurisdiction of a Contracting Party, that Contracting Party shall immediately take all possible steps to rescue the personnel and to render to them all necessary assistance. It shall keep the Landing State and the Secretary-General of the United Nations informed of the steps it is taking and of their result ... . No further consensus was reached in this matter but it is no more on the agenda of the Sub-Committee for further sessions; in December 1967 a text of an agreement on this matter was adopted at the United Nations General Assembly. C) STUDY OF QUESTIONS RELATIVE TO (A) THE DEFINITION OF OUTER SPACE AND (B) THE UTILIZATION OF OUTER SPACE AND CELESTIAL BODIES, INCLUDING THE VARIOUS IMPLICATIONS OF SPACE COMMUNICATIONS

The Sub-Committee, having discussed this item of its agenda, adopted a Questionnaire and requested the Chairman to transmit it to the Scientific and Technical Sub-Committee. 367

Section IV — Inter-governmental Organizations — General The Questionnaire invites the Scientific and Technical Sub-Committee: 1 (a) to draw up a list of scientific criteria that could be helpful to the Legal Sub-Committee in its study relative to a definition of outer space, (b) to give its views on the selection of scientific and technical criteria that might be adopted by the Legal Sub-Committee, and to indicate, on scientific and technical grounds, the advantages and disadvantages of each of them in relation to the possibility of a definition which would be valid for the longterm future, 2 (a) to consider the summary records of the 80th and 83rd meetings of the Legal Sub-Committee, at which these matters were initially discussed, and to take into account the assumptions, suggestions, and questions voiced by the various delegations, (b) to examine the above matters during its 1967 Session so as to enable the Legal Sub-Committee to continue its work at its next session. C. PROPOSALS AND DRAFT RESOLUTIONS

Summary:

1. Liability for Damage: (a) Proposal for a Convention by Belgium; (b) Draft Convention by the USA; (c) Revised draft convention by Hungary; (d) Other proposals and amendments submitted; 2. Assistance to Astronauts (a) Revised draft agreement by the USSR; (b) Draft agreement by the USA; (c) Revised AustralianCanadian proposal; (d) Other proposals and amendments submitted; 3. Definition of Outer Space (a) Proposal by France; (b) Draft recommendation by Italy.

1. Liability for Damage A) BELGIUM PROPOSAL FOR A CONVENTION ON THE UNIFICATION OF CERTAIN RULES GOVERNING LIABILITY FOR DAMAGE CAUSED BY SPACE DEVICES TO THIRD PARTIES ON THE SURFACE OF THE EARTH AND TO AIRCRAFT IN FLIGHT

105/c. 2/L. 7/REV. 3 (26.6.1967) A/AC. 105/37 ANNEX II (14.7.1967) A/6804 ANNEX III, P. 33 (27.9.1967)

A/AC.

Revision of document A/AC.105/C.2/L.7/Rev. 2 The Contracting Parties, Recalling the terms of the Treaty, signed on 27 January 1967, Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Recognizing that activities in the exploration and peaceful uses of outer space may from time to time result in damage,

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UNITED NATIONS Recognizing the need to establish rules governing liability with a view to ensuring that compensation is paid for damage thus caused, Have agreed as follows: ARTICLE I

(a) The provisions of this Convention shall apply to compensation for damage caused to persons or property by a space device or space devices. They shall not apply to compensation for damage caused in the territory of the Launching State or suffered by its nationals or permanent residents, or for damage caused by a space device to another space device, (b) The occurrence of the event causing the, damage shall create a liability for compensation once proof has been given that there is a relationship of cause and effect between the damage, on the one hand, and the launching, motion or descent of all or part of the space device, on the other hand. (c) If the damage suffered results either wholly or partially from an act or omission on the part of the Applicant State or of natural or juridical persons that it represents and such act or omission has been committed, either with intent to cause damage or rashly and in full knowledge that damage will probably result, the liability of the Launching State to pay compensation under this Convention shall, to that extent, be wholly or partially extinguished. ARTICLE 2 "Damage" shall be understood to mean loss of life, bodily injury or damage to property for which compensation may be claimed and assessed under the national law of the person injured, or if not, under applicable principles of international law. "Launching" shall be understood to mean an attempted launching or a launching operation proper, whether or not it fulfils the expectations of those responsible therefor. "Space device" shall be understood to mean any device intended to move in space and sustained there by means other than the reaction of air, as well as any constituent element of such device or of the equipment used for its launching or propulsion. "Launching State" shall be understood to mean the State or States which carry out the launching of a space device or, when the Applicant State is not able to determine the said State or States, the State whose territory is used for such launching. "Applicant State" shall be understood to mean the State which has been injured, or whose nationals, whether natural or juridical persons, or whose permanent residents have been injured, and which presents a claim for compensation. ARTICLE 3° The Launching State shall be held liable for compensation for damage caused in the circumstances stated in article 1 and defined in article 2. If several States participate in the launching of a space device, they shall be held jointly liable. ARTICLE 4 (a) Within two years after the occurrence of the damage, or after the identification of the State liable under article 1, the applicant State shall present through the diplomatic channel, to the State which it holds liable, all claims for compensation concerning itself and its nationals and residents. A The Belgian delegation reserves the right to submit an amendment dealing with the principle enunciated in this article.

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(b)

(c)

(d) (e) (f)

Contracting Party may request another State to present its claim and otherwise represent its interest in the event that it does not maintain diplomatic relations with the Launching State. If the applicant State or a person represented by its brings an action for compensation before the Courts or administrative organs of the State receiving the claim, it shall no longer be able to present a claim for compensation for the same damage under the provisions of this Convention. The said provisions shall not be considered to require, by implication, the prior exhaustion of such remedies as may exist under the rules of ordinary law in the State receiving the claim. If the State receiving the claim has not taken, within six months after being approached, a decision considered satisfactory by the applicant State, the latter may have recourse to arbitration. Within ninety days of the date of the request addressed to it by the applicant State, the State receiving the claim shall appoint one arbitrator, the applicant State shall appoint a second and the President of the International Court of Justice a third. If the State receiving the claim fails to appoint its arbitrator within the prescribed period, the person appointed by the President of the International Court of Justice shall be the sole arbitrator. The Arbitration Commission shall take its decisions according to law" and by majority vote. It shall make an award within six months after the date of its establishment and its decisions shall be binding. Sums due in compensation for damage shall be fixed and payable either in the currency of the applicant State or in a freely transferable currency. The periods specified in this article shall not be subject to interruption or suspension. There shall be joinder of claims where there is more than one applicant in respect of damage due to the same event or where more than one State is liable and the damage was caused by more than one space device.

ARTICLE 5 This Convention shall be open for signature by States Members of the United Nations or any of the specialized agencies or parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention. Any such State which does not sign this Convention may accede to it at any time. This Convention shall be subject to ratification or approval by signatory States. Instruments of ratification or approval and instruments of accession shall be deposited with the Secretary-General of the United Nations. This Convention shall enter into force thirty days after the date of the deposit of three instruments of ratification, approval or accession. For each State which deposits its instrument of ratification, approval or accession after the entry into force provided for in the preceding paragraph, this Convention shall enter into force on the date of deposit of such instrument. ARTICLE 6 International organizations which undertake to comply with this Convention shall have the same rights and obligations as assumed by the States members of the organization concerned.

*An alternative might be "take its decisions ex aequo et bonos'

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The claims referred to in article 4 (a) may, in the case of the international organization, be presented through the Secretary-General of the United Nations. ARTICLE 7 Each Contracting Party may notify the Secretary-General of the United Nations of its withdrawal from this Convention not less than five years after its entry into force. Such withdrawal shall take effect one year after receipt of the notice, which must be in writing. Such withdrawal shall not relieve the Contracting Party concerned of any obligation or liability arising from damage inflicted before its withdrawal takes effect. ARTICLE 8 This Convention may be amended or supplemented at the proposal of one or more Contracting Parties. Such amendments shall take the form of additional protocols which shall be binding on such Contracting Parties as ratify, approve or accede to them. Such protocols shall enter into force when the majority of the Contracting Parties to this Convention have thus accepted them. ARTICLE 9 The Secretary-General of the United Nations shall inform signatory States, and those which ratify, approve or accede to this Convention, of signature, the deposit of instruments of ratification, approval or accession, the entry into force of this Convention, proposals for amendments, notifications of acceptance of additional protocols, and notices of withdrawal. ARTICLE 10

This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified true copies to all signatory States and to any State Member of the United Nations which so requests. IN WITNESS WHEREOF the undersigned, duly authorized, have signed this Convention.

B) UNITED STATES OF AMERICA PROPOSAL: CONVENTION CONCERNING LIABILITY FOR DAMAGE CAUSED BY THE LAUNCHING OF OBJECTS INTO OUTER SPACE. A/AC.105/c.2/L.19 A/AC.105/37 ANNEX 11 (14.7.1967) A/6804 ANNEX III APPENDIX II (27.9.1967)

The Contracting Parties, Recognizing that activities in the peaceful exploration and use of outer space may on occasion result in damage, Recalling the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies signed on January 27, 1967, Seeking to establish a uniform rule of liability and a simple and expeditious procedure governing financial compensation for damage,

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Section 1V — Inter-governmental Organizations — General Believing that the establishment of such a procedure will contribute to the growth of friendly relations and co-operation among nations, Agree as follows: ARTICLE I - DEFINITIONS

For the purposes of this Convention (a) "Damage" means loss of life, personal injury, or damage to property whether partial or total. (b) The term "launching" includes attempted launchings. (c) "Launching State" means a Contracting Party, or an international organization that has transmitted a declaration to the Secretary-General under Article V, paragraph 1, of this Convention, that launches or actively and substantially participates in the launching of an object into outer space, or from whose territory or facility an object is launched into outer space, or that exercises control over the orbit or trajectory of such an object. (d) "Presenting State" means a Contracting Party, or an international organization that has transmitted a declaration to the Secretary-General under Article V, paragraph 1 of this Convention, that presents a claim for compensation to a Respondent State. ARTICLE II - LIABILITY

1. The Launching State shall be absolutely liable to pay compensation to the Presenting State, in accordance with the provisions of this Convention, for damage shown to have been caused by the launching, transit or descent of all or part of a space object. 2. If the damage suffered results either wholly or partially from a wilful or reckless act or omission on the part of the Presenting State, or of natural or juridical persons that it represents, the liability of the Launching State to pay compensation under paragraph 1 of this Article shall, to that extent, be wholly or partially extinguished. 3. There shall be no liability under this Convention for damage caused to persons and property within a launch facility or immediate recovery area for participation in or observation of the launch or recovery, or to space objects and their personnel during launching, transit or descent. ARTICLE III - MULTIPLE RESPONDENT STATES

1. If under paragraph 1 of Article II or paragraph 3 of Article V two or more Launching States would be liable to pay compensation, the Presenting State may proceed against any or all such States individually or jointly for the total amount of damages. 2. When the Presenting State proceeds against less than all possible Respondent States, the State or States proceeded against shall within three months give formal notice to any other Launching States which may be involved, and the States so notified shall also become Respondent States and shall participate in the settlement or other disposition of the claim. 3. When a claim has been presented to only one launching State and it does not notify and join other Launching States under paragraph 2 of this Article, it shall pay the entire compensation which is found to be due. If any Launching States are originally joined, or if a Respondent State notifies and joins the other Launching States, any settlement, agreement or judgment shall specify the apportionment of liability among the several Respondent States. 4. If a number of Contracting States co-operate in a launching, and if they reduce the terms of their co-operation to writing and file a copy thereof with the

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UNITED NATIONS Secretary-General of the United Nations, Presenting States shall be on notice as to those terms and shall be bound to observe the proportionate shares of liability assumed by the several Contracting States. If payment of the specified proportionate share has not been made by one or more Respondent States six months after the amount of overall liability has been ascertained, a Presenting State may demand payment from any other Respondent State as provided in Article III, paragraph 6. 5. The amount recoverable by the Presenting State from any one Respondent State shall be reduced to the extent of any compensation received in respect of that claim by the Presenting State from any other Respondent State, so that in no case shall the aggregate of the compensation paid in respect of any one claim exceed the amount which would be payable under this Convention if only one Respondent State were liable. 6. If any one of several Respondent States fails to pay its proportionate share of the overall liability within six months of the date of the ascertainment of the amount due, the Presenting State may demand payment from any or all of the other Respondent States. 7. A Respondent State which has not paid its proportionate share of the overall liability to the Presenting State shall be obligated to reimburse the other Respondent States for their payments in excess of their proportionate shares. 8. The periods specified in this Article shall not be subject to interruption or suspension. ARTICLE IV - MEASURE OF DAMAGES

The compensation which a State shall be liable to pay for damage under this Convention shall be determined in accordance with applicable principles of international law, justice and equity. ARTICLE V - INTERNATIONAL ORGANIZATIONS

1. If an international organization which conducts space activities transmits to the Secretary-General of the United Nations a declaration that it accepts and undertakes to comply with the provisions of the present Convention, all the provisions except Articles XII, XV, XVI, and XVII, shall apply to the organization as they apply to a State which is a Contracting Party. 2. The Contracting Parties to the present Convention undertake to use their best endeavours to ensure that any international organization which conducts space activities and of which they are constituent members is authorized to make and will take the declaration referred to in paragraph 1 of this Article. 3. If within one year of the date on which compensation has been agreed upon or otherwise established pursuant to Article X, an international organization fails to pay such compensation, each member of the organization which is a Contracting Party shall, upon service of notice of such default by the Presenting State within three months of such default, be liable for such compensation in the manner and to the extent set forth in Article III. ARTICLE VI - PRESENTING

A

CLAIM

1. A Contracting Party which suffers damage referred to in Article II, paragraph 1, or whose natural or juridical persons suffer such damage, may present a claim for compensation to a Respondent State or States. 2. A Contracting Party may also present to a Respondent State a claim of any natural person, other than a person having the nationality of a Respondent State, permanently residing in its territory. However, a claim of any individual claimant may be presented by only one Contracting Party.

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Section IV — Inter-governmental Organizations — General 3. A claim shall be presented through the diplomatic channel. A Contracting Party may request another State to present its claim and otherwise represent its interest in the event that it does not maintain diplomatic relations with a Respondent State. 4. Notice of a claim must be presented within one year of the date on which the accident occurred or, if the Presenting State could not reasonably be expected to have known of the facts giving rise to the claim, within one year of the date on which these facts became known to the Presenting State even if the nature or extent of the damages may not be known to the Presenting State. ARTICLE VII - NATIONALS

A State shall not be liable under this Convention for damage suffered by its own nationals or nationals of other Respondent States or by juridical persons beneficially owned by such nationals, to the extent of such ownership. ARTICLE VIII - LIMITATION OF LIABILITY; APPORTIONMENT

with 1. The liability of the Launching State or States shall not exceed respect to each launching. 2. If the total amount otherwise payable with respect to the claims presented exceeds the limit of liability provided by this Article, the following rules shall apply: (a) If the allowable claims are exclusively in respect of loss of life or personal injury, or exclusively in respect of damage to property, such claims shall be reduced proportionately. (b) If the allowable claims are both in respect of loss of life or personal injury and in respect of damage to property, three fourths of the total sum distributable shall be appropriated preferentially to meet claims in respect of damage to property and the portion not already covered of the claims in respect of loss of life and personal injury. ARTICLE IX - EXHAUSTION OF REMEDIES

1. The presentation of a claim under this Convention shall not require exhaustion of any remedies which might otherwise exist in a Respondent State. 2. If, however, the Presenting State, or a natural or juridical person whom it might represent, elects to pursue a claim in the administrative agencies or courts of a Respondent State or pursue international remedies outside this Convention, the Presenting State shall not be entitled to pursue such claim under this Convention against such Respondent State. ARTICLE X - CLAIMS COMMISSIONS

1. If a claim presented under this Convention is not settled within one year from the date on which documentation is completed, the Presenting State may request the establishment of a commission to decide the claim. The competence of such commission shall extend to any dispute arising from the interpretation or application of this Convention. The Respondent State and the Presenting State shall each promptly appoint one person to serve on the commission and a third person, who shall act as a chairman, shall be appointed by the President of the International Court of Justice. If the Respondent State fails to appoint its member within three months, the person appointed by the President of the International Court of Justice shall constitute the sole member of the commission. 2. No increase in the membership of the commission shall take place where two or more Presenting States or Respondent States are joined in any one pro-

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UNITED NATIONS ceeding before the commission. The Presenting States so joined shall collectively appoint one person to serve on the commission in the same manner and subject to the same conditions as would be the case for a single Presenting State. Similarly, where two or more Respondent States are so joined, they shall collectively appoint one person to serve on the commission in the same way. If the Presenting or Respondent States fail to appoint their member within three months, the person appointed by the President of the International Court of Justice shall constitute the sole member of the commission. 3. The commission shall determine its own procedure. 4. The commission shall conduct its business and arrive at its decision by majority vote. Such decision shall state the views of the members of the commission. 5. The decision of the commission shall be rendered expeditiously and shall be binding upon the parties. 6. The expenses incurred in connexion with any proceeding before the commission shall be divided equally between Presenting and Respondent States. ARTICLE XI - CURRENCY

Payment of compensation shall be made in the currency of the Presenting State or a currency convertible readily and without loss of value into the currency of or used by the Presenting State. ARTICLE XII - SETTLEMENT OF DISPUTES

Subject to prior recourse to proceedings under Article X, any dispute arising from the interpretation or application of this Convention, which is not previously settled by other peaceful means, may be referred by any contracting Party thereto to the International Court of Justice for decision. ARTICLE XIII - AMENDMENTS

A Contracting Party may propose amendments to this Convention. An amendment shall come into force for each Contracting Party accepting the amendment on acceptance by a majority of the Contracting Parties, and thereafter for each remaining Contracting Party on acceptance by it. ARTICLE XIV - WITHDRAWAL

A Contracting Party may give notice of withdrawal from this Convention five years after its entry into force by written notification to the Secretary-General of the United Nations. Such withdrawal shall take effect one year from the date of receipt of the notification by the Secretary-General. A State withdrawing from this Convention shall not thereby be relieved of any obligation or liability with respect to damages arising before withdrawal becomes effective. ARTICLE XV - SIGNATURE AND ACCESSION

The Convention shall be open for signature by States Members of the United Nations or of any of the specialized agencies or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party. Any such State which does not sign this Convention may accede to it at any time. ARTICLE XVI - RATIFICATION: DEPOSITORY

This Convention shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the SecretaryGeneral of the United Nations.

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Section IV — Inter-governmental Organizations — GeneraI ARTICLE XVII - ENTRY INTO FORCE

This Convention shall enter into force thirty days following the deposit of the fifth instrument of ratification or accession. It shall enter into force as to a State ratifying or acceding thereafter upon deposit of its instrument of ratification or accession. ARTICLE XVIII - DEPOSITORY'S DUTIES

The Secretary-General of the United Nations shall inform all States referred to in Article XV and all organizations which have made declarations under Article V, paragraph 1 of signatures, deposits of instruments of ratification or accession, declarations referred to in Article V, paragraph 1, the date of entry into force of this Convention, proposals for amendments, notifications of acceptances of amendments, the date of entry into force of each amendment, and notices of withdrawal, and shall transmit to those States and organizations certified copies of each amendment proposed. ARTICLE XIX

This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies of each to the States mentioned in Article XV.

C) HUNGARY REVISED DRAFT CONVENTION CONCERNING LIABILITY FOR DAMAGE CAUSED BY THE LAUNCHING OF OBJECTS INTO OUTER SPACE A/AC.105/C.2/L. 10/REV.1 A/AC.105/37 ANNEX II (14.7.1967) A/6804 ANNEX III APPENDIX II (27.9.1967) The Contracting States Recognizing the common interest of mankind in furthering the peaceful exploration and use of outer space, Recalling the Declaration of Legal Principles Governing the activities of States in the Exploration and Use of Outer Space, adopted by the General Assembly on 13 December 1963 as resolution 1962 (XVIII), Considering that the States and international organizations involved in the launching of objects into outer space should be internationally liable for damage caused by these objects, Recognizing the need for establishing international rules and procedures concerning such liability to ensure protection against damage caused by objects launched into outer space, Believing that the establishment of such rules and procedures would facilitate the taking of the greatest possible precautionary measures by States and international organizations involved in the launching of objects into outer space to protect against damage inflicted by objects launched into outer space,

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UNITED NATIONS Have decided to conclude the present Convention: The scope of liability ARTICLE I

1. The provisions of this Convention shall apply to compensation for loss of life, personal injury or other impairment of health, and damage to property (hereinafter called "damage"): (a) Caused by an object launched into outer space; or (b) Caused in outer space, in the atmosphere or on the ground by any manned or unmanned space vehicle or any object after being launched, or conveyed into outer space in any other way, but they shall not apply to nuclear damage resulting from the nuclear reactor of space objects. 2. Liability is also incurred even if, for any reason, the space vehicle or other object has not reached outer space. 3. For the purpose of this Convention "Space Object" means space ships, satellites, orbital laboratories, containers and any other devices designed for movement in outer space and sustained there otherwise than by the reaction of air, as well as the means of delivery of such objects and any parts thereof. ARTICLE II

1. Liability under this Convention shall not exceed 2. A claim for damage may be advanced on the ground of loss of profits and moral damage whenever compensation for such damage is provided for by the law of the State liable for damage in general. ARTICLE III

Unless otherwise provided in articles IV and V, exemption from liability may be granted only in so far as the State liable produces evidence that the damage has resulted from natural disaster or from a wilful act or from gross negligence of the party suffering the damage. ARTICLE IV

1. Whenever damage is done to a space object or to persons and property on board by another space object, no claim shall arise between each other, except in so far as the claimant State produces evidence that the damage has been caused because of the fault of the other State or of a person on behalf of whom the latter State might present a claim (article VIII). 2. If in the case mentioned in paragraph 1, a claim arises on the part of a third State, liability of the States liable for the space objects shall be joint and several. ARTICLE V

The State shall assume liability for damage caused on the ground, in the atmosphere or in outer space, if the damage occurred while exercising an unlawful activity in outer space or the space vehicle or object was launched for unlawful purposes, or if the damage has otherwise resulted from an unlawful activity. In such cases, the State liable shall be barred from any exoneration whatsoever.

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Section IV — Inter-governmental Organizations — General The subject of liability ARTICLE VI

1. Liability for damage shall rest with the State or international organization which has launched or attempted to launch the space vehicle or object, or in the case of a common undertaking, with all the States participating in the undertaking or with the State from whose territory or from whose facilities the launching was made, or with the State which owns or possesses the space vehicle or object causing the damage. 2. Where liability may be laid upon more than one State or international organization, their liability towards the claimant shall be joint and several. ARTICLE VII

If liability for damage rests with an international organization, the financial obligations towards States suffering damage shall be met by the international organization and by its member States jointly and severally. Claims, payment, arbitration ARTICLE VIII

A claim for damage may be made by a State in whose territory damage has occurred or in respect of damage suffered by its citizens or legal entities whether in the territory of that State or abroad. ARTICLE IX

A claim must be presented within one year of the date of occurrence of the damage, or of the identification of the State that is liable. If the applicant State could not reasonably be expected to have known of the facts giving rise to the claim, the claim must be presented within one year of the date on which these facts officially became known. ARTICLE X

The claim shall be presented through diplomatic channels. The claimant State may request a third State to represent its interests in the event it has no diplomatic relations with the State liable. ARTICLE XI

1. In case the State liable does not satisfy the claim of the claimant State, the claim for compensation shall be presented to a committee of arbitration set up by the two States on a basis of parity. This committee will determine its own procedure. 2. Should the committee mentioned in paragraph 1 not arrive at a decision, the States may agree upon an international arbitration procedure or any other method of settlement acceptable to both States. ARTICLE XII

Claim for compensation for damage caused by a space ship of a foreign State shall not constitute ground for sequestration or for the application of enforcement measures to such space ship.

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Final clauses ARTICLE XIII

1. This Convention shall be open for signature to all States. It shall be subject to ratification. Instruments of ratification shall be deposited with the SecretaryGeneral of the United Nations. 2. It shall enter into force thirty days after the deposit with the SecretaryGeneral of the United Nations of the fifth instrument of ratification. ARTICLE XIV After the Convention enters into force it shall be open for accession to other States. Instruments of accession shall be deposited with the Secretary-General of the United Nations. ARTICLE XV With respect to each State which ratifies the Convention or accedes thereto after the deposit of the fifth instrument of ratification, the Convention shall enter into force thirty days after the date of deposit by the State of its instrument of ratification or accession. ARTICLE XVI Any Contracting State may denounce this Convention by notification to the Secretary-General of the United Nations. The denunciation shall take effect one year after the date on which the notification has been received by the SecretaryGeneral of the United Nations. ARTICLE XVII The Secretary-General of the United Nations shall notify all States concerning: (a) The signature of this Convention and the deposit of instruments of ratification or accession in accordance with articles XIII and XIV; (b) The date of entry into force of this Convention in accordance with articles XIII and XV; (c) Denunciations received in accordance with article XVI. ARTICLE XVIII

The original of this Convention, of which the texts in the Chinese, English, French, Russian and Spanish languages are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall transmit certified copies thereof to all States.

D) OTHER PROPOSALS AND AMENDMENTS SUBMITTED A/AC.105/37 ANNEX II (14.7.1967) A/6804 ANNEX III APPENDIX II (27.9.1967) HUNGARY: PROPOSAL (A/Ac.105/c.2/L.24) In the revised draft convention concerning liability for damage caused by the launching of objects into outer space (A/AC.105/C.2/L.IO/Rev.l) submitted by Hungary: (1) replace sub-paragraph 1 (a) of article I by the following text: "(a) caused by an object during its launching into outer space; or"

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Section IV — Inter-governmental Organizations — General (2) replace paragraph 1 of article VI by the following text: "I. Liability for damage shall rest with the State or international organization which has launched or attempted to launch the space vehicle or object or has procured the launching, or with the State from whose territory or facility the launching was made." HUNGARY: PROPOSAL (A/AC.105/C.2/L.24/ADD.1)

In the revised draft convention concerning liability for damage caused by the launching of objects into outer space (A/AC.105/C.2/L.10/Rev.1) submitted by Hungary, delete paragraph 1 of Article II. ARGENTINA: PROPOSAL (A/AC.105(C.2/L.22)

Definition to be included in the definitions section or article: For the purposes of this Agreement, the term "space vehicle" means any device launched by man, exclusively for peaceful purposes, for the exploration or use of outer space, including the Moon and other celestial bodies, as well as the equipment used for launching and propulsion and any parts detached therefrom. ARGENTINA: PROPOSAL (A/AC.10S/C.2/L.25)

Amendment to articles X and XII of the proposal of the United States of America (A/AC.105/C.2/L.19), to article 4 of the proposal of Belgium (A/AC. 105/C.2/L.7/Rev.3), and to article XI of the proposal of Hungary (A/AC.105/ C.2/L.1 O/Rev.l) : Arbitration commission 1. If a claim presented under this Convention is not settled within one year from the date on which documentation is completed, the Presenting State may request the establishment of a commission to decide the claim. The competence of such commission shall extend to any dispute arising from the interpretation or application of this Convention. The Presenting State and the Respondent State shall each promptly appoint one person to serve on the commission, and the Secretary-General of the United Nations shall appoint a third person, who shall act as chairman, from a list of legal experts which he shall draw up as soon as this Convention enters into force and in which all geographical areas and legal systems shall be represented. If the Respondent State fails to appoint its member within three months, the expert appointed by the Secretary-General of the United Nations shall be the sole arbitrator. 2. No increase in the membership of the commission shall take place where two or more Presenting States or Respondent States are joined in any one proceeding before the commission, the respective members in such cases being appointed collectively. 3. The commission shall establish its own procedure. 4. The commission shall conduct its business and arrive at its decision by majority vote. Such decision shall state the views of each member of the commission, which shall be published. 5. The decision of the commission shall be rendered within six months and shall be binding upon the parties. 6. The expenses incurred in connexion with any proceeding before the commission shall be divided equally between Presenting and Respondent States.

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"Damage" means loss of or injury to life and destruction or loss of or damage to property of persons, natural or juridical, caused on the earth, in the air or in outer space by the launching of a space object or in the course of its journey and will include damage caused by persons or things carried by it. Damage may be instant or delayed, direct or indirect. CANADA: PROPOSAL (A/AC.105/C.2/L.27)

"Damage" means loss of Iife, personal injury or other impairment of health, or damage to property of States or of persons, natural or juridical. Definitions Text provisionally agreed upon by Working Group II (WG.II/31 and Corr. 1) "Damage" means loss of life, personal injury or other impairment of health, or damage to property of States or of their persons, natural or juridical, or of international organizations. Definitions Points on which agreement was reached (WG.II/32) A. The term "launching" should include "attempted launching." B. In defining the term "Launching State" the following elements should be included:* 1. the State which launches or attempts to launch the space object or the space device, 2. the State from whose territory the space object or the space device was launched, 3. the State from whose facility the space object or space device was launched. Field of application Points on which preliminary agreement was reached in Working Group II (WG.II/33/Rev.1) Extent of Agreement on Exemptions The provisions of this Convention shall not apply to damages sustained by: (a) Nationals of the Launching State; (b) Foreign nationals in the immediate vicinity of a planned launching or recovery area as the result of an invitation by the Launching State. No agreement was reached on whether the Convention should apply to damages sustained by: (a) Persons who are permanent residents but not nationals of the Applicant (Presenting) State; (b) A spacecraft and its personnel during launching, transit or descent. Belgium, Hungary and the United States: Extent of Agreement on Presentation of a Claim (WG.II/34) 1. A claim may be presented by the Applicant (Presenting) (claimant) State through the diplomatic channeL `The question whether the States referred to in (2) and (3) above should be liable primarily, or only secondarily (if the State referred to in (1) above cannot be identified) was left for further consideration.

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Section IV — Inter-governmental Organizations — General 2. In the event the Applicant (Presenting) (claimant) State does not have diplomatic relations with the Launching (Respondent) State, the former may request a third State to present its claim and otherwise represent its interests. Belgium, Hungary and the United States: Extent of Agreement on Presentation of a Claim Addendum (WG.II/34/Add.l) Add as a second sentence to paragraph 1 of WG.II/34: "Presentation of a claim under the Convention shall not require the prior exhaustion of any local remedies that may be available in the Launching (Respondent) State." Belgium, Hungary and the United Stales: Extent of Agreement on Arbitration in the Event of Dispute (WG.II/35) If a claim presented under the Convention is not settled within six months from the date on which the Applicant (Presenting) (claimant) State completes its documentation, the Applicant (Presenting) (claimant) State may refer the matter to an arbitral commission. Field of application Belgium, Hungary and United States (WG.II/36) Extent of Agreement on Exemptions The provisions of this Convention shall not apply to damages sustained by: (a) Nationals of the Launching State; (b) Foreign nationals in the immediate vicinity of a planned launching or recovery area as the result of an invitation by the Launching State. No agreement was reached on whether the Convention should apply to damages sustained by: (a) Persons who are permanent residents but not nationals of the Applicant (Presenting) State; (b) A spacecraft and its personnel during launching, transit or descent. POLISH DELEGATION: PROPOSAL (WP.II/37)

Insert at the beginning of article VII of the Hungarian draft: "The provisions of this agreement shall apply mutatis mutandis to international organizations which engage in activities in outer space." United Kingdom: Proposed amendment to Art. V (3) of the United States draft (p.7 of A/AC.105/C.2/W.2/Rev.4) (WG.II/38) Insert "individually or jointly" before the word "liable" (3rd line from bottom). ARGENTINA AND ITALY: JOINT PROPOSAL (wc.H/39)

Add the following after article 3 of the Belgian proposal, article HI, paragraph 1, of the United States proposal or article VI, paragraph 2, of the Hungarian proposal, whichever is adopted as the final text on joint liability: "The apportionment, among the States or international organizations liable, of the total amount of compensation jointly owed to the victim may be determined by prior agreements."

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Belgium, Hungary and the United States: Extent of Agreement on Field of Application (WG.II/40) The Launching (Respondent) State should be absolutely liable to pay compensation for damage caused on the surface of the Earth and to aircraft in flight. Note: No agreement was reached whether the Launching (Respondent) State should, on proof of fault, be liable to pay compensation for damage caused to space objects which have left the surface of the Earth. Belgium, Hungary and the United States: Extent of Agreement on Liability of International Organization (WG.II/41) International organizations that launch objects into outer space should be liable under the convention for damage caused by such activities. Note: No agreement was reached on the question whether the individual and joint liability of the States members of the international organization that are parties to the liability convention: (a) should be residual and arise only in the event of default by the international organization, or (b) should arise at the same time as the liability of the international organization. Belgium, Hungary and the United States: Extent of Agreement on Liability of International Organization (WG.1I/41/Add.l) Addendum Add to the Note a second paragraph reading as follows: "Nor was agreement reached on the question of the rights of international organizations under the Convention. This problem requires further consideration." Belgium, Hungary and the United States: Extent of Agreement on Time Limits for Presentation of Claims (WG.II/42) 1. A claim may be presented not later than one year following the date of the occurrence of the accident or the identification of the party that is liable. 2. If the Applicant (Presenting) (claimant) State does not know of the facts giving rise to the claim within the aforementioned one-year period, it may present a claim within one year following the date on which it learned of the facts; however, this period shall in no event exceed one year following the date on which the Applicant (Presenting) (claimant) State could reasonably be expected to have learned of the facts through the exercise of due diligence. 3. The above-mentioned time limits shall apply even if the full extent of the damage may not be known. In this event, however, the Applicant (Presenting) (claimant) State shall be entitled to revise its claim and submit additional documentation beyond the above-mentioned time limits until one year after the full extent of such dagame is known. FRENCH DELEGATION: PROPOSAL (WG.II/43 )

When a space activity is undertaken by more than one State, the State which procures the launching shall be held liable for compensation for damage caused in the circumstances stated in articles —

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Section IV — Inter-governmental Organizations — General (Any arrangements for the apportionment of the amount of compensation payable will be a matter for the States participating in the activity in question to agree on among themselves.) ITALIAN DELEGATION: PROPOSAL (WG.II/44)

Definitions "Launching State" means a State which launches or procures the launching of a space object registered in its name. The international organizations referred to in article — shall be treated for the purpose in the same way as States.* Field of application of the Convention on Liability "This Convention shall apply to any damage caused on land, in the air and in outer space, with the sole exception of such damage as may be caused during the launching of a space object, at the launching-site."" Nature of liability Working Paper submitted by the Italian delegation The Italian delegation is reproducing herewith, as a Working Paper and as a general guide on the question of liability, the text of the articles concerning liability contained in a preliminary draft convention on the peaceful uses of outer space submitted to the President of the United Nations General Assembly in 1959. The Italian delegation has already stated that, in its view, liability for damage caused by outer space activity cannot be equal (of the same nature) in all cases of damage, whether occurring on the surface of the earth, in the air, or in outer space. The Italian delegation is aware that the attached articles (whose scope is very general and, so to speak, in the sphere of ordinary law) cannot be reproduced in the draft instrument on liability which the Sub-Committee is at present discussing, inasmuch as the draft in question is rightly concerned only with the international responsibility of States and international organizations. The Italian delegation thinks, however, that the basic idea embodied in the articles of the attached document should be accepted, namely, that: (a) in the case of damage caused on the surface of the earth, it is right to apply the principle of absolute liability, the sole exception being that of fault on the part of the victim; (b) in the case of damage occurring in the air, i.e. mainly in the case of collision between a space object and an aircraft, the principle to be applied is, on the contrary, that of ordinary-law liability based on fault, there being a presumption furis tantum of fault against the space object; (c) the same principle of liability because of fault is also to be applied in the case of damage occurring in outer space (mainly in the case of collisions *NOTE: This provision will greatly help the victims of the damage and will prompt States participating in a launching to make arrangements among themselves in advance. "Notre: The last-mentioned category of damage may be considered to be the domestic affair of the State in whose territory the launching is carried out. All other damage should come within the scope of the Convention for the very good reason that, during flight, orbit or reentry, the activity concerns the international community. What Is more, it would be inadvisable to make too many execeptions to the best uniform international rule from the technical and practical point of view.

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UNITED NATIONS between space objects) but with a presumption juris tantum of fault on both sides, so that the two last cases ((b) and (c)) would be open to proof of the contrary.

2.

Assistance to astronauts

A) UNION OF SOVIET SOCIALIST REPUBLICS AGREEMENT ON THE RESCUE OF ASTRONAUTS IN THE EVENT OF ACCIDENT OR EMERGENCY LANDING A/AC.105/C.2/L.18* A/AC.105/37 ANNEX I (14.7.1967) A/6804 ANNEX III APPENDIX I (27.9.1967) The Contracting Parties, Noting the great importance of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, which enunciated the principle of rendering all possible assistance to astronauts in the event of accident, distress or emergency landing, Desiring to develop and give concrete expression to that principle, Prompted by sentiments of humanity, Have agreed on the following: ARTICLE I Each Contracting Party which receives information or discovers that personnel of a spacecraft of another State have suffered accident or are experiencing conditions of distress or have made an emergency landing in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State: (a) shall do its utmost to notify without delay the State which announced that it had launched the spacecraft concerned; (b) shall immediately notify the Secretary-General of the United Nations; (c) shall immediately make a public announcement by radio or through other means of communication at its disposal. ARTICLE 2 If, owing to accident, distress or emergency landing, astronauts have appeared in territory under the jurisdiction of one of the Contracting Parties, this Contracting Party shall immediately take all possible steps to rescue the astronauts and to render them the necessary aid. It shall inform the State which announced that it had launched the spacecraft concerned, and also the Secretary-General of the United Nations, of the steps it is taking of their result. ARTICLE 3 Each Contracting Party shall extend every assistance to another Party to this Agreement which has requested its aid for the purpose of ensuring the speediest possible discovery and rescue of astronauts in the event of accident, distress or • Reissued for technical reasons.

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Section IV — Inter-governmental Organizations — General emergency landing. Such assistance may include permission to the State which announced the launching of the spacecraft to carry out with the use of the necessary means and the personnel to operate them, the search for and rescue of the astronauts who have landed in the territory of that Contracting Party. ARTICLE 4 If information is received or it is discovered that astronauts have alighted, owing to accident or distress, on the high seas or in any other place not under the jurisdiction of any State, those Contracting Parties which are in a position to do so, shall extend assistance to the State which announced that it had launched the spacecraft concerned, in carrying out search and rescue operations for the astronauts. ARTICLE 5 The expenses incurred by a Contracting Party in meeting the requests for assistance made by the State which announced that it had launched the spacecraft concerned, shall be reimbursed by that State. ARTICLE 6 1. This Agreement shall be open to all States for signature. Any State which does not sign this Agreement before its entry into force in accordance with paragraph 3 of this article may accede to it at any time. 2. This Agreement shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the Governments of — which are hereby designated the Depositary Governments. 3. This Agreement shall enter into force upon the deposit of instruments of ratification by five Governments including the Governments designated as Depositary Governments under this Agreement. 4. For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Agreement, it shall enter into force on the date of the deposit of their instruments of ratification or accession. 5. The Depositary Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification of and accession to this Agreement, the date of its entry into force and other notices. 6. This Agreement shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations. ARTICLE

7

Any State Party to the Agreement may propose amendments to this Agreement. Amendments shall enter into force for each State Party to the Agreement accepting the amendments upon their acceptance by a majority of the States Parties to the Agreement and thereafter for each remaining State Party to the Agreement on the date of acceptance by it. ARTICLE 8 This Agreement, of which the Russian, English, French, Spanish and Chinese texts are equally authentic, shall be deposited in the archives of the depositary Governments. Duly certified copies of this Agreement shall be transmitted by the Depositary Governments to the Governments of the signatory and acceding States.

386

UNITED NATIONS B) UNITED STATES OF AMERICA INTERNATIONAL AGREEMENT ON ASSISTANCE TO AND RETURN OF ASTRONAUTS AND OBJECTS LAUNCHED INTO OUTER SPACE

A/AC.105/c. 2/2.9 A/AC.105/37 ANNEX I (14.7.1967) A/6804 ANNEX III APPENDIX I (27.9.1967)

The Contracting Parties, Recognizing the common interest of mankind in furthering the peaceful uses of outer space, Recalling the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, adopted by the General Assembly on 31 December 1963, as resolution 1962 (XVIII), Considering that the personnel of spacecraft may from time to time be the subject of accident or experience conditions of distress, Considering that there may occur landings of objects launched into outer space, and their personnel in the case of manned spacecraft, by reason of accident, distress or mistake, Wishing to do their utmost to assist the personnel of spacecraft in such cases and to provide for the return of objects launched into outer space, and Believing that in such circumstances the action of States should be governed by common humanitarian concern and with due regard for scientific needs, Agree as follows: ARTICLE 1

1. A Contracting Party which discovers that the personnel of a spacecraft have met with accident or are experiencing conditions of distress, or have made an emergency landing, shall notify without delay the State of registry or international organization responsible for launching, or the Secretary-General of the United Nations. 2. A Contracting Party which discovers that an object launched into outer space or parts thereof have returned to Earth shall notify without delay the State of registry or international organization responsible for launching, or the Secretary-General of the United Nations. ARTICLE 2 1. Unless otherwise requested by the State of registry or international organization responsible for launching, each Contracting Party shall take all possible steps to assist or rescue promptly the personnel of spacecraft who are the subject of accident or experience conditions of distress or who may make emergency landings by reason of accident, distress, or mistake. 2. Each Contracting Party shall permit, subject to control by its own authorities of the State of registry oI' international organization responsible for launching to provide measures of assistance as may be necessitated by the circumstances. ARTICLE 3 1. A Contracting Party shall return the personnel of a spacecraft who have made an emergency landing by reason of accident, distress or mistake promptly and safely to the State of registry or international organization responsible for launching.

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Section IV — Inter-governmental Organizations — General 2. Upon request by the State of registry or international organization responsible for launching, a Contracting Party shall return to that State or international organization an object launched into outer space or parts thereof that have returned to Earth. Such State or international organization shall, upon request, furnish identifying data. ARTICLE 4 Any dispute arising from the interpretation or application of this Agreement may be referred by any Contracting Party thereto to the International Court of Justice for decision. ARTICLE 5 A Contracting Party may propose amendments to this Agreement. Amendments shall come into force for each Contracting Party accepting the amendments on acceptance by a majority of the Contracting Parties and thereafter for each remaining Contracting Party on acceptance by it. ARTICLE 6 Any Contracting Party may give notice of its withdrawal from this Agreement two years after its entry into force by written notification to the Secretary-General of the United Nations. Such withdrawal shall take effect one year from the date of receipt by the Secretary-General of the notification. ARTICLE 7 This Agreement shall be open for signature by States Members of the United Nations or of any of the specialized agencies or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party. Any such State which does not sign this Agreement may accede to it at any time. ARTICLE 8 This Agreement shall be subject to ratification or approval by signatory States. Instruments of ratification or approval and instruments of accession shall be deposited with the Secretary-General of the United Nations. ARTICLE 9 This Agreement shall enter into force upon the deposit of the second instrument of ratification, approval, or accession. It shall enter into force as to a State ratifying, approving, or acceding thereafter upon deposit of its instrument of ratification, approval, or accession. ARTICLE 10

The Secretary-General of the United Nations shall inform all States referred to in Article 7 of signatures, deposits of instruments of ratification, approval, or accession, the date of entry into force of this Agreement, proposals for amendment, notifications of acceptances of amendments, and notices of withdrawal. ARTICLE 11

The original of this Agreement, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the SecretaryGeneral of the United Nations, who shall send certified copies thereof to all States referred to in Article 7. 388

UNITED NATIONS UNITED STATES: PROPOSAL (WG.I/ 35)

ARTICLE 4 Assistance outside the territory of a Contracting Party If information is received or it is discovered that personnel of a spacecraft have suffered accident, are in distress, or have made an emergency landing, on the high seas or in any other place not under the jurisdiction of any State, and the Launching State is not in a position immediately to undertake effective search and rescue operations, such operations shall be conducted, in close and continuing co-operation with the Launching State, by those Contracting Parties which are in a position to do so. The operations shall be conducted in a manner designed to assure speedy rescue and taking account of requests and technical advice from the State which announced the launching.*

C) AUSTRALIA AND CANADA REVISED PROPOSAL ON ASSISTANCE TO AND RETURN OF ASTRONAUTS AND SPACE OBJECTS SUBMITTED AS A WORKING PAPER

A/AC.105/C.2/L.20 A/AC.105/37 ANNEX I (14.7.1967) A/6804 ANNEX III APPENDIX 1 (27.9.1967) The Contracting Parties, Recognizing the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes, Desiring to promote the further development of international co-operation in the exploration and use of outer space, Recalling Resolution 1962 (XVIII) entitled "Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space," which was adopted unanimously by the United Nations General Assembly on 13 December 1963, Noting the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies signed on 27th January 1967 and in particular Articles V and VIII of that treaty, Prompted by sentiments of humanity and having regard for the needs of science, Agree as follows: Definition Article For the purposes of this Agreement: (a) "Launching State" ... . (b) "Space Object" means an object or any of its component parts which a Launching State has launched or attempted to launch into outer space. ARTICLE 1

(1) Each Contracting Party shall, in accordance with the provisions of the present Agreement and using every appropriate means at its disposal, assist the *This text replaces the second sentence of paragraph I of Article 2 of the USA draft (A/AC. 105/C.2/L.9).

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Section IV — Inter-governmental Organizations — General personnel of spacecraft in the event of accident, distress or emergency landing and safely and promptly return them to the Launching State. (2) With a view to ensuring the return to the Launching State of a space object discovered beyond the limits of the territory under the sovereignty jurisdiction or control of that State, each Contracting Party shall, in co-operation where appropriate with other States, carry out the duties provided for in the present Agreement. ARTICLE 2 A Contracting Party which receives information or discovers that personnel of a spacecraft have suffered accident or are experiencing conditions of distress or have made an emergency landing: (a) shall do its utmost immediately to ascertain and notify the Launching State; (b) if it cannot readily ascertain the Launching State, shall forthwith notify the State it presumes to be the Launching State; (c) shall immediately notify the Secretary-General of the United Nations. ARTICLE 3 (1) If, as a result of accident, distress or emergency landing, personnel of a spacecraft are in territory under the sovereignty, jurisdiction or control of a Contracting Party, such Contracting Party shall promptly take all steps that it finds practicable to locate, rescue and assist the personnel. It shall keep the Launching State, and the Secretary-General of the United Nations, informed of the steps so taken and of their result. (2) If the Contracting Party considers that assistance from the Launching State would contribute substantially to the effectiveness of search and rescue operations, it shall request the Launching State to co-operate with it in such operations, under the direction and control of the Contracting Party. ARTICLE 4 If information is received or it is discovered that personnel of a spacecraft have suffered accident, are in distress or have made an emergency landing, on the high seas or in any other place not under the sovereignty, jurisdiction or control of any State, and the Launching State is not in a position immediately to undertake effective search and rescue operations, such operations shall be conducted, in close and continuing co-operation with the Launching State, by those Contracting Parties which are in a position to do so. ARTICLE 5

A Contracting Party shall safely and promptly return to the Launching State, the personnel of a spacecraft who as a result of accident, distress or emergency have landed in territory under the sovereignty, jurisdiction or control of that Contracting Party, or whom it has rescued elsewhere. ARTICLE 6 (1) A Contracting Party which receives information or discovers that a space object has returned to Earth: (a) shall do its utmost immediately to ascertain and notify the Launching State; (b) if it cannot readily ascertain the Launching State, shall forthwith notify the State it presumes to be the Launching State;

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UNITED NATIONS

(c) shall immediately notify the Secretary-General of the United Nations. (2) A Contracting Party having sovereignty, jurisdiction or control over the territory on which a space object has been discovered shall upon the request of the Launching State take all steps that it finds practicable to recover the object. (3) A Contracting Party which has recovered a space object shall upon the request of the Launching State return the object to that State. (4) Notwithstanding the provisions of paragraphs (2) and (3) of this Article, a Contracting Party which finds that a space object discovered in territory under its sovereignty, jurisdiction or control or recovered by it elsewhere is of a hazardous or deleterious nature may so notify the Launching State, which shall thereupon take prompt and effective steps, under the direction and control of the Contracting Party, to recover the object and to remove it from territory under the sovereignty, jurisdiction or control of the Contracting Party or otherwise to eliminate danger of harm. (5) If in fulfilling its obligations under paragraph (2) or (3) of this Article a Contracting Party considers that assistance from the Launching State would facilitate substantially the recovery or return of a space object, the Contracting Party shall request the Launching State to co-operate with it in recovery or return operations under the direction and control of the Contracting Party. (6) A State which requests the return of a space object shall, if requested by the Contracting Party which has discovered the object in territory under its sovereignty, jurisdiction or control or has recovered it elsewhere, furnish to the Contracting Party identifying data prior to the return of the object. (7) The expenses incurred by the Contracting Party in fulfilling its obligations under the present Agreement in respect of the recovery or the return of a space object shall be reimbursed by the State to which the object is returned. ARTICLE 7 (1) If an intergovernmental organization which conducts or is preparing to conduct activities in outer space deposits with the Secretary-General of the United Nations a declaration that it accepts and undertakes to comply wih the provisions of the present Agreement, those provisions shall apply to that organization in like manner as they apply to a State, and references to a State, or to a Launching State, shall be read and construed accordingly. (2) Each Contracting Party to the present Agreement undertakes to use its best endeavours to ensure that any intergovernmental organization which conducts space activities, and of which it is a constituent member, is authorized to make and will make, the declaration referred to in the preceding paragraph.

D) OTHER PROPOSALS AND AMENDMENTS SUBMITTED A/AC.105/37 ANNEX I (14.7.1967) A/6804 ANNEX III APPENDIX I (27.9.1967) ITALIAN DELEGATION: PROPOSAL (A/AC.105/C.2/L.21 ) Article 1

Any Contracting State, or any international organization, which knows that personnel of a spacecraft have suffered accident, or are in distress, or have made an emergency landing shall (a) immediately notify the State in which the spacecraft is registered and the Secretary-General of the United Nations; 391

Section IV — Inter-governmental Organizations — General (b) immediately make a public announcement by radio or through any other means of communication at its disposal. Note: This text takes into account the texts submitted by the United States and the USSR. (a) It introduces a reference to international organizations; (b) for humanitarian reasons it refers to spacecraft in general, and not to "a spacecraft of another State" as in the USSR draft; (c) it refers to personnel (or crew) and not specifically to astronauts, since everyone on board has a right to assistance for humanitarian reasons; (d) the notification is to be made either to the State of registry or to the Secretary-General of the United Nations; (e) the text should say "knows", and not "discovers"; (f) like the Treaty of January 1967, the text should refer to the State of registry, and not the State which announced the launching. ARGENTINA: PROPOSAL (A/AC.IO5/C.2/L.23)

Include the following in the definitions article: An "astronaut" is a civilian explorer, exclusively for peaceful purposes, who is carrying out his duties as a representative of mankind in outer space, including the Moon and other celestial bodies. Text agreed by Working Group I (WG.I/38) ARTICLE 1

Each Contracting Party which receives information or discovers that personnel of a spacecraft have suffered accident or are experiencing conditions of distress or have made an emergency landing in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State: (b) shall immediately notify the Secretary-General of the United Nations who should disseminate the information without delay through all appropriate means at his disposal; Text. on which preliminary agreement was reached in Working Group I (WG.I/ 39) ARTICLE 1 (a) shall do its utmost to notify immediately the launching State,' UNITED STATES AND THE UNITED KINGDOM: PROPOSAL (WG.I/40) ARTICLE 1

Each Contracting Party which received information or discovers that personnel of a spacecraft have suffered accident or are experiencing conditions of distress or have made a landing whether in an emergency or by mistake in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State: (a) shall do its utmost to notify immediately the launching State;" 'a) The term "launching State" might be subject to definition later. b) No agreement was reached on the question of the inclusion of the words "or international organizations" in this provision. The question was deferred for further consideration.

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(b) shall immediately notify the Secretary-General of the United Nations who should disseminate the information without delay through all appropriate means at his disposal; (c) shall, if it cannot readily identify the launching State, immediately make a public announcement by any appropriate means at its disposal. AUSTRALIA, CANADA AND THE USSR: ASSISTANCE IN THE TERRITORY OF A CONTRACTING PARTY

(WG.I/41)

ARTICLE

(1) If personnel of a spacecraft, who have suffered accident or are experiencing conditions of distress or have made a landing in an emergency,** are in territory under the jurisdiction of a Contracting Party, that Contracting Party shall immediately take all possible steps to rescue the personnel and to render to them all necessary assistance. It shall keep the Launching State*** and the SecretaryGeneral of the United Nations informed of the steps it is taking and of their result. 4 (WG.I/42) If information is received or it is discovered that astronauts have alighted, owing to accident or distress, on the high seas or in any other place not under the jurisdiction of any State, those Contracting Parties which are in a position to do so shall carry out search and rescue operations for the astronauts in close and continuing co-operation with the Launching State. UNITED KINGDOM: PROPOSED REDRAFT OF ARTICLE

CANADA: PROPOSAL

(WG.1/43)

ARTICLE

(1) The Contracting Parties, and in particular Launching States, shall exchange, on a basis of equality, technical and scientific information relevant to the promotion and development of methods and procedures for rescuing the personnel of spacecraft who have suffered accident, are in distress or have made an emergency landing. (2) The Contracting Parties agree to co-operate with a view to the establishment of an international service for the search and rescue of such personnel. AUSTRALIA, CANADA, AND UNITED STATES: PROPOSAL

(WG.I/44)

ARTICLE

Duty to Return Personnel: When the personnel of a spacecraft have made a landing by reason of accident, distress, emergency or mistake, they shall be safely and promptly returned to the authorities of the Launching State or the international organization responsible for the launching. AUSTRALIA, CANADA, AND UNITED STATES: PROPOSAL

(WG.I/45)

ARTICLE

Return of Space Objects: 1. Each Contracting Party which receives information or discovers that a space object has returned to Earth: "The possibility of including "or by mistake," after the word "emergency," has been deferred for further consideration. •*•The question whether the expression "Launching State" or some other expression, as for example "State of Registry" or "State which announced the launching" should be used has been deferred for further consideration. The question whether the expression to be used should also include International organizations has been likewise deferred.

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Section IV — Inter-governmental Organizations — General (a) shall do its utmost to notify immediately the Launching State or international organization responsible for the launching; and (b) shall immediately notify the Secretary-General of the United Nations. 2. Each Contracting Party having jurisdiction over the territory on which a space object has been discovered shall upon the request of the Launching State or international organization responsible for the launching take such steps as it finds practicable to recover the object. 3. When a space object has been recovered by a Contracting Party, that object shall, upon the request of the Launching State or international organization responsible for the launching, be returned to the authorities of the Launching State or of the international organization responsible for the launching. 4. Notwithstanding paragraphs 2 and 3 of this Article, a Contracting Party which finds that a space object discovered in territory under its jurisdiction or recovered by it elsewhere is of a hazardous or deleterious nature may so notify the Launching State or international organization responsible for the launching, which shall immediately take effective steps, under the direction and control of the Contracting Party, to eliminate all danger of harm. 5. If, in fulfilling its obligations under paragraph 2 or 3 of this Article, a Contracting Party considers that assistance from the Launching State or international organization responsible for the launching would facilitate substantially the recovery or return of a space object, the Contracting Party shall request the Launching State or international organization responsible for the launching to co-operate with it in recovery or return operations under the direction and control of the Contracting Party. 6. A State or international organization which asks a Contracting Party for the return of a space object shall, upon request, furnish to the Contracting Party identifying data prior to the return of the object.

3.

Definition of outer space

PROPOSALS CONCERNING QUESTIONS RELATIVE TO THE DEFINITION OF OUTER SPACE AND THE UTILIZATION OF OUTER SPACE AND CELESTIAL BODIES, INCLUDING THE VARIOUS IMPLICATIONS OF SPACE COMMUNICATIONS A/AC.105/37 ANNEX III (14.7.1967) A/6804 ANNEX III APPENDIX III (27.9.1967) A) FRANCE PROPOSAL—QUESTIONNAIRE The Legal Sub-Committee of the Committee on the Peaceful Uses of Outer Spaces, Desiring to obtain the technical and scientific documentation it needs to undertake the study requested of it concerning questions relative to the definition of outer space and its peaceful uses, Referring to the programme of work of the Committee on Outer Space (document A/AC.105/CRP.I(IX)) adopted by the Committee at its meeting of April 1967, and in particular to paragraph III (V) thereof relating to the study of the technical aspects of the legal subjects referred to in resolution 2222(XXI), Invites the Scientific and Technical Sub-Committee: I. (a) to draw up a list of scientific criteria that could be helpful to the Legal Sub-Committee in its study relative to a definition of outer space,

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UNITED NATIONS (b) to give its views on the selection of scientific and technical criteria that might be adopted by the Legal Sub-Committee, on the advantages and disadvantages of each of them and on the advisability of giving consideration to one or the other of those criteria or to a combination of some of them, II. (a) to draw up a list of outer space activities which, from the scientific and technical point of view, would appear to be in need of regulation, bearing in mind the specific requirements of the activities and their effects both on land and in air space, and in outer space, including the Moon and other celestial bodies, (b) to suggest the order of priority for the study of such activities and their regulation which would seem to it desirable in the light of technical or scientific considerations, III. (a) to consider the summary records of the —, and — meetings of the Legal Sub-Committee, at which these matters were initially discussed, and to take into account the assumptions, suggestions and questions voiced by the various delegations, (b) to examine the above matters during its 1967 session so as to enable the Legal Sub-Committee to continue its work at its next session. B) ITALY DRAFT RECOMMENDATION

The Legal Sub-Committee of the Committee on the Peaceful Uses of Outer Space, Recalling that the General Assembly unanimously adopted resolution 2222(XXI), to which is annexed the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Recalling that under that resolution the General Assembly reaffirming "the importance of developing the rule of law in this new field of human endeavour," and Requested the Committee on the Peaceful Uses of Outer Space to begin ".. . the study of questions relative to the definition of outer space and the utilization of outer space and celestial bodies, including the various implications of space communications," Considering that the said Treaty sanctions the principle that outer space is res communis, open to exploration and use by all the States of the terrestrial planet for peaceful purposes to the benefit of all mankind and that the same Treaty demilitarizes the said space by prohibiting all military activity therein, Considering that the legal status of outer space is thereby totally different from, and even opposed to, that of air space which, by virtue of a principle universally recognized and sanctioned by all municipal law and international conventions, is subject to the sovereignty of the subjacent States, Considering therefore that it is necessary, and indeed urgent, in order to obviate all uncertainty and possible friction and quarrels between States, to determine how far air space extends and where outer space begins, Decides to request the Scientific and Technical Sub-Committee to consider the following questions: (a) whether it is scientifically possible to determine accurately the line or zone of demarcation between the two types of space, and

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Section IV — Inter-governmental Organizations — General (b) if so, to state at what altitude above sea-level that line or zone of demarcation may be placed, (c) or should it seem scientifically impossible or difficult, owing to the present state of scientific knowledge and differences of opinion among scientists, to determine accurately such line or zone of demarcation, whether it would not be preferable to establish it arbitrarily and, in that case, at what altitude, having regard both to such physical data and practical considerations as may promote the development of activities in outer space and broader co-operation in this field among the States of the earth, without jeopardizing their right to freedom and their territorial security. With that in view, the Legal Sub-Committee asks its Chairman to be good enough to bring this recommendation to the attention of the Chairman of the Scientific and Technical Sub-Committee, and to request him to ensure that his Sub-Committee gives its views as soon as possible so as to enable the Legal SubCommittee to continue its study of the question at its next session.

II. INTERNATIONAL CIVIL AVIATION ORGANIZATION Since space activities have an impact on international civil aviation and are therefore of interest to ICAO, the ICAO Assembly adopted, in 1965, Resolution A15-1 on "participation by ICAO in programmes for the exploration and use of outer space."' Accordingly, the Organization participates normally as an observer at the meetings of the UN Committee on Peaceful Uses of Outer Space, and of its Legal and Technical Subcommittees. It is also represented at most meetings on the peaceful exploration and use of outer space held under the auspices of other specialized agencies, in particular ITU, WHO, and WMO. Under the above-mentioned Assembly resolution, the Secretariat has initiated a Study of the Technical Aspects of Space Activites of Interest to ICAO. A progress report on that Study was considered by the Council on 21 March 1967 (13th Meeting of its 60th Session). On this occasion the Representative of France stated that "he considered it extremely important that ICAO Representatives at the periodic UN meetings on the utilization of outer space should make it clear that the requirements of international civil aviation with respect to applications of space technology should be established within the framework of ICAO"; the President of the Council gave assurance that this was in fact done at every appropriate opportunity. The Secretary General felt it his duty to inform the Council that "notwithstanding the efforts made, it has not been practicable for the Secretariat, within the existing resources, to participate in all activities where space matters of direct interest to civil aviation were being considered." The Councel noted that the Air Navigation Commission had placed on its work programme the following items: aeromobile satellite communications; direct aeronautical use of meteorological satellite data; and the medical, meteorological, and 1. See Yearbook of Air and Space Law, I965, p. 588.

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communications aspects of ionizing radiation of extra-territorial origin. The Air Navigation Commisson was asked to consider in its next review of its Technical Project List "whether the possibility of using space satellites in aircraft positioning was adequately covered by the item on aeromobile satellite communications and by its instruction to the Secretariat to keep in close touch with developments in the field of aeromobile satellite communications including the possible use of such satellite systems for ATC surveillance of air traffic over ocean areas." The Council also took note of the Secretary General's plans with respect to the participation of ICAO in the United Nations Conference on the Exploration and Peaceful Uses of Outer Space and of an outline of the Organization's action on space matters for submission to the Administrative Committee on Co-ordination (ACC). Furthermore, the Council agreed that until the 16th Session of the Assembly, the Secretary General should "maintain liaison with international organizations dealing with space matters, arrange for representation at meetings where space subjects of direct interest to international civil aviation would be considered and inform the Council of any developments of particular interest and of any associated special measures that may appear desirable." With respect to ICAO's collaboration with other specialized agencies, the President of the Council added that "the ICAO position vis-å-vis the ITU and WMO, for instance, would be that there should be the same division of responsibilities between them and ICAO for international action on outer space matters of direct interest to international civil aviation as there was for international action on other matters of direct interest to international civil aviation."2 It appears that space activities in which ICAO has definite interest fall mainly under the following headings: matter of common user interests, direct application of space techniques to aviation, and indirect technological benefits for aviation.3 Airspace is naturally of common use for aircraft and spacecraft. However, as the Secretary General reported to the Council on 23 February 1967,4 "no problem [associated with such common use] has come to the attention of the Secretariat in the last fifteen months." In subsequent reports to the Council no further reference was made to that problem. In this field communications are another instance of common user. ICAO is collaborating particularly with ITU in order to ensure that the allocation of frequency bands for space radio communication purposes does not jeopardize the use of frequencies in the same parts of the frequency spectrum used by aviation. Many space activities are already beneficial for aviation. Thus, a demonstration, in 1968, of two-way voice communications between air2. 13th Meeting of the 60th Session of Council. 3. The following survey Is based mainly on the Reports of the Secretary General to the Council dated 23 February and 9 November 1967; C-WP/4573 and 4705. 4. Doc. 8662C/969-1.

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Section IV — Inter-governmental Organizations — General craft and ground stations via the NASA Satellite ATS-1 has shown that the use of communications satellites may improve both the Aeronautical Mobile Service and the Aeronautical Fixed Service. In a related field, the ICAO COM/OPS Divisional Meeting, held in 1966, expressed ICAO's interest in the use of satellites for the surveyance of air traffic, which are likely to meet special needs of civil aviation. Hence ICAO is participating in the studies relating to the establishment of a navigation satellite system undertaken by a United Nations Working Group. Civil aviation is also benefiting already from the increasing usefulness of meteorological satellites which have improved flight planning, pilot briefing, and weather forecasting. In line with recommendations of the MET/OPS Divisional Meeting of 1964, ICAO is watching closely developments in that field. Information gathered by space activities on cosmic radiation appears to be of importance for civil aviation when supersonic aircraft come into operation. For this reason ICAO has undertaken a study of the effect of ionospheric-dependent telecommunications of the radio-frequency bursts associated with solar flare activity. The "indirect technological benefits" derived for aviation from space activities are conveniently exemplified by two instances reported by the ICAO Secretariat, namely:6 (a) An important potential "spin-off" to aviation is the development of new skills and techniques related to the operation of large complex projects. The space programme has brought together technical and managerial disciplines to a degree never before approached on a large scale. There can be little doubt that optimum utilization of the next generation of transport aircraft, both subsonic and supersonic, will call for something approaching the same level of applied scientific logic and mutual understanding. 5. C-WP/4536. 6. The possible usefulness of navigation satellites for air traffic control services has been described as follows by ICAO: "Of particular interest in the [NASA] ATS-C programme is the inclusion of experiments that relate to the evaluation of various techniques for the surveillance of air traffic. The simplest of these is a satellite-to-aircraft range measurement system. Of course, with only one satellite being employed a full fix will not be available on the ground, but an analysis of the observed ranging errors from only one satellite will provide an indication of the potential usefulness of such a facility as part of a navigation services satellite system. A somewhat more elaborate ATS-C experiment that may also lead to a satellite air traffic surveillance system is known as OPLE (Omega Position Location Experiment). OPLE involves the carriage in the aircraft of a simple radio receiver to detect the transmissions of the Very Low Frequency Omega long-distance navigation system. In OPLE there is no need for the aircraft to carry the complex phase comparison, computing and display elements of the full Omega receiving equipment . . While the aircraft will not have knowledge of its OMEGA position, it is simple to extend the concept of the OPLE surveillance system to a full in-flight position determination"; see AN-WP/3362. On this subject the Representative of France offered the following comments during the 13th Meeting of the 60th Session of the Council: "Then there [was] the related question of whether satellites working on very high frequencies should be used at once or whether it would be better to aim at the development of a system using ultra high frequencies which could, for example, be expected to involve the installation on aircraft of antennae of much greater capacity and less bulk than would be required for the use of a VHF satellite system."

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(b) Aviation medical problems on which the impact of space developments has already been considerable include evaluation of pilots' heart function on the ground and in flight, radio-telemetry or inflight biological data, visual and other effects of vibration, diurnal physiological rhythms, and the radiobiology of SST operation.'

III. INTERNATIONAL TELECOMMUNICATIONS UNION PROGRESS REPORT ON ACTIVITIES BETWEEN MAY 1966 AND APRIL 1967*

1. International Radio Consultative Committee (CCIR) The CCIR held its XIth Plenary Assembly in Oslo in Summer 1966. The assembly approved the conclusions of the CCIR Study Group IV (space systems and radio-astronomy). It also reviewed the results of the Interim Meeting of that Study Group held in Monte Carlo in 1965. At the present time this Study Group has to its credit 22 Recommendations, 36 Reports, and 1 Opinion. A further 26 new items were adopted for study. All these texts are published in Volume IV of the Conclusions of the XIth Plenary Assembly of the CCIR... . The following list of the contents of Volume IV will give a fair impression of the extent of CCIR Studies on space subjects: 1. General; 2. Communication satellites; 3. Direct broadcasting by satellites; 4. Radionavigation by satellites; 5. Meteorological satellites; 6. Maintenance telemetering, tracking, and telecommand; 7. Space research; 8. Radioastronomy; 9. Radar astronomy ... . The problem of sharing frequency bands has been foremost in the mind of the CCIR since its founding in 1927. It was on the recommendation made by the CCIR during its Xth Plenary Assembly held in 1963 that the Extraordinary Administrative Conference on Space, held later in that year, was able to revise the frequency allocation table to include space systems and radioastronomy and to adopt administrative measures for the orderly registration of frequencies for these radio services. One subject which is of great importance and which had given rise to long discussions was the maximum aIIowable power flux density at the surface of the earth produced by communication satellites. When satellite communication was first considered, little thought was given to the possibility of using stationary satellites. However, after the success of SYNCOM satellites, this type became of considerable importance in view of the advantages to be expected, especially in the design of earth stations, whose huge antennae would no longer need complicated tracking equipment. However, the plane of a stationary satellite must coincide with that of the equator of the earth, so that unless it is launched at a point on the equator of the earth, auxiliary equipment has to be carried in the satellite to re-orient its orbital plane to that of the earth's equator. The communication satellites of the Molniya series launched by the USSR, make use of elongated elliptical orbits. Stationary satellites present an interference problem different from other cases, in that being stationary, the interference they might produce, as well as that produced by associated earth stations, would affect fixed areas on the earth's surface and the concept of the 7. From C-WP/4536. *Extract from the SIxth Report by the International Telecommunication Union on Telecommunication and the Peaceful Uses of Outer Space (1967).

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Section IV — Inter-governmental Organizations — General limitation of the strength of this interference for a prescribed percentage of time has to be modified. Under these conditions, the orientation of the antenna systems is of considerable importance in considering interference to stations sharing the same frequencies. In response to a recommendation of the Extraordinary Administrative Radio Conference on Space, the CCIR Oslo Plenary Assembly revised the procedure for calculation of the distance within which Administrations planning or using radio relay or satellite systems should consult amongst themselves (commonly known as the coordination distance). In addition to the interference problem connected with stationary satellites mentioned above, it has revised its technical factors to take into account the shielding effect of mountains and obstacles along transmission paths. Thus the CCIR has developed Recommendation 359-1 and Report 382 for the IFRB to use as a basis for future work in solving interference problems between communication satellite and terrestrial systems. Many factors enter into consideration in designing a multiple access communication satellite system, such as power of the satellite transmitter, earth station receiver characteristics, channel capacity, orbit parameters, method of modulation, multiplexing technique, etc. These have been discussed in new CCIR Report 213-1. No recommendation, however, has been issued on this subject. Problems of antenna radiation, propagation, noise of solar and cosmic origin as well as the effects of rain on radomes, etc. have been studied and reports on these subjects approved. Recent results obtained by the CCITT on propagation delay, doppler shifts, and switching discontinuities are also incorporated. While communication satellite systems dominated the scene in the Study Group IV meetings at Oslo, other satellite systems also receive attention. The Report on the frequency requirements of meteorological satellites has been revised to include new data as a result of successes of TOS satellites. On space research, emphasis was placed on the re-entry phase of spacecraft returning to Earth. Difficulties in radiocommunication are experienced owing to the plasma sheath surrounding spacecraft due to intense ionization caused by friction between the spacecraft and the atmosphere. The basic Recommendation (now No. 314-1) on the protection of frequencies used for radioastronomical measurements was modified and better protection of certain frequency bands, such as the Deuterium and OH-lines, was pressed. In radar astronomy, which makes use of very powerful transmitters, frequency sharing presents very difficult problems which are treated in Report 226-1. The problem of the reception of broadcast emissions, including television, from satellites by domestic receivers was given attention in Oslo and Report 215-1 on the subject was prepared in which a large number of technical requirements for such services are defined. However, the means to satisfy many of the technical requirements are not yet evident, so that such a service will require considerable study bfore it can be realized. Since the closing of the XIth Plenary Assembly of the CCIR several new triumphs had been recorded in space exploits. These include, for instance, the successful completion of the Gemini programme, the launching of the INTELSAT II—Pacific and the Molniya-4 communication satellites, and the unprecedented transmission of pictures of the moon's surface by Lunar Orbiter II and Luna-12 space probe. All these, and many others too, would not have been possible without sophisticated radiocommunication. International cooperation is of great importance in this fascinating field, and the CCIR is very much involved in promoting this cooperation.

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2. International Telegraph and Telephone Consultative Committee (CCITT) For its part, the International Telegraph and Telephone Consultative Committee (CCITT) is interested in space telecommunication problems in so far as they affect telegraph and telephone techniques. During 1966, various Study Groups of that organ have pursued the following studies: a) A signalling system (type C) was standardized by the IIIrd Plenary Assembly of the CCITT (Geneva 1964) for an automatic telex service via satellites. Studies are in progress to explore the possibilities of the type A or B signalling systems in operation at present. b) Study Group XI is actively engaged in the study of a new intercontinental signalling system for the telephone services (CCITT System No. 6). This system is designed to take account of the telephone signalling problems raised by satellite communications. c) At its meeting in Brussels in December 1965, Special Study Group A undertook the examination of the data transmission problems that arise when space communication media are used. Since error control by the automatic repeat request system may prove difficult owing to the long propagation time, the use of automatic error correction without retransmission is under study. d) The IIIrd Plenary Assembly adopted a provisional Recommendation on the overall propagation time permissible for an international telephone connection; the limits recommended are of special importance for calls set up via communication satellite systems. Study Group XII met in May 1966 and, after examining the results of tests made in commercial operating conditions, concluded that there was no occasion to amend the recommendation in question for the time being. e) Study Group XIII, which is responsible in particular for the world routing plan for the automatic telephone service, is primarily concerned with the possible effect of connections via satellites on the operation of this Plan. Study Group XVI is considering what recommendations should be made to enable circuits (and groups of circuits) routed on communication satellite systems to be successfully integrated in the existing world telephone network. In particular, it has already drawn up rules for the application of the world routing plan which will enable the propagation time limits mentioned under d) to be observed. f) Study Group II, which is concerned with telephone tariffs, has examined the special problems already raised by the use of circuits via satellites. It is interesting to note that, following studies by the CCITT in 1963 and 1964 on the amendment of the rules for the operation of the intercontinental service, the rates for transatlantic calls have recently been reduced. This decision, of great importance to users, was made possible by the marked increase in the number of transatlantic submarine cable circuits and the introduction of satellite circuits. g) The regional Plan Committees have made an inventory of the possibilities now offered by communication satellites. If the necessary information can be assembled, it should be possible for a definite general programme for the use of satellites in intercontinental communications to be drawn up at the 1967 meeting of the World Plan Committee in Mexico City.

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Section IV — Inter-governmental Organizations — General 3.

International Regulation of Radio Frequency Assignments for Space Communications

Since the publication of the Fifth Report, the International Frequency Registration Board (IFRB) of the International Telecommunication Union has continued to apply the relevant provisions of the Radio Regulations annexed to the International Telecommunication Convention, in connection with frequency assignment notices for Space Communications received from Administrations. One hundred and fourteen such notices were received in the year 1966. The notification and registration procedures in question are defined in Article 9 (revised) and 9A of the Radio Regulations which form part of the Final Acts of the Extraordinary Administrative Radio Conference to allocate Frequency Bands for Space Radiocommunications Purposes, Geneva, 1963. The IFRB adopted and is keeping under review, taking into account the conclusions of the XI Plenary Assembly of the CCIR (Oslo, 1966), the technical standards to be applied for the technical examination of those frequency assignment notices, based on Recommendation No. IA adopted by the EARC Space (Geneva, 1963) with respect to the determination of the distances within which the assignments to stations in the Fixed or Mobile Service are required to be co-ordinated with assignments to Earth stations in the Communication-Satellite Service in those frequency bands allocated to these Services with equal rights. The Regulations providing for the possibility of such co-ordination of the use of frequencies being carried out by the IFRB having been invoked by two Administrations during 1965, the IFRB has continued, during 1966, to give assistance to the Administrations concerned to permit a satisfactory solution of the problems. For one of these Administrations, the co-ordination has already been successfully achieved. In 1966, the IFRB has dealt with frequency assignment notices received from the following Administrations, concerning mainly the establishment or the modification of the following communication-satellite system or experimental programmes a) Belgium European Space Research Organization (ESRO) Notifications were received concerning frequencies to be used for telecommand and telemetering by an Earth station situated at Redu in connection with the programme developed under the auspices of the European Space Research Organization (ESRO). b) Canada Space research satellite system Notifications were received concerning frequencies to be used by space research stations aboard satellites Alouette I and II for telecommand, telemetering, and tracking and by the associated transmitting and receiving stations at Ottawa, Ontario, and Resolute, NWT. c) United States of America ESSA Meteorological satellite Notification was received concerning a frequency to be used by a meteorological space station aboard a satellite of the ESSA series for transmission to receiving stations situated throughout the world.

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Experimental Communication Satellite System In addition to the notifications already received concerning this system, notices were received concerning the Earth stations situated at Clark AFB in the Philippines. Intelsat programme In connection with the establishment of a global commercial communication-satellite system which began with the launching of satellite INTELSAT I into orbit, notifications were received concerning frequencies to be used for transmission from and reception by space stations aboard two new satellites HS-303A to be placed in synchronous orbits over the Atlantic and Pacific Oceans respectively. d) France Experimental Space Research Earth Stations Notification was received concerning a frequency to be used by several experimental space research Earth stations for tracking of various space research craft. e) India Experimental Space Communication system Notifications were received concerning frequencies for experimental use (transmitting, receiving, and tracking) at the Earth station Ahmedabad in communication with satellites of the TELSTAR and ATS series. The assistance of the Board was requested by this Administration in seeking co-ordination with the Administration of Pakistan with respect to stations in the Fixed and Mobile Services. f) Japan Experimental Space Communication system Notifications were received concerning frequencies for experimental use (transmitting and receiving) at the Earth station Ibaraki in communication with a satellite of the INTELSAT programme (HS-303A). g) Pakistan Experimental Space Communication system This Administration requested the assistance of the Board in seeking co-ordination with the Administration of India concerning the implementation of Space Communication stations at Sonmiani and Rangamati. h) United Kingdom of Great Britain and Northern Ireland INTELSAT programme Notifications were received concerning an Earth station situated in Ascension Island participating in this programme. i) Sweden Experimental Space Research programme Notifications were received concerning frequencies to be used for telemetering by an Experimental Space Research Earth station situated at Kiruna and by the related space station SPARMO.

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Section IV — Inter-governmental Organizations — General j) Union of Soviet Socialist Republics Notifications were received concerning frequencies to be used by four Meteorological Space stations for transmission of meteorological data and by the associated receiving Earth stations Khaborovsk, Novosibirsk, and Moskva. Through the IFRB Weekly Circular, all Administrations were regularly informed of the detailed frequency assignment notices received by the Board as well as of the notification of the proposed establishment of communicationsatellite systems.

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Chapter 24

Regional Organizations

I. CONFERENCE EUROPEENNE DES TELECOMMUNICATIONS PAR SATELLITES* EUROPEAN CONFERENCE ON SATELLITE COMMUNICATIONS

1. Organisation C'est le projet de creation, par les Etats-Unis, de l'INTELSAT, qui conduisit les pays europeens å realiser une synthese des organismes de telecommunications et des organismes spatiaux et a treer le premier organisme cooperatif specialise dans les telecommunications par satellites. Une initiative de la France, apres la creation de la COMSAT et pendant les discussions preparatoires å la creation de l'INTELSAT, aboutit å la reunion h Paris, en mai 1963, d'une Conference Europeenne pour les telecommunications par satellites. Son objet etait d'etablir une politique commune des pays de 1'Europe au cours des negotiations qui etaient sur le point de s'engager non seulement avec les Etats-Unis mais aussi avec tous les autres pays du monde occidental qui allaient devenir, en aoüt 1964, les signataires de 1'Accord de Washington. Aucun acte juridique n'a consacre la creation de la Conference qui a tenu plusieurs reunions depuis sa creation et qui se considere de ce fait, comme permanente, sans toutefois constituer une organisation internationale. Font partie de la Conference Europeenne pour les telecommunications par satellites (CETS) les Etats membres de la Conference Europeenne des Postes et Telegraphes (CEPT) qui sont egulement signataires des accords interimaires de Washington creant 1'INTELSAT. A l'heure actuelle le nombre des Etats membres de la CETS est de 14, a savoir : la Republique Federale d'Allemagne, l'Autriche, la Belgique, le Danemark, l'Espagne, la France, l'Italie, la Norvege, les Pays-Bas, le Portugal, le Royaume-Uni, la Suede, la Suisse, et la Cite du Vatican. Sont, en outre, observateurs, la Grece et l'Irlande, ainsi que deux pays non europeens, l'Australie et le Canada. La Conference a tenu, depuis sa creation, sept assemblees plenieres å Paris (mai 1963), Londres (juillet 1963), Rome (octobre 1963, puis mars et juin 1964), Bonn (octobre 1964), La Haye (novembre 'This note was kindly contributed by Mr. M. Bourely, Legal Counsel of ELDO.

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Section 1V—Inter-governmental Organizations—Regional 1966), et Rome (juillet 1967). Entre temps des Comite ont ete constitues et ils ont tenu de tres nombreuses reunions entre les sessions plenieres. Ces Comites sont, d'une part le Comite d'Organisation, chargé des problemes juridiques, administratifs, et financiers, d'autre part, le Comite de Technologie spatiale, chargé des problemes techniques et dont releve un Groupe de Planification technique. Les deux Comites font rapport å un Comite des Suppleants, chargé de preparer les travaux des assemblees plenieres et de prendre s'il y a lieu des decisions provisoires. La Conference dispose d'un secretariat administratif restreint fourni par le Gouvernement britannique et installe å Londres dont les frais de fonctionnement sont partages entre les Etats participants. 2. A ctivites Le role de la CETS est de fournir å l'Europe une tribune qui lui permette de discuter dü role qu'elle peut et doit jouer dans l'organisation, å l'echelle mondiale, des telecommunications par satellites. Cependant, aucune decision contraignante pour les pays membres ne pent otre prise sans l'accord de tous et la Conference est regie par la regle de l'unanimite. De toutes fawns, la CETS ne dispose d'aucun organe executif et ne peut mettre en oeuvre elle-meme les decisions que les gouvernements adoptent sur ses recommandations. Ceci dit, l'activite de la CETS depuis sa creation a ete orientee dans deux directions principales: la coordination de l'attitude des pays europeens vis-A-vis de leurs partenaires des Accords de Washington et la recherche de moyens concrets permettant å l'Europe, dans son ensemble, de disposer d'une position technique et politique favorable lors de la negociation, en 1969, du systeme definitif des telecommunications par satellites. a) LA COORDINATION DE L'ATTITUDE DES PAYS EUROPENS a ete le premier souci de la Conference A ses débuts, et c'est lui qui a justine sa creation. Tous les efforts et toutes les reunions lui ont ete consacres jusqu'A la signature de l'Accord interimaire de Washington d'aoüt 1964. Il faut souligner que la Conference a fait, å ce moment, la preuve de son utilite, puisque les interets des pays europeens ont, pendant les negociations, ete defendus par un porte-parole unique. C'est grace A l'affirmation ostensible de leur solidarite que ceux-ci ont pu obtenir que le caractere exclusif du reseau INTELSAT ne figure pas dans le texte meme de l'Accord, et surtout, que ce dernier ne les lie pas definitivement ce qui eut ete un desastre pour eux dans l'etat d'impreparation technique, economique, et politique où se trouvait l'Europe, en 1964, dans ce domaine. Depuis aoüt 1964, la tåche de la CETS est de concerter autant que faire se petit, l'attitude de ses membres dans les organes trees pour le fonctionnement de l'organisation interimaire. L'impossibilite, a priori, 406

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d'arriver å des decisons obligatoires pour tous est, certes, un handicap, mais la CETS a, du moires, le merite de permettre å ses membres d'echanger des informations et de discuter leurs points de vue respectifs sur les problemes traites å Washington. En outre, et cet aspect de la question tend å devenir de plus en plus important au fur et å mesure que le terme-1970—de l'Accord interimaire s'approche, la CETS doit inciter les pays europeens å definir une position commune avant que s'ouvre la negotiation de l'Accord definitif. Le travail preparatoire est déjà en cours; c'est le recensement des diverses conceptions en cause. Les Comites auront ensuite å en faire la synthese et å rechercher des solutions acceptables par tous, puis å les ajuster en fonction de revolution des negotiations auxquelles participeront—faut-il le rappeler—en plus des Etats-Unis, de nombreux autres pays. b) LA RECHERCHE D'UN PROGRAMME EUROPEEN constitue le møyen par lequel la communaute des pays europeens peut justifier et etayer sa volonte de solidarite face å ses partenaires d'INTELSAT. Si l'Europe fait la preuve qu'elle est capable de construire et de lancer im satellite de telecommunications, le monople technique actuel des Etats-Unis ne pourra plus etre invoque par eux pour imposer leur volonte tant dans la conception du systeme mondial que dans sa gestion. La Conference de Bonn, d'octobre 1964, a reconnu cette idee fondamentale. Le Comite de Planification Technique a donc ete chargé de preparer un plan de developpement pour un satellite europeen de telecommunications. Le rapport de ce Comite, depose en septembre 1966, prevoyait le developpement d'une serie de satellites experimentaux de telecommunications. La Conference de La Haye de novembre 1966 a charge le CERS/ESRO d'effectuer une etude detaillee de ce projet en collaboration avec le CECLES/ELDO en ce qui concerne le lanceur. Le Comite d'Organisation a elabore un projet d'accord multilateral tendant å la mise en oeuvre de ce projet, tandis que le Comite de Technologie spatiale et le Groupe de Planification technique en ont examine les incidences techniques et economiques. Il est alors apparu, en fonction des developpements de la situation pendant que cette etude etait faite, qu'une revision des donnees de base s'imposait pour tenir compte en particulier de la decision de la France et de l'Allemagne de construire elles-memes un satellite experimental. Un nouvel examen du probleme a donc ete ordonne par la Conference de Rome en juillet 1967. C'est la prochaine Conference pleniere de la CETS—prevue pour le printemps 1968 å Copenhague—qui prendra une decision definitive sur l'adoption de ce projet dont la realisation devra alors etre entreprise sans delai pour qu'il puisse produire ses effets au moment escompte, c'est-å-dire å ('occasion de la negotiation des accord mondiaux definitifs. 407

Section IV—Inter-governmental Organizations—Regional II.

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The progress made with respect to the Co-ordination of European Space Activities subsequent to the adoption of Recommendation 461 (1966)' was reviewed in the "Opinion on the First General Report of the European Space Organisation (ESRO) 1964/65" presented by the Economic Committee,2 and in the Report of the Cultural and Scientific Committee on the same General Report of ESRO.a Parts of these reports and the text of the recommendation adopted thereupon by the Consultative Assembly are reproduced hereunder. 1. Co-ordination of European Space Activities4 Since May 1966, when the Consultative Assembly of the, Council of Europe unanimously adopted Recommendation 461 on European Co-operation in the Field of Space, some progress has been made along the lines put forward by the Assembly. The progress has, however, not been spectacular. There are good reasons to repeat each one of the points made in the Recommendation as the situation is still not satisfactory. A turn for the better has, nevertheless, occurred in some areas. The most important are the following ones: Efforts have been made to enlarge the Ministerial Conference of ELDO to a Committee of Ministers of the type suggested by the Assembly to create a policymaking body for all European activities. There are, however, signs that some of ESRO's member States are more hesitant to enter into such discussions. This is even more true for States being neither ESRO nor ELDO members. Some concrete proposals have been made concerning the establishment of an overall European space organisation. The most widely discussed has been an Italian proposal for a "European Space Authority" put forward at the ELDO Ministerial Conference.' CETS has made slow but steady progress along the lines recommended by the Assembly. ELDO has overcome, at least for the moment, the crisis prevalent at the time when the Assembly passed Recommendation 461 (1966). Work on an experimental communications satellite has been initiated by ESRO on behalf of CETS. A Study Committee has started to systematically investigate means to amalgamate the existing space organizations. A Co-ordinating Committee between ESRO, ELDO and CETS has been set up to facilitate the working together of the three organisations. A development for the worse has unfortunately taken place as regards ESRO. The intention to hold a Ministerial Conference in mid-1967 has emerged as a result of the Organisation's difficulties. This meeting might, however, turn out to be a beneficial opportunity to correct and reprogramme ESRO's future activities. Another setback has been the hesitancy of some European governments to take an active part in the discussions on the future space policy and activity of Europe. 1. See Yearbook of Air and Space Law, 1966, p. 593. 2. Consultative Assembly Doc 2165 (9 January 1967). 3. Consultative Assembly Doc 2164 (24 January 1967). 4. Extract from the Report of the Economic Committee. 5. See below, Subsection IV, ELDO [ed.].

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A fruitful dialogue between Governments and Members of Parliament would be fostered by the submittance of annual reports from ESRO, ELDO and CETS, a proof of this being the positive effect which Recommendation 461 (1966) had in helping to solve the ELDO crisis and in opening the eyes of European Governments to the necessity of a co-ordinated space policy and programme. It is regrettable that the Ministerial Conference proposed in Recommendation 461 has not been held. Nevertheless some steps have been taken to set up the necessary institutional machinery since the summer of 1966. The European Space Conference to be held in Paris on December 13 is to be welcomed. The greater the number of Governments that will take part the better the chances will be for substantial progress acceptable to all European countries.° Your Rapporteur finds it important to emphasize that the problems of creating a European space programme are not only a matter of finding an organisational form and an efficient system of management and control by the participating states. The sum of the three existing organisations' programmes does in no way constitute a sufficient European space programme. ESRO's programme of basic research in the space sciences leaves Europe in a situation where no one is charged with the responsibility of creating a European potential in all aspects of space technology. The techniques developed when implementing the ESRO programme, as well as the programmes of ESRO and CETS, do of course often lead to important technological break-throughs in some areas, but not necessarily in all. To develop a full European space capability in an efficient way a programme with a systematically increased technical effort over a wide field of space technology is necessary. Rather than creating a new organisation to establish such a programme, the solution should be to expand ESRO's field of activity into the field of practically and economically significant applied space technology. Conclusion: Second crisis in Europe's space efforts in 1966 requires strong appeal to committee of ministers Mr. Rafton Pounder has in his Report to the Cultural and Scientific Committee put forward an eloquent and excellent analysis of the difficulties encountered in trying to correct and hasten the development towards a European space policy and programme. Taking into account the present situation of ESRO and the probable cause of the organisation's difficulties, the following amendment to the operative part of the draft Resolution is proposed: "(iii) taken measures to strengthen and develop techniques for making cost development plans and for project cost control." The Economic Committee at its meeting on 9th December agreed, in view of the present important stage of development of European space research and technology,7 that it would be timely to put forward to the Assembly, in addition to the proposed draft Resolution, a draft Recommendation addressed to the Committee of Ministers of the Council of Europe, dealing also with European policy on space research and technology in a more general and comprehensive way. The Economic Committee agreed that it would not, before having consulted the Cultural and Scientific Committee, put forward a Recommendation as formal Amendments to the Cultural and Scientific Committee's Report. But it agreed to 6. See Appendix I. (This reference is reproduced in Sub-section III "European Space Conference" (ed.).] 7. CETS Ministerial Conference, Nov. 22-24, 1966; ESRO Council, Nov. 29-Dec. 2, 1966; First European Space Conference, 13.12.66; ELDO Ministerial Conference, 14.12.66; ELDO Council, 17.12.66; ESRO Ministerial Conference, to be held in 1967; Second European Space Conference, to be held in 1967.

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Section IV—Inter-governmental Organizations—Regional submit for consideration that the following points could be included in a draft Recommendation to which it hoped that the Cultural and Scientific Committee would also agrees

2. Some Political Conclusions to be drawn from an examination of ESRO's affairs° A really effective European policy can only be defined or executed when the polices of the individual European countries has become clear. "Surely if we are going to get a communications satellite which will be able to compete with the COMSAT satellite it is worth spending a lot of money?"10 Will all the European countries be prepared to make similar sacrifices?—and will all of them be prepared to reserve sufficient of their comparatively punyll resources for the common European effort, as opposed to bilateral "short cuts"?1' In these circumstances, the task of a parliamentary body setting out to scrutinise progress on any given aspect of space—in this case, space research—is an unenviable one. Should it hasard its own suggested general directives? Or should it instead eschew polemical issues, and concentrate rather on matters of good housekeeping, putting its questions in the form: "Assuming the policy to be sound, is the execution of this or that particular project being conducted in such a way as to give Europe maximum value for her money?" Coming nearer home, ought this Assembly to be concerned with policy, or rather with the mere administration of policy? The day may come when the latter, simpler role will be the Assembly's proper task. Meanwhile, until the Assembly can be sure what Europe's policy is, the broader questions cannot be avoided. Need for political reforms The truth appears to be that modern science and technology are so transforming the nature of public affairs that political forms and institutions are rapidly becoming outmoded. National Government.[ At the level of national Governments, it is now far from clear what are the limits of the responsibilities of Foreign Offices with regard to such international scientific Organisations as ESRO (or ELDO, or CETS). Are they becoming merely the "post-offices" between the technical experts of the other national Ministries, who alone "know what they are talking about"? Once the Organization 8. Since the twelve points suggested were accepted by the Cultural Committee, they are omitted here [ed.]. 9. Extract from the Report of the Cultural and Scientific Committee to the Consultative Assembly (January 1966), Doc.2164 [ed.]. 10. Sir Eric Errington, the UK parliamentary report on ELDO: "Evidence," Q. 467. 11. The USA is spending some £2,000m. annually on space research alone: the whole of Europe is only spending about £60m. and by no means all of that is directed towards ESRO/ ELDO. In the case of the UK, for example, most of the national expenditure on space is devoted towards ELDO and ESRO; in the case of France, by contrast, two thirds of national expenditure is on that country's own national space programme. 12. "If we undertake excessive bilateral engagements and undertakings, I find it difficult to imagine that we shall have the means, financial and otherwise, to accomplish on the panEuropean basis anything worth while in this field." (Dr. Althammer, Bundestag debate of 12th October; verbatim report, p. 3114, col. 2 at letter P.). Dr. Althammer was referring to the recent bilateral arrangements concluded on the one hand by the Federal Republic and the USA in the matter of the space, and on the other hand between France and the USSR in the matter of both space, and science and technology generally. (As to the Franco-Soviet agreements, see Doc. AS/Cult (18) 39.)

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in question has been launched, is it still incumbent upon the Foreign Offices to ensure that the Organisation pursues its task with the necessary dynamism? How is the required coordination between the various individual Ministries to be achieved? Again, how is the feed-back to national industry—the "return on investment"—to be secured? As regards pure science in particular, the fundamental question is: By what yardsticks does one evaluate: —within the space field itself, rival projects of pure research? —the competing claims—for finance, personnel, equipment—of space on the one hand, and the other "big" sciences on the other hand? This "priorities" problem—which is essentially what the new, hybrid discipline of science policy is all about—is notoriously difficult, principally because, as has already been indicated, the scientists themselves can give us no agreed answer to these questions. The result is confusion. This is the very reason why the science policy structure of different European countries (France, the Federal Republic of Germany, the United Kingdom, to name only three) is currently under review. As research, both pure and applied, demands an ever greater measure of state subvention, so the state is lead ineluctably to exercise some measure of direction. Thus on all sides the national machinery for assessment, evaluation and balanced forward planning in the research field is in a state of rapid evolution. At the level of national Parliaments, how is the necessary expertise to be built up, and the indispensable vigilance maintained? Surely the reply given by representatives of this Assembly at the Vienna Conference of May 1963 remains today as valid as ever: the answer can only be, by greater specialisation. In this connection it is gratifying to observe that both the French and the United Kingdom Parliaments are moving resolutely in this direction. As regards the Assemblee Nationale, one recalls the eloquent appeal recently made by Colonel Pierre Bourgoin.13 As far as the House of Commons is concerned, a long and arduous campaign, on the various stages of which your Rapporteur has had the pleasure of reporting from time to time in Committee, has now come to fruition, with the creation of a new Select Committee on Science and Technology.14 International Organisations At the level of the international organisations themselves, to what extent must they gradually supplement the national policymaking machinery, by coming out into the open and advocating policies of their own? Must they wait for crises before doing so, or should they not anticipate such crises? Above all, should they not take the initiative in forging forms of closer institutional co-ordination between themselves? European Parliamentary bodies Finally one comes to the level of European parliamentary bodies. Like the national Parliaments referred to, this Assembly, at least, can congratulate itself on having begun to set its own house in order, by moving in the direction of greater specialisation in these matters. This whole problem of institutional, political reforms has been most aptly summarised by another German parliamentarian, in the Bundestag debate to which reference has already been made: "It is true that our possibilities for 13. Debate on the scientific vote of the Budget: Assembide Nationale, 28th October 1966, 3rd Sitting; Official Report of Debates, page 4050 (col. 1) at para. 8. 14. House of Commons, Parliamentary Debates (Hansard) Vol. 738, No. 117, 14th December 1966, col. 612.

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Section IV—Inter-governmental Organizations—Regional planning research on the frontiers of knowledge are very limited because one cannot know what this will produce, or when it will be produced. But that is not really the problem. The problem is, how can one develop forms of scientific, governmental, and economic organisation such as will make it possible, in some substantial measure, to recognise and evaluate these frontiers in good time?" (Dr. Lohmar).15 Science, pure and applied: two conflicting principles As regards the specific question of ESRO's place in the scheme of Europe's space policy, one is undoubtedly in the presence of two conflicting principles. As the alumnus of an ancient seat of learning, the Rapporteur is well acquainted and indeed sympathetic to, the first of these principles, namely the sanctity of the unfettered, disinterested search for truth—a cause which was recently so ably defended by the distinguished Oxford classicist, Professor Maurice Bowra. As a Member of Parliament and incidentally as one having professional experiences of questions of financial accountability, the Rapporteur is no less familiar with, or sympathetic to, the rival principle of "value for money." There is no easy way out of this dilemma. The very activity of fundamental research constitutes an act of faith. However, when that act of faith is subsidised by the subventions of European governments, faith needs fortification in the shape of reasoned justification... . The Assembly may well be disposed to take a great deal on trust, to make the necessary act of faith, on this, the occasion of ESRO's very first Report .. . At the same time, the Assembly cannot afford to ignore the fact that the winds of change are blowing across the realms of science, as they are through the other fields of public affairs. Traditional attitudes are being transformed. The more States are called on to participate in the organisation, the "input" (and so by implication the "output") of schools, universities, research centres, the more inevitable is it that the classical concept of the scholar in his ivory tower should be modified to meet contemporary conditions. The scientist may not welcome this evolution. If he is politically wise, he will accept its inevitability. It follows that ESRO's present insulation from the pressures of social utility and economic "profitability" cannot survive. Perhaps reform will come in the shape of a fusion of ELDO, ESRO, and ultimately CETS; pending such fusion, the Assembly will no doubt scan future ESRO and ELDO reports for evidence of the success or failure of the Coordinating Committee between these three organisations set up following the ELDO Ministerial Conference of July 1966.16 Alternatively, reform may come in the shape of a more "mission orientated" approach voluntarily adopted by the ESRO authorities themselves ... . It is his hope and belief that the Assembly's new Committee on Science and Technology, whose very purpose it will be to bring the two concepts of pure and applied research into focus, may be able to help ESRO achieve this "new look."

3. European Space Policy and a European Technological Community1T In a future European Technological Community the present space activities and programmes of European countries, both national and bilateral, and of 15. Bundestag debate of 12th October 1966: Verbatim Report p. 3096 (cot 1) at letter A. 16. See below, Appendix 3. [This Appendix is not reproduced here. As regards the ELDO Ministerial Conference of July 1966, see Subsection IV, ELDO (ed.).] 17. Extract from the Council of Europe (Consultative Assembly) Doc. 2243 entitled "Report on European Space Policy." [ad.].

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European organisations ought to become an integral part. This is only natural since a European Technological Community would aim at co-ordinating old and establishing new joint European enterprises in fields where the pooling of scientific research, technological and managerial skills, as well as financial resources are essential. European space research and technology activities—whether national or bilateral or international—form such a field of activity whilst energy (ENEA, CERN, Euratom), aircraft (Concord, Airbus), and computers are among the other fields, where the pressing need exists for amalgamating or integrating them into one European organisation with co-ordinated European policies. In order to be well prepared for all this I submit it is not too early at present to start a preliminary discussion about the way in which this should be organised. This becomes all the more important, if it is true, as Mr. Layton argues in his book "Transatlantic Investments," that the resources invested in research in aircraft and space will be wasted commercially or drained into the vastly stronger American industry unless Europe combines.'8 In this context your Rapporteur would like to submit that as a first contribution to the edifice of a European Technological Community, the important thing in the immediate future is for the European Space Conference of July 1967 and our Member Governments to come to a speedy decision on a European space policy, its orientation and its co-ordinated execution, through one Authority under the auspices of a Committee of responsible Ministers. In this connection it is important not to overlook the possibility that the future institution of a European Technological Community would include not only space matters but aircraft in general, energy, computers, etc. The present organisations created to deal with these areas such as Euratom, European Nuclear Energy Agency (ENEA) and European Organisation for Nuclear Research (CERN) were not constructed with the idea in mind that they would later be fused, or integrated into a European Technological Community. Your Rapporteur therefore submits that a challenge exists for the European Space Conference to construct such a "model" organisation which would be an example for other organisations to follow in adapting to the future institutional and legal requirement and exigencies of a European Technological Community. It may be that the various European technological activities could be established along the lines of the so called independent Agencies in the USA such as the US Atomic Energy Agency, the National Aeronautics and Space Administration (NASA), the Tennessee Valley Authority (TVA) etc., under the overall Authority of the European Technological Community. It is difficult for a politician to avoid the question of the effect which the attitude of the Six to British entry may have on the shape of a European space programme and its organisation. I think everybody will agree that in the final analysis Britain's participation in a European space programme and a European Technological Community will of course hinge on the political and economic committment it is allowed to make to an enlarged EEC .... It would seem desirable for ELDO to examine the possibilities of finding other than purely and exclusively European purchasers. This applies likewise to ESRO and its satellites. If it has not already done so your Rapporteur would suggest that the ESRO and ELDO Councils and Secretariats commence exploring the market at an early date. There is no doubt in your Rapporteur's mind that in the future the demand for launchers and satellites will increase considerably. It is 18. Second ESRO Report (Doc 2236), p. 13.

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Section IV—Inter-governmental Organizations—Regional the one who is the first in the market who gets the largest sales. For example, the World Weather Watch, as presently planned, will need launchers and there is no reason why for the use of the World Meteorological Organisation one or more European launchers and satellites could not be purchased. On this Europe should lay down a firm and well-planned policy in relation to the USA and the USSR. The same would seem to apply with respect to navigational satellites. There must also be more concerted and determined European action to revise to Europe's advantage the Interim Satellite Agreement which comes up for reconsideration in 1969. In the world of tomorrow, it is not unlikely that having regard to educational and cultural programmes, the nations of the world will need to accept using an international body like the UNESCO as a means of spreading educational and cultural programmes, and if that materialises, ELDO launchers and ESRO satellites ought to enter the market. Moreover, Africa and Asia will no doubt, in due course, be interested in participating in space programmes, and why should not Europe try to establish interest in these continents as soon as possible for the use of European launchers, as well as European-built satellites. A first start could be made by offering scholarships and grants to engineers from these continents to participate in the work of ELDO, ESRO and CETS. The industrial organisation Eurospace could also play a very valuable role in this respect.

4. Relations between the Assembly of the Council of Europe, ELDO and ESRO'9 These relations have been regulated by Article 10 of ELDO Convention, by subsequent decisions of the Council of ELDO and exchange of letters between the two Organisations. Through these agreements and the practice which has evolved satisfactory relations have come about between the two organisations. Between the Committees of the Assembly responsible for examining the ELDO Report and the Secretariat General of ELDO excellent and fruitful relations of trust, confidence and good will have been created. Relations between the Council of Europe and ESRO are less formal than with ELDO. It is regulated by Resolution X of the Paris Conference of 1962, and by subsequent exchange of letters. These relations are also developing satisfactorily. But further improvements can always be made in relations with both organisations. It is because relations have always been characterised by confidence and frankness that your Rapporteur takes the liberty to suggest that with respect to the contents of the Reports improvements could be made in order to render our dialogue more fruitful and constructive.

5. Action of the Consultative Assembly On 25 January 1967, the Consultative Assembly adopted unanimously the following resolution and recommendation proposed by the Cultural and Scientific Committee after consultation with the Economic Committee. 19. Extract from the Council of Europe (Consultative Assembly) Doc. 2243 entitled "Report on European Space Policy" [ed].

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COUNCIL OF EUROPE RESOLUTION 335 (1967)1 on the future of the European Space Research Organisation (ESRO) The Assembly, 1. Noting the 1st General Report 1964-65 of the European Space Research Organisation (ESRO), Doc. 2091; 2. Recalling that the Council of Europe's relationship with ESRO is less formal than that with the European Space Vehicle Launcher Development Organisation (ELDO), and regretting that its basis (Resolution X of the Paris Conference of 1962) is not mentioned in Doc. 2091; 3. Noting that, despite the problems usually encountered by newly-created international organisations (to which have been added several unexpected setbacks), ESRO has made progress within its terms of reference; 4. Recalling however the recent ELDO crisis due to cost escalation, and observing that ESRO also is encountering difficulties arising from the fact that both costs, and time-schedules—particularly as regards the Large Astronomical Satellite Project (LAS)—have been considerably underestimated; 5. Referring to Recommendation 477 (1967), setting out principles which member Governments ought to take into account in the elaboration of a general European Space Policy; 6. Convinced that greater dynamism and effectiveness could be infused into ESRO's activities by integrating them into a single European Space Authority corresponding, at the European level, to the United States' National Aeronautics and Space Administration (NASA), 7. Resolves, with this policy-aim in view, to invite: A. the ESRO authorities henceforth to: (i) publish their annual reports simultaneously with those of ELDO (and if possible of the European Conference on Satellite Communications, CETS) and in any case not later than three months after the end of the period covered by each such report; (ii) detail annually in such reports the progress being made towards strengthening collaboration with the aims and work programmes of ELDO and CETS; (iii) take measures to strengthen and develop techniques for making accurate project-cost estimates and for preventing the uncontrolled escalation of such costs;

B. the Governments of the member States of ESRO to: (i) take the necessary steps to ensure an efficient space science programme of ESRO; (ii) put substantial emphasis on applied space research and technology for practical non-military purposes when considering the future programme of ESRO; (iii) facilitate co-operation between ESRO and other European space organisations (both governmental and non-governmental), taking into account paragraph 10 of Recommendation 477 (1967) on European Space Policy. 1. Assembly Debate on 25th January 1967 (21st Sitting) (see Doc. 2164, report of the Cultural and Scientific Committee, and Doc. 2165, Opinion of the Economic Committee). Text adopted by the Assembly on 25th January 1967 (21st Sitting).

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Section IV—Inter-governmental Organizations—Regional RECOMMENDATION

477 (1967 )1

on European Space Policy The Assembly, 1. Recalling Recommendation 251 (1960) on European co-operation in space research and space technology and Recommendation 461 (1966) on European co-operation in the field of space; 2. Noting the reply of the Committee of Ministers to Recommendation 461 (1966) stating in particular that: "The Committee of Ministers are glad to find that, in general, the views of the Assembly are closely in line with the broad policy pursued by the Governments in the field of space" ; ESRO 3. Having at a second debate on space policy matters examined the 1st General Report of the European Space Research Organisation (ESRO), which that Organisation has addressed to the Council of Europe in accordance with Resolution No. X of the Conference of Plenipotentiaries of 1962 instituting ESRO and in accordance with a pursuant decision of the ESRO Council; 4. Noting the set-back for the European space effort in general as a consequence of ESRO's difficulties in implementing its programme; 5. Welcoming the proposal of the ESRO Council to hold a Ministerial Conference in the summer of 1967 to discuss the future of ESRO after the first eightyear period as well as the present difficulties in the operational programme; 6. Adopting Resolution 335 (1967) which is intended to lay before the Council and member Governments of ESRO certain specific proposals; General Space Policy Statement 7. Reiterating: (a) its awareness of the fact that the gap between the space capacity of the USA and the USSR on the one hand, and that of Europe on the other hand, is wide and indeed widening; (b) its consciousness of the danger that the competitive power of the European economy and industry in world markets would decline, if Europe did not take a well-balanced, active and constructive part in space research and technology, in particular in the field of satellite telecommunications, navigational and meteorological satellites and television transmission, distribution and broadcast by satellites; (c) its belief that international co-operation on the widest possible scale is called for, but that nevertheless it is essential that Europe should play a significant part in its own right in the exploration of space for scientific purposes and in the exploitation of space technology for practical nonmilitary purposes; Recent Developments 8. Noting with satisfaction the determination of interested Governments to examine, on the initiative of certain countries and in line with Recommendation 1. Assembly Debate on 25th January 1967 (21st Sitting) (see Doc. 2164, report of the Cultural and Scientific Committee, and Doc. 2165, Opinion of the Economic Committee). Text adopted by the Assembly on 25th January 1967 (21st Sitting).

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of the Assembly, the possibilities of creating the necessary institutional machinery for a European Space Policy;

461

Space Policy as an integral part of a European Science Policy 9. Convinced that a European Space Policy ought to form an integral part of a European science policy designed to close the scientific and technological gap between Europe on the one side and the USA and the USSR on the other, and that this can only be realised on the basis of close co-operation between the member countries of the Council of Europe, 10. Recommends the Committee of Ministers to invite the member Governments: (i) to give urgent consideration to the over-all situation concerning peaceful space activities in Europe in view of its great importance and present difficulties; (ii) to further the present development towards a fuller co-operation between the existing space organisations (mainly ESRO, ELDO and CETS) with the aim of establishing as soon as possible, in accordance with Recommendation 461 (1966), a strong European organisation which would have, subject to Ministerial and parliamentary control, the authority to co-ordinate the non-military space efforts of Europe.

III. EUROPEAN SPACE CONFERENCE* INTRODUCTION

It was upon the initiative of the Italian Government that the agenda of the Conference of the Ministers of the European Space Vehicle Launcher Development Organisation (ELDO) held in Paris in April I966 contained an item entitled "Coordination of European Space Policy." The ELDO Ministerial Conference which was to hold three sessions that summer not only considered ELDO matters but also turned its attention towards the wider aspect of space policy in Europe. At the end of the July session, in addition to a resolution which put ELDO back on an even keel, the Ministers resolved to set in motion a train of action aimed at achieving a successful coordination of space policy in Europe. It was first of all decided that the Ministerial Conference should become a standing body, meeting not less that once a year. It was of course felt that the Conference should be enlarged to take in other European states interested in participating in a coordinated space effort and in particular the Member States of the European Space Research Organisation (ESRO) and the European Conference on Telecommunications Satellites (CETS). A Committee of Alternates was established whose main task, in addition to the preparation of the Ministerial Conferences, was to present recommendations for a coordinated European space programme. On the organisations side a Study Committee was set up to look into the problem of a possible amalgamation of the three existing European space organisations, ELDO, ESRO, and CETS. In order that in the meantime the functioning of these three organisations might be coordinated, it was proposed that a Coordinating Committee comprising re'This is Appendix I of the Report of the Economic Commission of the Council of Europe— see Subsection II of this Chapter.

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Section IV—Inter-governmental Organizations—Regional presentatives of their secretariats should be created. This was soon agreed to by the three space organisations. The Conference agreed to meet again in December 1966 to review progress. CREATION OF THE EUROPEAN SPACE CONFERENCE

The Committees which had been created by the ELDO July Ministerial Conference soon set about their work, but were handicapped to a certain extent by their ignorance as to whether other European countries would eventually join the Conference. The interest manifested by other countries was subsequently shown to be sufficient to warrant the Committee of Alternates recommending that two separate ministerial conferences be held in December: one to review ELDO matters, and an enlarged Conference to consider European space policy. Thus, the first European Space Conference was held in Paris on 13th December 1966. This comprised representatives of the governments of the seven member states of ELDO (Australia 20 Belgium, France, Germany, Italy, Netherlands, and the United Kingdom) who were joined by representatives of Denmark and Spain and observers from Austria, Greece, Ireland, Sweden, and Switzerland. The Conference noted the work of the committees which had been set up by the ELDO Ministerial Conference in July relating to the coordination of European space policy and decided that the Committee of Alternates and Study Committee should thenceforward be under its own aegis. The Alternates were instructed to set up an ad hoc Working Group to carry out a stocktaking of the programmes under way or envisaged in Europe both on the national and international level and of Europe's resources and requirements in the space field. Such a step was considered necessary before the Committee could carry out its original terms of reference of framing recommendations for a coordinated European space programme. The Study Committee was given the additional job of examining the possibility of giving the Ministerial Conference a formal status. Thus the ELDO Ministerial Conference which met on the following day was able to note with satisfaction the decisions taken by the European Space Conference, and recognized that these would enable ELDO to examine in a clearer light the priorities to be given to its programmes. THE SECOND SESSION OF THE EUROPEAN SPACE CONFERENCE, ROME, JULY 1967 By the time the second meeting of the European Space Conference took place in Rome in the summer of 1967, the Governments of Norway, Sweden, Switzerland, and the Vatican had become full members of the Conference, and Monaco and Portugal had also become observers. The decisions of the Conference centred on the following main items: Formal status of the Conference The Study Committee, having reached the conclusion that the amalgamation of the three existing space organisations was not at the moment feasible, the Conference decided to confer formal status on itself by adopting a resolution which declared that it was to become a permanent body meeting at ministerial Ievel at least once a year. 20. Although not a European country, Australia has taken a full and active part in the work of the European Space Conference.

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All the Governments which are or become members of ELDO, ESRO, or CETS were invited to join the Conference2' whose terms of reference would be "to elaborate a coordinated European space policy and supervise its execution." It was decided that Conference decisions should be taken unanimously and be binding upon the participating governments; the latter would undertake to give their representatives in the organisations dealing with space matters the necessary instructions for implementing such decisions. In the event of one or more governments abstaining, the decision taken by the other governments will nonetheless constitute a unanimous and binding decision so far as the governments that take it are concerned. Co-ordination of a European space policy The Conference noted with satisfaction the stocktaking work concerning Europe's resources accomplished by the Committee of Alternates and the Working Group which it had set up further to the first Conference in December 1966. The Ministers decided that an Advisory Committee on Programmes should be set up, which on the basis of the above stocktaking would report to the Committee of Alternates with proposals for the establishment of a coordinated European space policy. This Advisory Committee comprises, in addition to a technical sub-committee, an economic sub-committee which will look at the financial and economic aspects of the various proposals much more closely than has hitherto been the case. In order to assist the Advisory Committee in its task, the ministers laid down precise guide lines which it is hoped will enable as complete a report as possible to be presented to the Committee of Alternates before the end of the year. It was felt that first of all, certain priority measures were required. Such measures would mean minor adjustments being made to the international programmes at present being undertaken in Europe. In this connection the ministers drew the attention of the Advisory Committee to the proposals made by the Committee of Alternates to the Rome Conference and which related to four specific fields: (i) Studies to improve present launchers in Europe; (ii) Coordination of the European communication satellite programmes; (iii) The making available of ground equipment for common projects by all governments participating in the Conference; (iv) The undertaking of a significant applied research programme in Europe. Looking more to the future, the Advisory Committee was asked to frame proposals for projects that would cover several years and be harmoniously divided between scientific and technical research activities on the one hand and practical applications on the other, together with the construction of the launchers required for such projects. Within these general guide lines, the Ministers felt that the projects should focus in two main directions; the building of improved communications satellites and the elaboration of a meaningful scientific programme concentrated on few activities, but activities opening up new prospects in the research area. On this first point and with an eye on the renegotiations in 1969 of the INTELSAT agreements, the Ministerial discussions in Rome showed that Euro21. By August 1967 all Member States of ELDO and ESRO bad joined, together with Norway and the Vatican [ed.].

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Section 1V—Inter-governmental Organizations Regional pean Governments are now more than ever preoccupied with the development of a European potential in communications satellites. The Conference drew the attention of Governments participating in CETS to the necessity and urgency of determining a common attitude in this field. Further to this, the CETS conference held on the following day22 decided to prepare an experimental communications satellite programme on the basis of a study made by ESRO; the necessary funds for planning such a programme were approved. However, as was recognized by the CETS Conference, a final decision on this proposed programme must await the outcome of the report to be made to the European Space Conference by the Advisory Committee on Programmes. Concerning the scientific programme, the ministers discussed the future activities of ESRO and in particular the desirability of completing the Large Astronomical Satellite (LAS) project. Whilst agreeing that this Organization's present programmes should go ahead, it was felt that any decision on LAS must likewise await the report of the Advisory Committee on Programmes. Thus, the 1967 Rome European Space Conference leaves the hope that early in 1968 the Governments will be in possession of all the necessary information to enable positive decisions on a coordinated European space policy being taken and implemented.

APPENDIX I REPORT ON THE CONFERENCE OF 13TH DECEMBER 196623 The European Space Conference was held for the first time in Paris on December 13th, 1966. In addition to the ELDO member states, both Denmark and Spain sent delegates and Greece, Ireland, Sweden, Switzerland and Austria sent observers. The main purpose of the Conference, which to the credit of the French Government was called on its initiative, was to try to agree on a better co-ordination of the present European space projects. It has been reported that the Conference was a part-success but that its full success depends on the outcome of a second conference scheduled to be held in the summer of 1967.24 It is only then that the Plenary Conference will take a decision of principle on whether co-ordination is desirable and necessary. It should be noted that the decisions on co-ordination will only apply to the long-term space programme since the co-operation on the short-term programme, such as telecommunication satellites, have already been entered upon on the basis of agreements between the three existing organisations. The following Resolution was adopted by the Conference. THE CONFERENCE:

—Convinced of the importance to be attached to space research and the use of space for progress in the scientific and technological fields, —Animated by the desire to promote, in the mutual interests of the participating countries, their space activities, —Considering the need to co-ordinate efficiently the use of the resources at the disposal of the European States for scientific and technological research in the space area, which is absorbing a substantial proportion of their scientific potential, 22. For a report on this Conference, see Subsection I above. 23. This text is a reproduction of Appendix I of Doc 2165 of the Consultative Assembly of the Council of Europe. 24. The results of that Conference are analyzed in the note above [ed.].

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EUROPEAN SPACE CONFERENCE

to proceed to: (i) a stocktaking of: (a) the programmes under way in or envisaged by each of the existing European space bodies, including their technical and financial implications, together with an economic evaluation of the profits likely to accrue therefrom; (b) the national programmes currently envisaged; (c) Europe's resources and requirements in the space area in respect of both the national programmes and those for international cooperation, (ii) a study of the minor adjustments that might be made to the approved programmes of international co-operation, 2—CONFIRMS the creation of the Committee of Alternates. This Committee is charged with accomplishing the tasks defined in the foregoing paragraphs by setting up an ad hoc working group. The Secretariats of the three space bodies and the member States shall supply the necessary information for conducting the survey and lend, within the limits of their possibilities, the widest possible assistance to the Committee of Alternates. The Report by the Committee of Alternates shall be available by 31st May 1967. 3—coNFIRMs the creation of the Study Committee. This Committee is further invited to examine the possibility of giving the Ministerial Conference a formal status, and to report to it on the subject before its next meeting. 4—On the basis of the work thus done, the Conference DECIDES to meet in principle in July 1967 in order to reach concrete decisions. 5—The Conference EXPRESSES the hope that all the member countries of one or the other of the European space bodies will designate observers to the Committee of Alternates and join this Resolution in time to be associated in the next conference. I—DECIDES

APPENDIX II 1. Geographical distribution of ESRO contracts25 Ratio of contract percentage to contribution percentage Contracts End of 1965 France Switzerland Belgium Netherlands Italy Sweden United Kingdom Fed. Republic of Germany Spain Denmark

1.677 1.807 2.174 2.764 0.452 0.487 0.614 0.784 0.025 0.420

End of Oct. 1966 End of Mar. 1967 2.030 1.898 1.581 1.509 0.759 0.636 0.604 0.544 0.376 0.301

2.063 1.329 1.131 1.124 0.530 1.542 0.702 0.612 0.249 0.266

25. Extract: from Council of Europe (Consultative Assembly) Doc. 2243 entitled "Report on European Space Policy" [ed.].

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Section IV-Inter-governmental Organizations-Regional 2. Comparative national and international programmes a)

EXPENDITURE ON SPACE ACTIVITIES BY SOME EUROPEAN COUNTRIES

(1967

ESTIMATES IN MILLIONS OF MU)

Contributions Country

Nat ional

ESRO Members: Denmark Spain Sweden Switzerland

Ratios

ESRO -h ELDO

B1

B2

B3

A/B,

A/B2

A/B3

0.97 78.0 41.0 3.0 1.2 24.6

1.8 9.6 11.6 5.6 2 11

3.3 21.2 23 10.1 3.3 23

5.1 30.8 34.6 15.7 5.3 34

0.54 8.1 3.54 0.54 0.6 2.24

0.29 3.68 1.78 0.30 0.36 1.08

0.19 2.54 1.18 0.19 0.23 0.72

0.52 * *

1.0 2.1 2.2

0.52

0.6

1.5

0.4

A ESRO/ELDO Members: Belgium France Germany Italy Netherlands United Kingdom

ESRO ELDO

*Figures at present not available.

b) RATIO OF EXPENDITURES ON NATIONAL PROGRAMMES AND CONTRIBUTIONS TO ESRO/ELDO FOR SOME EUROPEAN COUNTRIES28

Ratio Country France Germany United Kingdom Denmark Sweden

1962

1963

1964

1965

1966

1.12 0.40 0.40

1.70 0.96 0.25

2.50 0.60 0.17 1.62 1.70

2.47 0.91 0.22 0.50 0.50

1.54 0.90 0.48 0.38 0.30

C) EXPENDITURE ON NATIONAL SPACE PROGRAMMES26

National programme (millions of MU) Country France Germany United Kingdom Denmark Sweden

1962

1963

1964

1965

1966

9.4 2.5 3 0.06 0.15

21.9 10.5 4.5 0.13 0.29

35.3 13.7 4.5 0.17 0.37

40.1 17.5 6.0 0.19 0.48

44.0 20.4 0.43 0.60

26. See Doc 2165, Opinion on the First General Report of ESRO, presented by the Economic Committee (Rapporteur: Mr. Gustafson), pp. 14-15, from which these tables have been reproduced.

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ELDO

IV. EUROPEAN SPACE VEHICLE LAUNCHER DEVELOPMENT ORGANIZATION (ELDO) A. THE 1966 MINISTERIAL CONFERENCES AND THE NEW ORIENTATIONS OF THE ORGANIZATION'S ACTIVITIES* I. THE PROBLEMS OF EARLY

1966 AND THE APRIL MINISTERIAL CONFERENCE

At the intergovernmental consultations held at "plenipotentiary" level in Paris in January and April 1965 the ELDO Member States unanimously agreed that the Initial Programme for developing the EUROPA I launcher should go forward as efficiently, rapidly and economically as possible. At the same time it was agreed to examine at a later session the decisions to be taken on possible future programmes for more powerful space vehicle launchers .. . When the Council in December 1965 approved the budget for 1966 which made funds available for the continuation of the Initial Programme and the studies of future programmes, the United Kingdom Delegation gave its approval on the understanding that the programme and policy of the Organisation would be reviewed at the intergovernmental consultations to be held in the Spring of 1966. In February 1966 in anticipation of the Conference, the United Kingdom Government sent the other ELDO Member States through diplomatic channels, a memorandum expressing its misgivings as to whether the use of the very large resources involved in the Organisation's programmes would be justified by the results obtained. The memorandum referred to the growing cost of the Initial Programme, slippages in timescale and the reductions in payload since the project was originally conceived. It questioned whether ELDO could develop launcher prototypes that would not be obsolete compared with American launchers and that could be manufactured on competitive terms. The comments on this memorandum established that the United Kingdom concern about rising costs and slippages in the programme was shared by other Member States. These comments and those of the Secretariat stressed, however, that those difficulties were the consequence of the conditions in which the programme had been initiated .. . Since the technology involved in the ELDO launcher did not substantially differ from that used in American launchers which would be in service for many years to come, it was by no means certain that the Organisation's launchers would be obsolete or uncompetitive when they came to be used. Although economic benefits had not been the main justification for the programme in 1961 some pratical applications for the launcher could now be foreseen. A Ministerial Conference was held in Paris on 26-28 April 1966 presided over by Mr. Alain Peyrefitte, French Minister for scientific research and atomic and space matters. In view of the differences of opinion expressed prior to the Conference, the meeting was devoted to a preliminary exchange of views on: —questions raised in the United Kingdom memorandum of February 1966; —possible future programmes for the Organisation having regard to new technical proposals framed by the Secretariat; —the steps to be envisaged in the context of the coordination of space policy in Europe. •Extract from the ELDO report to the Council of Europe for 1966.

423

Section IV—Inter-governmental Organizations—Regional On the first point, it was apparent that the United Kingdom partners in ELDO generally shared its alarm at the escalating costs of the Initial Programme. They were, nevertheless, all convinced that the programme should be completed but a number of provisions for improving management and control procedures were suggested ... On the second point, the Ministers had been informed of new proposals by the Secretariat for a project to supplement the performance of the Initial Programme launcher by what is was decided to call the PAS System (perigee-apogee system). Such a launcher would be capable of placing satellites into a geostationary orbit. The satellite would be of sufficient weight to meet the requirements of a whole series of practical applications, particularly in respect of communications. It was considered that this programme could be completed in the not too distant future and at reasonable cost. The importance of the new proposals was that for communications systems geostationary orbits were generally to be preferred and that the ELDO/PAS vehicle would be capable of launching a satellite weighing four of five times as much as the American satellite Early Bird, itself already capable of practical applications of undeniable value. The third point, namely the steps to be evisaged for coordination of space activities in Europe, was a question that had already been repeatedly raised not only within ELDO but in other forums. Indeed the existence of separate bodies (ESRO, ELDO and CETS) set up at different times for different purposes resulted in a certain dispersal of effort and lack of coordination of aims. The Conference was therefore called upon to examine the advisability of progressive action towards adequate coordination of the Member countries' space activities in Europe. All in all, the first Conference gave the Ministers an opportunity of examining the Organisation's activities in principle and in detail and of conducting, for the first time since the inception of the Organisation, a thorough exchange of views in the light of the concern expressed by the United Kingdom as to the role that Europe could be called upon to play in the space area compared with the two major powers. While agreeing that the Organisation should for the time being continue its activities and pursue the Initial Programme, the Conference decided to reconvene in Paris for a further session on 9th June 1966 with the purpose of considering inter alia: —the conditions under which this programme could be completed; —the possible adoption of a Supplementary Programme based on the PAS system; —the choice of an equatorial site suitable for the injection into orbit of geostationary communications satellites; —the question of the financial and industrial participation of the Member States. It was also decided that studies would be undertaken on the improvements to be envisaged in the management and control area and in particular on the reinforcement of the Secretariat's powers .. . 2.

THE JUNE AND JULY SESSIONS OF THE MINISTERIAL CONFERENCE AND THE DECISIONS REACHED

The 2nd session of Ministerial Conference was held in Paris on 9th and 10th June 1966 under the Chairmanship of Mr. Peyrefitte. The Ministers then examined proposals for reassessing the Member States' financial contributions to the ELDO budget.

424

ELDO

The Ministers decided at this session to propose to their Governments the adoption of the following new scale mainly based on ratios derived from a comparison of average national incomes of Member States: Federal Republic of Germany France Italy United Kingdom Belgium and Netherlands

New Scale (%) 27 25 12 27

Old Scale (%) 22.01 23.93 9.78 38.79 2.85

9* 2.64

Australia-' It was also decided to propose that the financial commitments of Member States should be limited to agreed financial ceilings and to introduce a review procedure based upon periodic meetings of Ministers of Member States. Lastly, it was decided that in each participating state work would be alloted representing a given percentage of its total financial contribution to the Initial and Supplementary Programmes .. . The 3rd session of the conference was held in Paris on 7th and 8th July 1966 under the Chairmanship of Mr. Peyrefitte. It took the following decisions. a) ELDO programmes and activities The Conference agreed that the Organisation would undertake from 1st January 1967 a programme in which all the Member States would take part. It was to comprise on the one hand a re-orientation of the Initial Programme including necessary improvements and on the other a Supplementary Programme consisting of the design and construction of fourth and fifth stages, the development of an inertial guidance system and the construction of a near-equatorial operational launch base. It was agreed that to implement this programme and cover the administrative overheads and research and development costs, contributions would be assessed on the scale recommended at the June session. Furthermore, the ceiling of commitments from 1st January 1967 was set at 331 MMU which together with estimated expenditure to the end of 1966 of 295 MMU entailed a maximum outlay of 626 MMU for the whole of the Organisation's activities from its inception to the end of its current programmes. Annual financial ceilings were also set to enable Member States to determine the limit of their commitments and to guarantee to the Organisation the necessary funds for the execution of the programmes. In the management and control area, it was agreed that the Secretariat would, by arrangement with the Member States, be entitled to place new contracts directly with industrial firms and establishments. The Conference also invited the Council to delegate to the Secretary General, under one of the provisions of the Convention, powers to implement proposals for reorganising the Secretariat's structure with a view to its having greater authority and efficiency, notably by the creation of two Management Directorates having full responsibility for the Initial and Supplementary Programmes respectively. ',To be shared between the two countries by mutual agreement. • *As in the Initial Programme, the Australian contribution is the making available of appropriate range and supporting facilities and technical co-operation based on scientific experience in conducting trials and assessments, all of which is made possible by the development of the entire facility and Australia's substantial expenditure thereon.

425

Section IV—Inter-governmental Organizations—Regional Other provisions would enable the authorities of the Member States to exercise greater surveillance than in the past over the progress of the Organisation's work. The Council had already adopted the principle of the creation of a Corps of Inspectors whose role would be to conduct investigations in the Member States or at the Secretariat. Its members were to be nominated by the Member States on the basis of their experience in the management of extensive industrial projects. The Conference decided that the Corps of Inspectors would be set up immediately and hold itself permanently at the Council's disposal. The Conference approved the broad lines of the work distribution for the Supplementary Programme, while agreeing that tendering and contracting should be so far as possible competitive. It also approved a procedure for guaranteeing delivery of each launcher component by the Member States concerned for the programme envisaged and for future customers. The Conference was also required to decide upon the choice of an ELDO operational equatorial base. After considering submissions by Australia (Darwin), Italy (San Marco sea-borne platform) and France (French Guyana), it decided that the base should be situated at Kourou in French Guyana and would be built on a fixed price basis on behalf of and at the expense of ELDO under France's prime responsibility. It was also agreed that research and development firings would continue to be conducted from Woomera. It was agreed at the same time that the Conference should meet again in Paris in December 1966 to review the progress made in the implementation of the decisions of specific concern to the launcher programmes. b) Coordination of European Space Policy The Ministers of ELDO Member States recognised that the Conference should be enlarged by common agreement to take in other European states, in particular, the Member States of ESRO and CETS with a view to obtaining, as recommended by the Consultative Assembly of the Council of Europe, the widest possible co-ordination of European space activities. It was decided that a Committee of Alternates would be immediately set up with instructions to submit to the Conference recommendations on a coordinated European space policy. It should also study the question of the commercial exploitation of the jointly developed European space techniques. It was decided that a Committee of Alternates would be immediately set up the interested European states and charged with examining the problem of the possible amalgamation of the existing space bodies. Finally, by way of action to ensure closer liaison between ESRO, CETS and ELDO in the immediate future, the creation of a Coordinating Committee of senior officials from the Secretariats of all three bodies was proposed and after the approval of these bodies was quickly set up. Thus at this its third session, the ELDO Ministerial Conference had not only confirmed the continuance of the Organisation's Initial Programme and decided upon the implementation of the Supplementary Programme based on the PAS system, but had also adopted practical arrangements for a first step towards improved coordination of the activities of the European space bodies. 3. MEETING OF THE COUNCIL, SEPTEMBER 1966: IMPLEMENTATION OF THE MEASURES DECIDED UPON BY THE MINISTERS IN JULY 1966 The Conference of Ministers had requested the Council to take a series of measures to be applied before the end of the year. With a view to implementing the decisions of the Ministers, the Council at a meeting held in September 1966

426

ELDO approved resolutions concerning the programmes. It also approved the amendment of the Financial Protocol to take account of the change in the rates of contributions, a change in the voting procedure in respect of the annual budget and the creation of the financial ceilings by the Conference. It is to be noted in this context that the new rules for approval of the annual budget will give the Organisation far more flexibility in this respect than hitherto. Whereas previously Council decisions in the matter were by a special majority of two-thirds of the votes of all Member States, including the concurring votes of States whose contributions amounted to 85% of total contributions, as from 1967 the annual budget will be approved by a similar two-thirds majority of the votes of the Member States concerned but including only the concurring votes of Member States whose contributions amount to 66.66% of total contributions. The formula will in practice prevent any one of the Member States from vetoing approval of the budget. The Council also took various measures in the management and control areas. In particular it delegated powers to the Secretary General for one year to carry through the reorganisation of the Secretariat. It approved the principle of creating an Industrial Integrating Group to provide the Secretariat with the necessary technical support and in particular to ensure adequate coordination of work under the Supplementary Programme. The Group is to be international in structure, it is to be given terms of reference in no way limiting the authority of the Secretariat, and its independence of particular industrial or national interests must be fully safeguarded .. . 4. FOURTH SESSION OF THE MINISTERIAL CONFERENCE (DECEMBER 1966) When the ELDO Conference of Ministers held its fourth session on the 14th December 1966 under the chairmanship of Mr. F. Mulley, British Minister of Aviation, it was able to note that the decisions taken in July were well on their way to being implemented. A Budget for 1967 had been prepared covering expenditure within the financial ceiling set in July, and the estimated total cost of the programmes was also within the total ceiling. The second firing (F5) of the ELDO-A vehicle in its complete configuration, which took place from Woomera on the 15th November 1966, had been a most successful technical feat. However, the Conference was informed that although within the approved financial ceiling, the Budget for 1967 as prepared could not be regarded as adequate to finance the successful completion of the activities included in the year's programmes; to ensure the availability of adequate reserve funds, and to meet other commitments, additional funds would be required. The Conference decided that, in order to provide additional funding the Governments of the Member States should be invited to take steps for the reimbursement to be made of taxes and duties from which the Organisation should normally have been exempted but which had been paid owing to the delays in ratifying the Protocol on Privileges and Immunities .. . B. ELDO ACTIVITIES---1967'

The activities of the European Space Vehicle Launcher Development Organization in 1967 were concentrated on the implementation of the decisions reached by the Conference of Ministers in July 1966. The two outstanding decisions had been to undertake a new programme as 'This note was kindly contributed by Mr. M. BourEly, Legal Adviser of ELDO.

427

Section IV—Inter-governmental Organizations—Regional from 1 January 1967, and to call for an improvement in the management methods of the Organization. The aim of the new programme was to improve the performance of the EUROPA I launcher at present under development, in order to make it capable of launching telecommunications payloads into synchronous orbit. This was to be done by developing and adding perigee and apogee stages to the launcher, which would then be known as EUROPA II. The necessary studies for this work were completed, and the distribution of work amongst the Member States has been practically settled. This was a difficult task, bearing in mind that the Ministers had laid down that each Member State was to receive in contracts a percentage not less than eighty per cent of its financial contribution to the Organization. At the same time as this new work, the development and testing of EUROPA I has continued. Two launchings of the vehicle were made in 1967 from the range in Australia. These were not entirely successful, for on each occasion a malfunction in the second stage prevented all the objectives of the flights from being obtained. However, the purpose of these flights is to test the different parts of the vehicle at an early stage in the development, and it is not anticipated that these reversals will unduly delay the next launching, due in the summer of 1968. This latter firing will be the first in which an attempt will be made to place a payload in orbit. Turning to the other main decision of the Ministers, concerning the management methods of the Organization, these have now been overhauled. Experience has shown that a more centralized management was needed in order to keep an effective technical and financial control over the programme. Thus not only has the Secretariat been strengthened, but also reorganized to include project management techniques and it now has the power to place contracts directly with industry without relying on the governments of the Member States. To help the Secretariat, an Industrial Integration Group has been set up. This Group is in the form of an ordinary company and will provide the services of engineers seconded from firms working on the ELDO programme. The activities of the Group will not only provide technical support to the Secretariat but will also result in increased co-ordination with industry. Now that the Organization is approaching the end of its present development programme (the development of the EUROPA II launcher is due in 1970-71), the problems concerned with the sale of launchers have been receiving greater attention. This was another matter which the 1966 Ministerial Conference recognized as being of paramount importance, and throughout the year studies have been conducted with a view to determining the way in which a production programme, as opposed to the development phase, might be carried out by the Organization. An option on two launchers has already been taken by France for the launching of the Franco-German "Symphonie" telecommunications satellite and other possible users such as CETS (European Con428

ELDO

ference on Telecommunications Satellites), ESRO (European Space Research Organisation) and EBU (European Broadcasting Union) have expressed their interest in the EUROPA II vehicle. No definite decision has yet been made concerning the institutional arrangements for the manufacture and marketing of the launchers developed by the Organization. The suitability, or otherwise, of the Organization's taking responsibility for manufacturing vehicles for customers will be greatly affected by its concurrent research and development activities. In the event of important R and D work being undertaken by the Organization, it is possible that the manufacturing processes should be confided to industry with little supervision by ELDO or the governments of its constituent states. A decision on the future development programme will be taken by the Conference of Ministers meeting this year in the European Space Conference. It is in the light of this Conference that ELDO will thus be able to plan its future role in the European space programme.

C. SHORT AND LONG TERM ORIENTATION OF ELDO REPORT BY THE SECRETARY GENERAL TO THE EUROPEAN SPACE CONFERENCE, JULY 1967 (EXTRACTS) GENERAL ACTIVITIES

At the ELDO Ministerial Conference of 14th December 1966, I presented a report (ELDO/CM(Dec. 66)4) on the introduction of measures for improving the Organisation's management, in the meaning of paragraph 3 of Resolution No. 1 of July 1966, and on the status of the programme. On the first of these points, one particular aim involved measures for the reorganization of the Secretariat, in respect of which the Council in September 1966 delegated powers to me for one year, authorising the creation of new posts and the appointment or recruitment of staff for filling them. Since the last session of the Ministerial Conference, the reorganization has proceeded with the twofold aim of installing the officials concerned and instituting efficient internal rules of procedure. As regards structure of the secretariat, substantial progress has been made since July 1966 and the reorganization of our services has already been largely achieved on the basis of the principles approved by Ministers, namely, a strengthening of the Secretariat's powers, notably through the creation of two management directorates each responsible for one of the development programmes. In the recruiting area, we have been able to increase the staffing strength of the Secretariat from around 200 in June 1966 to 275 in May 1967. This figure is to be set against the target of 310 for 1967 which we hope to reach soon, provided always we do not continue to run into the very real difficulties we have met hitherto in finding suitably qualified candidates. In doing so, we endeavour of course to have regard to the need for a proper geographical distribution of posts among the Member States' nationals .. . In the internal procedures area, we have introduced inside the Secretariat working methods which should enable us to fulfil our responsibilities with the necessary flexibility and speed. In this respect, various provisions have been

429

Section IV—Inter-governmental Organizations—Regional made concerning the technical and financial management of the programmes and in particular the placing of direct and indirect contracts, their approval by a "Contracts Commission," credit transfers, drawings on the financial reserve included in the Budget, etc. We have further endeavoured to tighten up our over-all technical supervision. In the management area, the work that has been proceeding for several years now in the appropriate ELDO committees has led to a series of Council decisions relating in particular to the principles governing the management of contracts in the member countries and the Secretariat. A set of common conditions, for application to all new contracts placed directly by the Secretariat and to those for the Supplementary Programme, has been approved, together with a number of clauses concerning the charging of insurance premiums, cost control and ELDO third party liability. The various clauses referred to should enable us to ensure some degree of harmonization and better control of programmes and therefore improved management ... . In another area affecting the programme management, the study of the setting up of an Industrial Integrating Group has gone forward and we are now very close to reaching a solution. I would remind you that the purpose of this Integrating Group is to place at the disposal of the Technical Directorate some fifty engineers seconded from their parent firms, whom it would have been impossible in practice to recruit to the permanent Secretariat staff. We have been able to make sure that the Integrating Group would be international in structure, that its independence of particular industrial and national interests would be safeguarded and that its terms of reference would leave the Secretariat's responsibilities and authority unimpaired ... . In accordance with the directives given to it by the Council, the Corps of Inspectors whose constitution was confirmed by the ELDO Ministerial Conference of July 1966 has carried out a series of inspections in most of the member countries and the Secretariat ... . In the co-ordination area, progress has undeniably been made during the last six months, but a great deal remains to be done here too. I would mention for example the matter of satellite control stations: we regard it as essential to arrange that the equipment of the proposed ground stations for the Supplementary Programme be designed to be also usable in connection with the various projects of ESRO, CETS and other users. This cannot be done unless certain technical and financial decisions are quickly taken by these bodies. There is hardly any need to recall in another field that the Supplementary Programme STV is designed to be "representative" of a communication satellite. It will obviously be desirable to see how best this satellite can prepare for later launchings of the Franco-German "Symphonie" satellite and the communication satellites currently under study by ESRO on behalf of CETS. In order to facilitate a solution of these problems, it is in my view necessary that the Ministers examine together now their conception of what Europe's role in space communications should be. The accomplishment of national or bilateral projects offers at the present juncture the advantage of greater simplicity and quicker results. Nevertheless, a proliferation of such projects would be bound to involve the risk of a good deal of duplication besides greatly adding to the difficulty of multilateral initiatives. Hence it is now in my view increasingly imperative to promote multilateral ventures and take immediate steps for the closest co-ordination of all projects. Only in this way will Europe be able to operate, usefully and efficiently, in such a vast and promising field ... .

430

ELDO STATUS OF THE PROGRAMMES

During the period since the last Conference, consideration has been given to the preparation of a programme which combines the Initial Programme and the Supplementary Programme so that a coherent sequence of firings of the launcher can be planned. The objectives are that priority should be given to the successful completion of the PAS programme, while retaining capability for other possible uses, e.g. for the ESRO large astronomical satellite. This Combined Programme contains a firing, F.11, which in effect is a bridge between Initial and Supplementary Programmes' development firings and will be fired from the equatorial base. The programme covers the necessary adaptation and modification of Europa I, the work related to the use of an equatorial base in Guiana and the perigeeapogee system development. It will provide an opportunity for test of the ground stations required by the PAS system. In the course of preparation of the Combined Programme, certain changes, although small, have been found to be necessary in the technical content of earlier firings, and the whole has been presented as a revised target plan, T/7. Studies are continuing on the inclusion of experimental telecommunications equipment in the satellite test vehicle of the F.9 firing, (due in early 1969) on behalf of the interested Member Countries of the CETS, with whom a draft agreement is under discussion. Our planning will also have to cover the firings required by users, namely the two launchings of the Franco-German telecommunications project and the requirements of the CETS which have yet to be formulated. Account has also to be taken of the possible requirement of ESRO for the LAS. Work on the Supplementary Programme has continued on the broad lines which I described in my last report. A proposed distribution of work for a large proportion of the tasks which could not be allocated in July, 1966, has been worked out on the basis of the principles agreed by the ELDO Ministerial Conference. The results have been embodied in a detailed document which shows that the two principles then adopted, referred to briefly as the "50% rule" and the "80% rule," can be satisfied. In the course of the period since the last Conference, agreement has been reached on the definition of the test satellite for the Supplementary Programme on the basis of a specification, prepared after consultation with ESRO and CETS, which provides a simple solution to the test requirements of the launcher, while containing features which will be of value to subsequent satellite developments. The plans for the sub-orbital firings in the supplementary development programme had to be reconsidered when it became clear that the trials originally planned using Cora vehicles with the third stage would not be practicable .. . Since my report in December 1966, the estimated cost to completion for both Programmes has been reviewed and is now as follows: MMU Initial Programme (excluding modifications to Europa I) Supplementary Programme (including modifications to Europa I) Administrative costs Studies and Experimental work Total

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410 129 34 16 589

Section IV—Inter-governmental Organizations—Regional This figure may be compared with the overall ceiling of 626 MMU which was set by the ELDO Ministerial Conference of July, 1966. The available balance for economic and technical contingencies now amounts therefore to 37 MMU. RELATIONS WITH NASA

During the period under review, our good relations with NASA have continued. Discussions have taken place in a number of technical fields, in particular, problems connected with the Supplementary Programme and technical management procedures, and suggestions have been made by NASA of areas in which they might be of assistance. A technical mission recently visited the United States to discuss with NASA experts particular problems concerning the system design concepts for the injection of PAS test payloads into geostationary orbits .. . An aspect of cooperation with NASA is in documentation, where a joint service, in which NASA, ESRO, ELDO and Eurospace participate, has now been in operation for over a year. It provides mechanized search, using computer methods, into the immense mass of indexed documents which now exists in the space field, totalling some 200,000 and increasing at a rate of 5,000 per month. It also provides copies of the documents, both photographically reduced and normal. It is now accepted as an established service, and its success is due to the work of our colleagues in ESRO in managing it and to the essential assistance provided by NASA. In April, a Colloqium was held at Nice, attended by Europeans and Americans, to review experience of the operation of the service and to study problems of organization and methods with which it is faced in the future. Discussion took place on the possible extension of the service to the field of technology utilization which would be analogous to the NASA office for this purpose, certain modifications being necessary in Europe. We regard it as important that these proposals be pursued. FUTURE ACTIVITIES

The ad hoc Working Group on the stocktaking of programmes refers to the level of space activity in Europe. Their report draws attention to the need for a co-ordinated long term European space programme and to the present low level of space activity in Europe in comparison with its own potentialities and with the United States. In particular, indications are given on probable increased requirements for Europe in the future, but it is pointed out that the funds envisaged for the international organizations decrease steadily from 1968 onwards. It is this last aspect upon which I should like to comment, in particular in respect of ELDO. If we examine the over-all load placed on industry by ELDO in the coming years, we observe that this year and next, the effort engaged remains steady but that by 1970, it will have dropped to just over one-third, and in 1971, to less than one-tenth. In this analysis, we have taken into account the load imposed by the manufacture of launchers for users. In 1968, the Supplementary Programme compensates for a drop which would otherwise take place, but afterwards, a precipitous drop does occur. The effect upon the European space industry can be imagined. When we turn to the effort devoted to design and development alone, we are faced with an even more striking situation. This effort will fall to two-thirds next year, to little over one-third in 1969 and to one-tenth in 1970. Again, the consequence to industry can be seen, in the threatened dispersal of the design teams and experience which have been laboriously built up over the years. Quite clearly, if in Europe we intend to undertake continued space activity, and the Conference is already aware of all the reasons for doing so, we require to maintain the technical resources which we have so far gained. It would be unreasonable,

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ELDO as a way of doing this, to waste money keeping teams in being unproductively, with, in any case, the risk of losing them. These arguments strongly reinforce the observations of the Working Group on Programmes. I would draw attention, moreover, to the fact that time is against us ... . D. THE QUESTION OF LIABILITY WITHIN ELDO*

The main aim of the European Launcher Development Organization (ELDO) is the development of heavy space vehicle launchers in Europe, suitable for peaceful practical applications and for supply to eventual users. This implies that its activities will be divided between development and production phases. The first development programme is now approaching its end, and the Organization is turning its attention increasingly to questions of production and the different legal conceptions involved. The conditions for the supply of launchings by an inter-governmental organization to users poses new problems, many of a legal nature, one of which is the liability for damage caused by the launching. It is assumed that the Organization will sell a "launching" rather than a "launcher" to be launched independently by the user. In other words the Organization will undertake to place a satellite in a required orbit for the user. It is on this basis that the negotiations on the contracts for the sale of launchers took place in 1967. The question of liability for damage assumes paramount importance also in the development programme, particularly now that the Organization will soon be placing satellite test vehicles in orbit. Consequently the work of the United Nations Legal Sub-Committee is closely followed by ELDO, ESRO and CETS who participate in a Working Group of the European Space Conference which attempts to co-ordinate the attitude of its Member States in the Outer Space Committee. For although it follows from the Space Treaty that international organizations launching objects into outer space shall be liable for damage, there is still no agreement as to whether the Organization and Member States should jointly be liable or whether the Member States should only be liable in the event of the Organization defaulting. It is in ELDO's interest that this problem, together with that concerning the limit of liability, be resolved in the draft convention on liability at present under discussion by the Legal Sub-Committee. In a certain sense, however, the Organization has circumvented this problem, at least in its development programme. Recently, agreements were concluded with France and Germany by which the Organization agrees to indemnify these Member States for any damage caused by ELDO's activities in the test centres situated on their territories. This indemnity was previously granted to Australia to cover any damage arising out of the development launchings in Australia. Furthermore, *This note was kindly contributed by Mr. J. R. Hewitson, Assistant to the Legal Counsel of ELDO.

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Section 1V—Inter-governmental Organizations—Regional to meet this possible liability towards Australia and also that towards any third parties arising out of these launchings, the Organization has secured insurance coverage at what can only be regarded as reasonable rates. With regard to the launchings of operational launchers for customers from the Organization's new equatorial launching range, at present being constructed in French Guiana, the draft agreement on the use of the range which is now under negotiation foresees the Organization granting an indemnity to France similar to that already accorded to Australia. A launching for a customer, however, introduces another element that was lacking in development launchings, namely the liability under the Space Treaty of States which "procure" the launching of an object into outer space. It seems that here ELDO must at the moment agree on a case-by-case basis with its customers as to how the liability for damage to third parties is to be borne; this in turn will have an influence on the sale price of the launcher. A neat way of avoiding protracted negotiations on this point would be to effect an insurance policy, as is done on the development programme, and either share or charge to the customer the amount of the premium. Public international law is a branch of the law which more than any other has been moulded by custom. The first decade of the space era has already thrown up certain practices, such as the registration of launchings and identification of space objects, which may in time be regarded as being a Iegal obligation. So far as the activities of ELDO are concerned, it is submitted that a practice is evolving with regard to liability which may also in time influence the drafting of space conventions, or even lead to the development of the customary law of outer space which is at present crystallizing. It is to be hoped however that in future more account will be taken of international organizations than was the case in the drafting of the Space Treaty. For their present position under the law of outer space is far from clear. As shown in this article, legal expedients are being found to circumvent this state of affairs, but it would be far better if such action were carried out in conformity with clear and internationally accepted principles of space law. V. ORGANISATION EUROPEENNE DE RECHERCHES SPATIALES (CERS/ESRO) L'Organisation Europeenne de Recherches Spatiales (CERS/ESRO) fut etablie par la Convention de Paris du 14 juin 1962, entree en vigueur le 20 mars 1964.'7 Les pays membres de l'Organisation sont: Belgique, This note was kindly contributed by Mr. H. Kaltencker, General Counsel, and Mr. Arets, Assistant General Counsel, ESRO. 27. For the events leading to the establishment of ESRO, see Yearbook of Air and Space Law, 1965, pp. 611, 616. For the text of the 1962 Convention and the preceding Agreement done at Meyrin (Switzerland) on I December 1960, see Yearbook of Air and Space Law, 1965, pp. 477, 479.

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ESRO

Danemark, Espagne, France, Italie, Pays-Bas, Republique Federale d'Allemagne, Royaume-Uni de Grande-Bretagne et d'Irlande du Nord, Suede, et Suisse. Deux Etats, å savoir 1'Autriche et la Norvege, ont le statut d'observateur. Le but fixe å l'Organisation par la Convention est d'assurer et de developper, a des fins exclusivement pacifiques, la collaboration entre Etats europeens, dans le domaine de la recherche et de la technologie spatiales. La Convention prevoit un Conseil, compose de representants des Etats membres, qui prend ses decisions, soit å l'unanimite, soit å la majorite qualifiee des deux tiers, soit å la majorite simple. Un Comite Administratif et Financier (AFC), un Comite Scientifique (STC), ainsi qu'un Comite ConsuItatif des Programmes de Lancement (LPAC) furent crees par le Conseil pour l'assister dans ses tåches. Le Secretariat assure le fonctionnement de l'Organisation. Il est place sous I'autorite du Directeur General, qui represente l'Organisation dans toos ses actes, et sous l'autorite duquel sont places tons les etablissements crees par l'Organisation afire d'assurer la realisation de ses objectifs. Le plus important de ces etablissements est le Centre Europeen de Technologie et de Recherches Spatiales (ESTEC) siue å Noordwijk (Pays-Bas). Ce Centre a pour missions principales d'etudier et de construire des charges de fusees sondes, de satellites, et de sondes spatiales, et de promouvoir la recherche technique d'avant-garde. En outre, l'Organisation possede å Darmstadt (Republique Federale d'Allemagne) un etablissement pour le traitement des donnees spatiales, et a Kiruna (Suede) des installations permettant le lancement de fusees sondes. Elle gere un reseau de stations de localisation, de telemesure, et de telecommande situees å Redu (Belgique), Fairbanks (Alaska), aux Iles Falkland, et au Spitzberg (Norvege) et relevant du Centre de Contröle å Darmstadt. Depuis 1967 ces etablissements sont places sous l'autorite d'un Directeur des Operations spatiales, qui, avec le Directeur de 1'ESTEC et les Directeurs de l'Administration et des Plans et Programmes (qui se trouvent au Siege de l'Organisation å Paris) et avec le Directeur General, constituent le Directoire de l'Organisation. A la suite de la signature de la Convention, differents Protocoles, relatifs aux aspects financiers et aux privileges et immunites de l'Organisation, ont ete signes.28 Il est interessant de constater que le Protocole relatif au financement de 1'Organisation stipule le montant maximum des depenses de ('Organisation pendant les huit premieres annees de son existence (mars 1964-fevrier 1972). Ce plafond de depenses est de 306 millions d'unites de compte, au niveau des prix pratiques å la date de la signature du Protocole en 1962. 28. Ibid.

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Section IV—Inter-governmental Organizations—Regional Les aspects essentiels du programme de 1'Organisation sont prevus par la Convention elle-meme, qui stipule notamment que l'Organisation procedera au lancement de fusees sondes, de petits satellites en orbite proche de la Terre et de petites sondes spatiales, de gros satellites, et de grosses sondes spatiales. Au cours des premieres annees de son existence, l'Organisation a tout d'abord mis en place l'infra-structure destine å lui permettre de realiser son programme operationnel. Sur le plan juridique cette activite s'est traduite par la conclusion d'Accords de Siege, conclus avec les differents Etats sur lesquels des etablissements de l'Organisation devaient gitre etablis: —Pays-Bas, pour le Centre Europeen de Technologie et de Recherche Spatiale å Noordwijk (ESTEC), —Suede, pour la Base Europeenne de Lancement de Fusees Sondes å Kiruna (ESTANGE), —Allemagne, pour le Centre Europeen d'Operation Spatiales (ESOC) å Darmstadt, qui comprend le Centre Europeen de Donnees Spatiales (ESDAC), —Italie, pour l'Institut Europeen de Recherches Spatiales å Frascati (ESRIN), —Belgique, Etats-Unis, Norvege, et Royaume-Uni, accords concernant les bases du reseau ESTRACK. L'Organisation a procede å de nombreux lancements de fusees sondes depuis la base de Kiruna ainsi que depuis d'autres bases europeennes, qui ont ete mises å sa disposition, en vertu d'accords conclus å cet effet (Italie et Norvege). Les premiers satellites de 1'Organisation sont en cours de construction; trois lancements doivent gitre effectues au cours de l'annee 1968 (satellites ESRO I, ESRO II, HEOS). Ces satellites seront mis sur orbite l'aide de fusees americaines. Les deux premiers seront lances dans le cadre d'un programme de cooperation dans la recherche spatiale, etabli par la NASA et l'Organisation. Le satellite HEOS et, eventuellement, des satellites ulterieurs seront lances par la NASA en vertu d'un "Accord en vue de la fourniture de moyens de lancement de satellites et de services connexes," qui est entre en vigueur le 30 decembre 1966. Depuis que certains etablissements de 1'Organisation sont devenus operationnels, plusieurs Etats membres ont envisage de les utiliser dans le cadre de l'execution de leur programme spatial national. A cette fin, des reglements pour l'utilisation des installations de l'Organisation par des organismes relevant des Etats membres ont ete adoptes. En application de ces reglements le Deutsche Versuchsanstalt fur Luft-Und Raumfahrt, E. V. (DVL) a, au cours de l'annee 1967, effectue deux campagnes de tir å partir de la base de Kiruna. Parmi les activites de 1'Organisation la Convention prevoit aussi la diffusion d'informations å l'intention des Etats membres. Des lors, il 436

ESRO

convenait d'etablir une politique de l'Organisation en matiere de propriete intellectuelle, qui tienne compte å la fois du souci de rendre accessible å tous les resultats des travaux faits par l'Organisation ou avec raide de celle-ci, et de la necessite de respecter les droits acquis sur les inventions faites au cours des travaux effectues dans le cadre du programme de l'Organisation. Aussi bien, en 1967 le Conseil de l'Organisation a-t-il adopte definitivement les regles relatives aux droits de propriete intellectuelle. L'idee qui est å la base de cette reglementation est la suivante: les Etats membres et les entreprises des Etats membres peuvent obtenir, å titre gratuit, des licences pour les activites qui sont dans le domaine de la recherche et de la technologie spatiales. En dehors de ce domaine et en ce qui concerne les Etats non membres ou leurs entreprises, une negotiation devra avoir lieu avec le titulaire du droit (l'Organisation ou un contractant de celle-ci).29 En 1967 la vie du CERS/ESRO a ete dominee par plusieurs problemes. Il est apparu tout d'abord que les sommes qui avaient ete envisagees pour realiser le programme de 8 ans, etabli par l'Organisation, etaient insuffisantes, å la suite de la hausse des cats et du developpement de la technologie. Depuis quelques annees l'attention des Pays europeens a ete de plus en plus attiree sur la possibilite de construire des "satellites d'application" dans les domaines des telecommunications, de la meteorologic, de la navigation aerienne et maritime. D'autre part, å l'occasion des difficultes rencontrees par le CECLES/ELDO en 1966 la Conference des Ministres de cette Organisation avait proclame la necessite de coordonner davantage les activites des differentes organisations spatiales europeennes 80 Toutes ces raisons expliquent qu'au cours de 1967 l'histoire du CERS/ESRO ne peut eire dissociee de celle du CECLES/ELDO et de la Conference Europeenne de Telecommunications par Satellites (CETS) qui groupe les Etats europeens participants å I'INTELSAT. Une Conference Spatiale Europeenne a ete instituee. Elle s'est reunie au niveau ministeriel au mois de decembre 1966 å Paris, et au mois de juillet 1967 å Rome. Elle doit se reunir en 1968 å Bonn pour decider d'une politique spatiale europeenne coordonnee et determiner, dans leurs grandes lignes, les activites des trois organismes spatiaux europeens. Dans cette perspective, on a envisage la possibilite de confier au CERS/ESRO la realisation du programme de satellites d'application qu'etudie actuellement la CETS. En effet, le CERS dispose d'une infrastructure materielle et humaine qui permettrait la realisation de ce programme sans qu'il soit necessaire de treer au prealable une nouvelle organisation europeenne. La realisation de cette suggestion pose cepen29. Pour plus de details, voir Kaltenecker, Practice and policy of the European Space Research Organization (ESRO) concerning intellectual property rights, access to and disclosure and use of information, Lex et Scientia, July-September 1967. 30. See Yearbook of Air and Space Law, 1966, p. 59.

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Section 1V—Inter-governmental Organizations—Regional dant des problemes d'ordre juridique puisque l'Organisation a ete creee principalement dans un but scientifique et non technologique. D'autre part, le fait que les Etats membres de l'ESRO ne sont pas exactement les memes que ceux qui sont interesses par un programme de satellites d'application cree å son tour des difficultes. Le CERS etudie actuellement la question de savoir si l'insertion du programme de satellites d'application de la CETS dans le programme de l'ESRO impliquerait necessairement des amendements å la Convention portant creation de l'Organisation. II faut noter par ailleurs qu'en attendant la definition d'une politique spatiale europeenne, la realisation du programme scientifique de l'ESRO a ete partiellement retardee et que la decision de construire un grand satellite astronomique (LAS), qui devait constituer l'entreprise majeure du premier programme de I'ESRO, a ete confiee aux Ministres interesses qui devront se prononcer sur ce point lors de la Conference de Bonn de 1968 (troisieme Conference Spatiale Europeenne). En conclusion, la Conference Spatiale Europeenne prendra les decisions politiques qui, selon des modalites juridiques parfois subtiles, seront mises en oeuvre au sein des Organisations existantes dont les tåches seront peut-gitre redefines ulterieurement. Cette coordination entre les Organismes existants et egalement avec les programmes nationaux des Etats membres se revele indispensable pour assurer une meilleure efficacite de I'effort consenti par I'Europe dans le domaine spatiale.

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Section V Non-governmental Organizations

Chapter 25

National Organizations USA: COMMUNICATIONS SATELLITE CORPORATION (COMSAT) AND INTERNATIONAL TELECOMMUNICATIONS CONSORTIUM (INTELSAT) A. DEVELOPMENTS IN

1967*

SATELLITE OPERATIONS AND DEVELOPMENT

While COMSAT is now five years old, it did not begin operations in any usual sense until April 6, 1965, when Early Bird, the world's first commercial communications satellite, was launched. This small pioneer, with a design lifetime of 18 months, is happily still in full-time service after three years, continuing to operate with complete reliability. Three satellites of the INTELsAT II series were launched during 1967 and successfully positioned in synchronous orbits at the altitude of approximately 22,300 miles, extending satellite coverage to more than two-thirds of the globe. These successful launches followed the launch in late 1966 of the first satellite in the INTELSAT II series which failed to reach synchronous orbit. The National Aeronautics and Space Administration launched the satellites, on a costs reimbursable basis, for COMSAT as manager for INTELSAT. Larger and more powerful than Early Bird and reaching the Southern as well as the Northern hemisphere, each satellite of the INTELSAT H series was built to provide 240 two-way voice circuits, when used with standard ground antennas, and multiple-access capability for operation with several stations at one time. The first of the 1967 launches occurred on January 11. This satellite (Pacific I) was positioned near 173.5 degrees east longitude where it is providing service between the United States and the Far East. The second satellite (Altantic II) was launched on March 22 and was positioned near 9.5 degrees west longitude supplementing Early Bird and expanding service in the Atlantic Ocean basin. The third satellite (Pacific II), launched on September 27 and positioned near 175.5 degrees east longitude, provides additional service in the Pacific area and serves as a backup for Pacific I. The final satellite of the INTELSAT II series, intended as an on-the-ground spare, is scheduled for completion in March 1968. Manufacture proceeded also during 1967 on the INTELSAT III series of satellites, although the contractor, TRW Systems, encountered certain problems with the result that scheduled delivery of the first satellite has slipped from spring to summer 1968. 'Extracts from the Communications Satellite Corporation Annual Report, 1967.

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Section V—Non-governmental Organizations INTELSAT III is designed for an expected life of five years and a design capacity of approximately 1,200 two-way telephone circuits. During 1967 the Corporation continued its studies of more advanced satellites to handle growing international traffic requirements. The Corporation has prepared specifications for an advanced version of INTELSAT III, called INTELSAT IIIVz and an INTELSAT IV satellite, and has asked manufacturers to submit proposals. The INTELSAT III% satellite would be similar to an INTELSAT III, but with greater capacity. In addition to an earth coverage antenna, it would have a directive antenna system which would focus its beams on eastern North America and western Europe. This would give it a capacity of up to 2,000 two-way telephone circuits. INTELSAT IV is to be a larger, more sophisticated satellite, having at least 5,000 voice circuits and greater operational flexibility and versatility.

EARTH STATION OPERATIONS AND DEVELOPMENT Initially, U.S. earth facilities for the global commercial system consisted of one station at Andover, Maine, built in 1962 by American Telephone and Telegraph Company (AT&T) to operate with the experimental Telstar satellite. This station has been operated by COMSAT since early 1965 and was purchased from AT&T in 1966. In the past three years, two new stations have been built at Brewster Flat, Washington, and Paumalu, Hawaii. Three others are under construction at sites near Etam, West Virginia; Jamesburg, California, and Cayey, Puerto Rico, and a second large antenna is being built at Paumalu, all of which are scheduled for completion in the fall of 1968. Three transportable earth stations which COMSAT procured in 1966 are still in service. Two of them, in Maine and Hawaii, have full telemetry and control capability for turning satellite transmitters on and off, for monitoring satellite spin rate, temperatures, orientation and condition of on-board equipment and power supplies and for occasionally repositioning the satellite. The third is in the Philippines, operating under lease to the Philippine Communications Satellite Corporation and providing regular communications on an interim basis. In addition to its U.S. earth station projects COMSAT has provided technical assistance to a number of developing nations in the planning and construction of their earth stations. Contracts are now in force to provide technical assistance to Chile, Venezuela, Peru, the Philippines, Republic of China, Thailand and Pakistan. In the past, COMSAT has provided limited technical assistance to Brazil, Colombia, Ethiopia, India and Nigeria, COMSAT also has helped some 40 developing countries to assess their needs for satellite communications by making studies of the economic feasibility of earth stations in those areas. The satellites of the global system are internationally owned. Earth stations are built and operated by entities in the countries where they are situated. Any country with an earth station, which in present design generally represents a basic investment of $4-6 million, will have direct contact with many other nations through high-quality modern communications. During 1967, a new high-capacity antenna was completed at Fucino, Italy, and placed in commercial operation following a live telecast to Italy of the arrival ceremony for President Saragat at the White House in Washington, D.C. At Buitrago, Spain, a full new earth station was completed and placed in service. Construction began during the year on new, high-capacity stations in Australia, the Philippines, Thailand, Canada, Japan, France, West Germany and the United Kingdom, where stations are now in operation, and in Chile, Mexico and Panama.

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COMSAT/INTELSAT Construction contracts were awarded or are pending in several other nations, including Morocco, Indonesia, Bahrein, Hong Kong, India, the Republic of China, Argentina and Brazil. At present, 16 earth stations are operating in 11 countries, and several others are under construction. Approximately 40 stations are expected to be completed in various nations by the end of 1969, with a number of additional ones expected to be completed in 1970. TECHNICAL AND RESEARCH ACTIVITIES

Each year COMSAT has expanded its research, analysis, design and testing activities for development of complete satellite systems. The goal of these activities is to maintain the technological leadership necessary for the improvement and expansion of commercial satellite services. During 1967 the COMSAT technical staff performed tests demonstrating the large potential of digital information transfer between computers via satellites. The staff completed a plan for an aeronautical service satellite and managed for INTELSAT a systems engineering study of the potential of this kind of service, conducted tests using the Pacific I and Pacific II satellites to verify methods of calculating minimum orbital spacing for communications satellites, and made technical and economic studies of the prospects for direct broadcast satellites. Studies continued during 1967 on advanced multipurpose satellites of higher capacity and greater flexibility for handling several classes of service simultaneously. The technical staff also performed vital work in orbital calculations for launches during the year and the preparation of major proposals and contracts. UTILIZATION AND RELIABILITY OF THE SYSTEM

Use of the system increased during 1967 to the equivalent of 717 full-time leased half circuits at the end of the year, compared to 73 a year earlier. Regular service in the Pacific Ocean region began on January 27, 1967, and was expanded on November 4 when the Pacific II satellite began operation. Demand increased markedly also in the Atlantic region. By the time the new, higher powered INTELSAT III series can be in orbit, now scheduled for the latter part of 1968, their capacity will be needed to meet requirements for increasing traffic. Transoceanic transmission of live television programs, first accomplished on a regular basis less than three years ago, is now becoming accepted as routine, although we still do not have the satellite capacity and earth station flexibility to handle it as easily and economically as we would like. While TV transmission accounts for only a small portion of system revenues, TV via satellite will have a profound effect on world news coverage, education and cultural exchange, providing a new forum for peoples of the world to exchange information and ideas. Some 200 hours of live, transoceanic TV were transmitted via INTELSAT satellite in 1967, more than double the amount of 1966. Television transmission rates were reduced during 1967, and further reductions will become possible as satellite system capacity and use expands. During 1967 the satellite system continued to operate with a high degree of reliability. The satellites themselves were completely reliable, with no service outages attributable to them. Operating reliability for the earth stations was 99.37 percent. For common carrier land lines between the earth stations and international switching centers, the reliability was 99.14 percent. OWNERSHIP OF THE CORPORATION'S SHARES

Although the number of persons holding Series I (public) shares of the Corporation has shown some fluctuation, the number of shares held by public share-

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Section V—Non-governmental Organizations holders has continually increased since the public offering in June, 1964, because Series II shares have been converted into Series I shares by sales of carrier-held shares to the public. As of December 31, 1967, the Corporation had 140,316 Series I shareholders of record holding a total of 5,478,464 shares, compared to 148,058 Series I shareholders holding 5,232,514 shares at the end of 1966. Also as of December 31, 1967, there were 120 Series II (carrier) shareholders holding a total of 4,521,550 shares, compared to 130 carriers holding a total of 4,767,500 shares a year earlier. This reduction during 1967 in the number of shares held by carriers was due largely to the sale in May of 235,000 of the 1,050,000 shares held by International Telephone and Telegraph Corporation, which remains the second largest Series II shareholder with 815,000 shares. The number of children owning Series I shares under Uniform Gifts to Minors Act registrations was 37,131 at the end of 1967, compared to 36,514 a year earlier. Nearly 60 percent of all Series I shareholders held 10 shares or fewer at the end of 1967. Series I shareholders, excluding banks, brokers and nominees, held an average of 23.1 shares at December 31, 1967, compared to 22.1 a year earlier. FINANCIAL REVIEW COMSAT realized net income for 1967 of $4,638,000, or 46 cents per share. Satellite system operations became profitable for the first time during the fourth quarter and reduced the net operating loss to $642,000 for the year. This was more than offset by other income of $5,280,000. Comparable earnings figures are not available for 1966 since the Corporation was then primarily in the development stage and did not report earnings on a conventional basis. Operating revenues grew significantly throughout 1967 due to expanded satellite service, and amounted to $18,464,000 for the year as compared with $4,273,000 for 1966. At December 31, 1967, the Corporation leased on a full-time basis the equivalent of 717 half circuits, compared to 73 at the beginning of the year when Early Bird was the only fully operational satellite; of those at the end of 1967, 322 were carried through the two Pacific INTELSAT II satellites which were launched during the year, and 395 were in operation over the Atlantic, utilizing both Early Bird and the InTELSAT II satellite launched in March. Pursuant to authorization by the Federal Communications Commission, the Corporation discontinued the practice of capitalizing satellite system development costs effective May 1, 1967, the date of commencement of full commercial operations. Amortization of such costs began on May 1, 1967. Operating expenses for 1967 were $19,106,000 after the transfer of $2,293,000 satellite system development costs applicable to the first four months of 1967. The unamortized balance of satellite system development costs at December 31, 1967, was $22,948,000. Since May 1, 1967, the Corporation has capitalized or deferred $1,463,000 of costs related to research and development and expenditures associated with developing both an aeronautical satellite system and the pilot demonstration program for domestic satellite service. Investment in satellites, earth stations and other tangible property totalled $60,691,000 at December 31, 1967. Of this amount, $21,012,000 represented property under construction which consisted principally of INTELSAT III satellites and three new earth stations. Expenditures for tangible property during 1967 amounted to $25,953,000, after deducting $13,133,000 received September 30, 1967, from six U.S. international communication common carriers for an undivided half interest in the three existing U.S. earth stations and in the three stations under construction.

444

COMSAT/INTELSAT Interest of $7,939,000 from temporary cash investments for 1967 was $1,617,000 less than in 1966, reflecting a lower investment level due to substantial expenditures for property. At December 31, 1967, the Corporation held $154,896,000 in investments with an effective annual yield of approximately 5.5 percent. The portfolio included $100,000,000 in negotiable certificates of deposit and $51,212,000 in Federal Agency obligations. B. AGREEMENTS CONCLUDED BY COMSAT

Earth Station Ownership Agreement between COMSAT, American Telephone and Telegraph Company and Others, dated 23 March 1967 THIS AGREEMENT, made and entered into this 23rd day of March, 1967, by and among COMMUNICATIONS SATELLITE CORPORATION ("COMSAT"), a corporation duly organized and existing under the laws of the District of Columbia ... AMERICAN TELEPHONE AND TELEGRAPH COMPANY ("AT&T"), a corporation duly organized and existing under the laws of the State of New York . . . HAWAIIAN TELEPHONE COMPANY ("Hawaiian"), a corporation duly organized under the laws of the Kingdom of Hawaii ... ITT WORLD COMMUNICATIONS INC. ("ITT WORLDCOM"), a corporation duly organized and existing under the laws of the State of Delaware ... irr CABLE AND RADIO, INC — PUERTO RICO ("rrrcRPR"), a corporation duly organized and existing under the laws of the State of Delaware . . . RCA COMMUNICATIONS, INC. ("RCA"), a corporation duly organized and existing under the laws of the State of Delaware . . and WESTERN UNION INTERNATIONAL, INC. ("wui"), a corporation duly organized and existing under the laws of the State of Delaware . . . (hereinafter called collectively "the parties"), WITNESSETH THAT: WHEREAS, COMSAT presently owns three earth stations, located at Andover, Maine, Brewster Flat, Washington, and Paumalu, Hawaii (hereinafter called the "Existing Earth Stations") which are capable of transmitting and receiving telecommunications via satellites; and WHEREAS, the parties recognize the necessity of constructing at this time three additional earth stations to be located respectively in the southeastern United States, the southwestern United States, and the Commonwealth of Puerto Rico, in order adequately to provide for telecommunication services via satellites for the immediate future; and WHEREAS, on December 7, 1966, the Federal Communications Commission (hereinafter called the "Commission") issued its Second Report and Order in Docket No. 15735 adopting a modified interim policy of joint ownership of earth stations by the parties; Now, THEREFORE, the parties, in accordance with such Second Report and Order and in consideration of the mutual covenants herein expressed, covenant and agree with each other as follows: ARTICLE I

Earth Station Establishment and Ownership 1.1 As soon as practicable, the following additional earth stations (hereinafter called the "Additional Earth Stations") shall be designed, developed, constructed, and established: (a) An earth station at a site in the Commonwealth of Puerto Rico or, if such site is not approved by the Commission, at such other site in the eastern Carib-

445

Section V—Non-governmental Organizations bean as may be selected by a committee to be established in accordance with Article II hereof (hereinafter referred to as the "Committee") and approved by the Commission. (b) An earth station at a site in the State of West Virginia .. . (c) An earth station at a site in the State of California .. . 1.2 Subject to further order of the Commission and in accordance with the undertakings herein, the Existing and Additional Earth Stations (hereinafter collectively called "the earth stations") shall be owned by the parties in common, in undivided shares, as follows:

OWNER

COMSAT AT&T HAWAIIAN ITTCRPR ITT WORLDCOM RCA WUI TOTAL

EACH EARTH STATION IN THE CONTIGUOUS STATES

50.0% 28.5

EARTH STATION IN HAWAII

EARTH STATION IN PUERTO RICO

50.0%

50.0%

30.0 7.0 10.5 4.0 100.0%

6.0 11.0 3.0 100.0%

30.0 11.5 4.0 4.5 100.0%

1.3 For purposes of this Agreement and subject to Article V, an earth station shall consist of: (a) all of the land, buildings and other structures, appurtenances, facilities (including interface and connecting facilities related to the earth station, but excluding interface and connection facilities related to the terrestrial communication system or systems with which the satellite system is connected), and all other property necessary or appropriate to establish, maintain, and operate the earth station complex and related thereto, including, in the case of each of the Existing Earth Stations, any transportable earth stations and related equipment in use at the station in the provision of telecommunication services via satellites, or available at the station for such use, at the time COMSAT transfers and conveys to other parties ownership interests in the station in accordance herewith, (b) all spare parts and standby components, and (c) all additions and improvements which may be provided from time to time. 1.4 Legal title to each of the earth stations shall be held in the name of COMSAT as nominee for the benefit of the appropriate parties, or in such other manner as such parties may from time to time agree; provided, however, that at all times the nature of the ownership interests of all owners shall be the same. 1.5 Subject to receipt by COMSAT of the payments required by Section 1.6, COMSAT shall transfer and convey ownership in the Existing Earth Stations to the other parties in the percentages specified in Section 1.2 on the first day of the first calendar month following the effective date of this Agreement or on such other date as the parties may agree (hereinafter called the "Closing Date"), and such ownership shall vest in the other parties on the Closing Date. The parties shall execute on the Closing Date such documents as may be necessary to effectuate the foregoing.

446

COMSAT/INTELSAT 1.6 For its ownership in the Existing Earth Stations, each of the other parties shall pay COMSAT its proportionate share, based on the percentages specified in Section 1.2, of: (a) the capital cost of each of such stations on the basis of the book cost of the station less depreciation accrued to the Closing Date in accordance with COMSAT's accounting practices, subject to any adjustments which may be required by a uniform system of accounts prescribed by the Commission and (b) all costs and expenses reasonably incurred by COMSAT in connection with the transfer and conveyance of ownership in such stations to such other parties. 1.7 As soon as practicable after the effective date of this Agreement, COMSAT shall deliver a statement to each of the other parties of the estimated amount to be paid by such party to COMSAT pursuant to Section 1.6; and each such party shall pay such amount to COMSAT on or before the Closing Date. 1.8 For its ownership in the Additional Earth Stations, each of the parties shall pay its proportionate share, based on the percentages specified in Section 1.2. 1.9, 1.10 [Allocation of additional capital costs] 1.11(a) The net amount of direct costs (including any losses incurred by reason of disposing of any tangible property) reasonably incurred by the parties between January 1, 1965 and the date of execution of this Agreement relating to the sites of the Additional Earth Stations (including alternative sites not selected for use) shall be included as capital costs and shared by the parties by attributing such costs to the respective Additional Earth Station site selected and allocating such costs to the parties in the percentages specified in Section 1.2 ... .

COMSAT AT&T HAWAIIAN ITT WORLDCOM ITTCRPR RCA WIN

Maximum Claim Allowable $ 200,000.00 100,000.00 20,000.00 60,000.00 240,000.00 50,000.00 25,000.00

When the total amount of the claims to be shared by the parties pursuant to this section has been determined by the Committee, COMSAT shall deliver to each party (including COMSAT) a statement showing the net balance due to or from it with respect to each of the other parties; and the amount of each such balance shall be paid within thirty (30) days after the date of the statement or by the effective date of this Agreement, whichever is later. (b) To the extent that any party incurs capital costs after the date of execution of and prior to the effective date of this Agreement in connection with the design, development, construction and establishment of the Additional Earth Stations, such costs shall be shared by the appropriate parties in accordance with the percentages specified in Section 1.2; provided, however, that the activity in connection with which such cost is incurred has been authorized by COMSAT as Manager. Claims shall be submitted and statements rendered and paid on account of such costs in a manner similar to that set forth in Section 1.11(a). (c) To the extent that any party has reasonably incurred any direct costs for and has acquired title to any tangible property intended for the Additional Earth Stations, which property is later determined not to be required for such earth stations, such party may either elect to retain such property for its own account, in which case it will not claim the cost thereof, or such party may dis-

447

Section V—Non-governmental Organizations pose of such property, using its best efforts to obtain the best available price. In the latter event, a supplemental claim or report shall be submitted to the Committee as promptly as possible, but in no event later than one (1) year from the effective date of this Agreement, and the Committee shall, subject to the limits set forth in the table in Section 1.11(a), act upon such claim or report, it being the intention of the parties that the net amount of any gain or loss shall be shared by the appropriate parties. 1.12 [Definition of "Capital Caste] 1.13 The parties shall share the maintenance and operating costs related to the earth stations and the rentals for the use of the earth stations in accordance with Annex A attached hereto and made a part hereof. 1.14 [Definition of "Maintenance and Operating Costs"] 1.15 Capital costs, maintenance and operating costs, and depreciation shall be determined in accordance with accounting practices established in the applicable system of accounts approved by the Commission, or, in the absence thereof, in accordance with the appropriate party's accounting practices consistently applied, subject thereafter to any adjustments which may be required by such system of accounts subsequently prescribed by the Commission. 1.16 COMSAT shall render monthly to each of the other parties a statement covering, on an estimated basis, the amount payable by each of the other parties as its share of the maintenance and operating costs anticipated during that month, and such amounts shall be paid to COMSAT within thirty (30) days of the date of each statement. 1.17 All statements rendered hereunder and based upon estimated costs shall be adjusted to reflect actual costs when determined, and such adjustments shall be appropriately reflected in subsequent statements. All delinquent payments of any statements rendered hereunder shall bear interest at the rate of six per centum (6%) per annum from the due date. ARTICLE It

The Committee

2.1 The parties shall promptly upon the execution of this Agreement establish a Committee consisting of one representative of each party. Each party shall also designate an alternate who shall be entitled to attend all Committee meetings and who shall act in the place of the representative during his absence. 2.2 The Committee shall have responsibility and authority to: (a) formulate policies and make major decisions regarding the design, development, construction and establishment of the Additional Earth Stations and the design and construction of additional antennas and of other major additions or improvements to or modifications of the earth stations; (b) provide overall policies pertaining to the operation and maintenance of the earth stations; (c) approve capital and annual operating budgets; (d) approve any contract or other financial commitment (i) expected to exceed five hundred thousand dollars ($500,000), or (ii) expected to cause the aggregate amount approved by the Committee in any current capital or operating budget to be exceeded by more than ten per cent (10%), which ten per cent (10%) shall include any express allowance in any such budget for contingencies. (e) approve the disposition of any real property or any major component of any earth station; 448

COMSAT/INTELSAT (f) designate a chairman, appoint such sub-committees and adopt such rules of procedure as the Committee deems necessary for the orderly conduct of its affairs; (g) perform such other acts and exercise such other powers as may be necessary or proper to effectuate the responsibility and authority of the Committee. 23 Voting upon questions before the Committee shall be as follows: (a) With respect to questions affecting all earth stations and questions arising under Section 2.2(f), each party shall be entitled to vote and such question shall be carried if it receives the favorable vote of two thirds (2/3) of the total ownership percentage. Any dispute as to whether a question affects all earth stations likewise shall be decided by a vote of two-thirds (2/3) of the total ownership percentage. (b) Questions affecting all earth stations shall be deemed to be those directly involving the design, development, construction, establishment, operation or maintenance of all earth stations and shall not include questions which are unique to a particular earth station, or to earth stations all of which are located within any one of the geographic areas set out in Section 1.2, and which affect only incidentally all earth stations. (c) For the purposes of Section 2.3(a) "ownership percentage" shall be determined in accordance with actual investment, that is, the ratio of each party's investment in earth stations to the total investment of all parties in all earth stations. COMSAT shall compute, as of the first day of each month, such ratio, which shall constitute the percentage to which each party is entitled for the purposes of such voting. COMSAT shall notify each party of such percentage, and voting at any Committee meeting held during that month shall be in accordance with such percentage. (d) With respect to any question pertaining solely to a particular earth station, or to earth stations all of which are located within any one of the geographic areas set out in Section 1.2, each party having ownership in such earth station or such earth stations, as the case may be, shall be entitled to vote in accordance with its ownership percentage specified in Section 1.2 for such earth station or such earth stations, as the case may be, and such question shall be carried if it receives the favorable vote of more than fifty per cent (50%) of the total of such ownership percentage. 2.4 The Committee shall meet at the call of the Chairman or at the request of any two representatives, and, in any event, shall meet not less frequently than monthly during the calendar year 1967, and not less frequently than quarterly thereafter. ARTICLE III

The Manager 3.1 COMSAT shall, in accordance with the policies and determinations made by the Committee, act as the Manager in the design, development, construction, establishment, operation and maintenance of the earth stations. COMSAT shall operate and maintain such earth stations in an efficient manner. 3.2 Except with respect to those matters of major significance or as may be otherwise required by law, COMSAT shall, in accordance with the policies and determinations made by the Committee, file on behalf of all interested parties with the Commission and other appropriate agencies such applications and other documents as may be required after the effective date of this Agreement in order

449

Section V—Non-governmental Organizations to proceed with the design, development, construction, establishment, operation or maintenance of the earth stations. 3.3 In addition to the functions stated elsewhere in this Agreement, COMSAT as Manager shall: (a) prepare and submit to the Committee on a timely basis a separate capital and annual operating budget for each of the following: (i) the earth station in Hawaii, (ii) the earth stations in the contiguous states collectively and (iii) the earth station in Puerto Rico; (b) recommend to the Committee programs and policies pertaining to the design, development, construction, establishment, operation and maintenance of the earth stations; (c) plan, conduct, and arrange studies, design work and development for additional antennas and other major additions or improvements to or modifications of earth stations; and make appropriate recommendations to the Committee pertaining thereto; (d) prepare and submit progress reports, periodic status reports with respect to budgets, and such other reports and information as the Committee may require; (e) furnish to any representative to the Committee such information as he may reasonably request and which can be provided without undue hardship by COMSAT. 3.4 COMSAT is authorized on behalf of the parties to enter into any contract or other financial commitment which may be appropriate and to make payments and accept performance under any such contract or other financial commitment; subject, however, to such approvals of the Committee as are required by Section 2.2. 3.5 COMSAT as Manager shall conduct discussions and negotiations with other earth station operators relating to earth station technical and operating matters involving the earth stations covered herein. 3.6 In December of each year, COMSAT shall be paid by the other parties an annual fee of seventy-five thousand dollars ($75,000) for its services as Manager during that calendar year. The parties, excluding COMSAT, shall pay such fee in proportion to twice their ownership percentages (determined in accordance with actual investment in the manner provided in Section 2.3(c)) as of December 1 of each calendar year. For the year 1967, the amount of such fee shall be prorated beginning with the date of execution of this Agreement. ARTICLE IV

Inventions and Technical Data 4.1 Except as otherwise unanimously agreed by the Committee representatives of the appropriate parties, all contracts entered into for the design, development, construction, management, operation, maintenance, improvement or modification of the earth stations shall contain appropriate provisions under which the contractor, in consideration of the payments to be made to it under the contract, (a) agrees to (i) assign to each of the parties an equal, undivided, joint interest with the contractor and each other in all United States patents issuing on inventions conceived in the course of the work performed under such contracts or any related subcontracts; provided, however, that with respect to AT&T, the agreement by the contractor to assign such interest to AT&T shall be limited to patents on inventions made pursuant to contracts involving research or develop-

450

COMSAT/INTELSAT ment work the cost of which is shared by AT&T, and in all other cases the contractor agrees to grant to AT&T and its affiliates an irrevocable, royalty-free, nonexclusive, unrestricted license for any and all purposes; and (ii) grant to each of the parties to this Agreement the irrevocable, nonexclusive, unrestricted right to use and have used throughout the world, for any and all purposes, all technical data arising directly from and during the work performed under such contracts or subcontracts; (b) grants to the parties and their affiliates, under all patents (other than United States patents) issuing on inventions conceived in the course of the work performed under such contracts or any related subcontracts, (i) irrevocable, royalty-free, nonexclusive, licenses for all purposes related to the design, development, construction and establishment of any earth station throughout the world (irrespective of whether any such earth station is subject to this Agreement), and (ii) irrevocable, nonexclusive licenses, upon reasonable terms and conditions, for any and all other purposes. For the purposes stated in item (i) of this subsection (b), appropriate provisions shall be included in contracts pursuant to which the contractor also agrees to grant irrevocable, royalty-free, nonexclusive, licenses to any other person designated by COMSAT. In such connection, COMSAT agrees to so designate any other person named by any other party. 4.2 Each contract referred to in Section 4.1 shall, to the extent appropriate, contain provisions which will insure that (a) United States and foreign patents owned by the contractor and its subcontractors covering inventions directly incorporated in work performed under the contract will be nonexclusively licensed on reasonable terms and conditions to the parties and their affiliates to make, have made, use, and sell under such patents to the extent necessary to make or have made effective use of the patents and technical data referred to in Section 4.1 for the earth stations; (b) technical data owned by the contractor and its subcontractors which are directly incorporated in work performed under the contract, may be used in any country of the world, under reasonable terms and conditions, by the parties and their affiliates to the extent necessary to make or have made effective use of the patents and technical data referred to in Section 4.1 for the earth stations. 4.3 Except as otherwise unanimously agreed by the Committee representatives of the other parties, COMSAT as Manager agrees to grant to each of the other parties and their affiliates, an irrevocable, nonexclusive, unrestricted, royalty-free license, to use and have used all technical data developed, and to make, have made, use and sell under all patents issuing throughout the world on inventions made by employees of COMSAT prior to the termination of this Agreement and arising directly from and during the course of the performance by COMSAT as Manager of its duties specifically related to the design, development, construction, establishment, operation and maintenance of the earth stations and the costs of which are shared by the parties pursuant to this Agreement. To the extent that COMSAT performs any functions as a contractor to the parties in connection with this Agreement, the provisions of Sections 4.1 and 4.2 shall apply and this Section 4.3 shall not apply. 4.4 The transfer by COMSAT to the other appropriate parties of ownership in the Existing Earth Stations at Brewster Flat, Washington and Paumalu, Hawaii shall include the grant to such parties and their affiliates of irrevocable, unrestricted, nonexclusive, royalty-free licenses, and the right to receive, upon request, the right to grant sublicenses, for the use of inventions and technical data as to which COMSAT has acquired a right of use under contracts relating to the

451

Section V—Non-governmental Organizations design, development, manufacture or use of equipment or components pertaining to either of such earth stations, but only to the extent to which the right of use so acquired by COMSAT may be so granted or used; provided, however, that the grant to AT&T and its affiliates shall not include any such right to receive, upon request, the right to grant sublicenses. 4.5 The transfer by COMSAT to the other appropriate parties of ownership in the Existing Earth Station at Andover, Maine, shall include the grant to such parties and their affiliates, on a nonexclusive basis, of such rights with respect to inventions and technical data as COMSAT may have acquired from AT&T pursuant to the Agreement of Sale between AT&T and COMSAT dated August 26, 1966; subject, however, to all such restrictions with respect to the use of such inventions or data as are specified in said Agreement of Sale, and to the agreement by each of such parties to undertake toward AT&T obligations identical to those of COMSAT under said Agreement. 4.6 For the purposes of this Article IV, the term "affiliate" shall mean a company controlling or controlled by or under common control with a party to this Agreement and additionally with respect to AT&T, the companies of the Bell System and The Bell Telephone Company of Canada, a Canadian corporation, and its subsidiaries. 4.7 With respect to any action or suit against the parties or their affiliates for infringement or alleged infringement of any patents of third parties based upon the property or equipment, or the use of such property or equipment, which is part of the Existing Earth Stations at Brewster Flat, Washington and Paumalu, Hawaii on the Closing Date, the parties agree that to the exent that (i) COMSAT has obtained an indemnity with respect to such property or equipment, or the use of such property or equipment, under which the seller, manufacturer, dealer or any other person has agreed to defend, indemnify or hold COMSAT harmless with respect to such actions or suits and (ii) the seller, manufacturer, dealer or any other person cannot be legally required, by COMSAT or the other parties, either by reason of this Agreement or otherwise, to defend, indemnify or hold harmless the other parties, then COMSAT shall, to that extent, defend, indemnify or hold harmless the other parties with respect to such actions or suits. ARTICLE V

Other Property 5.1 Any property owned by a party other than COMSAT which is located at an earth station but which is not part of the earth station, such as interface and connecting facilities related to the terrestrial communication system with which the satellite system is connected, shall not be deemed to be owned by any other party. Any such property shall be clearly distinguished and identified by the party owning it. 5.2 None of the parties other than COMSAT shall be deemed to own any property which is owned in undivided shares by the members of the International Telecommunications Satellite Consortium and which is situated at or relates to any of the earth stations, including expressly but not by way of limitation, telemetry and control equipment. Any such property and any inventions or data related thereto shall be clearly distinguished and identified by COMSAT. 452

COMSAT/INTELSAT ARTICLE VI

Warranties and Insurance 6.1 COMSAT makes no representations or warranties, express or implied, with respect to any property constituting any of the Existing Earth Stations, except that (a) COMSAT represents and warrants that each Existing Earth Station will be in good repair and normal operating condition at the Closing Date; and (b) COMSAT represents and warrants that at the Closing Date the Existing Earth Stations shall not be subject to any lien or encumbrances created or suffered to be created by COMSAT, other that liens for taxes not yet due. COMSAT expressly disclaims all other warranties which might be otherwise implied by law herein or in any documents executed pursuant hereto, such as a warranty of merchantability or of fitness or of suitability for a particular purpose. 6.2 The transfer by COMSAT to the other parties of ownership in the Existing Earth Stations at Brewster Flat, Washington, and Paumalu, Hawaii, shall include an assignment, to the extent to which COMSAT has the right to do so, of an undivided interest in all of the right, title and interest in and to any and all unexpired warranties relating to earth station property. If any of such warranties are assignable only with the consent of the warrantor, COMSAT hereby agrees to request such consent upon request of any other party. 6.3 In the event that COMSAT recovers: (a) any amount from AT&T arising out of any representation, warranty, undertaking, deed or bill of sale pursuant to the Agreement of Sale between AT&T and COMSAT with respect to the Existing Earth Station at Andover, Maine, dated August 26, 1966, or (b) any amount from any seller, manufacturer, dealer, insurer or any other person arising out of any representation, warranty, undertaking, insurance or indemnity with respect to any earth station, all amounts so recovered shall be paid by COMSAT to the owners of the applicable earth station in proportion to their respective ownership interests as set forth in Section 1.2. 6.4 COMSAT shall, subject to the approval of the Committee, cause the parties to be insured in such amounts and in such manner as will adequately protect the parties against risks arising out of the design, development, construction, establishment, operation and maintenance of the earth stations. Any such insurance shall name as assureds each of the parties as their interests may appear. ARTICLE VII

Genera! 7.1 The relationship between or among the parties shall be that of owners in common and not that of partners. Nothing herein contained shall be deemed to constitute a partnership among the parties, and the joint undertaking among the parties shall be limited to the express provisions of this Agreement. 7.2 Neither COMSAT, acting in any capacity hereunder, nor any other party as such, shall be liable to any other party for any loss or damage whatsoever sustained in connection with the design, development, construction, establishment, operation, maintenance, improvement or modification of the earth station; pro-

453

Section V—Non-governmental Organizations vided, however, that nothing in this section shall be deemed to preclude any party from any other remedy against any other party. 7.3 Each party having ownership in an earth station shall be entitled to reasonable and non-discriminatory access to, and upon fair, equitable, and nondiscriminatory terms to suitable space at, the earth station for operating purposes authorized by the Commission; provided, however, that such use shall not cause interference with the operation or maintenance of the earth station and that suitable space is available. In the event that suitable space is not available, the appropriate parties shall at their expense provide additional space sufficient for the requirements of the party entitled to such space. 7.4 Ownership of any party in any earth station shall be transferable only among parties to this Agreement, except pursuant to order of the Commission. 7.5 Notwithstanding any provision in this Agreement, each party reserves the right to bring before the Commission or other appropriate body any proceeding or matter and to assert any position it deems appropriate in any proceeding or matter before the Commission or other appropriate body. No party shall assert its ownership percentage in support of, or in opposition to its own or any other party's application to the Commission for authorization to use satellite channels provided through the earth stations. 7.6 COMSAT shall keep and maintain such books, vouchers, accounts, and other records of its costs and expenses with respect to the design, development, construction, establishment, operation and maintenance of earth stations pursuant to this Agreement as may be appropriate to support its statements rendered hereunder and shall at all reasonable times make such records available for the inspection of the other parties. 7.7 The parties shall take any such further action and execute any such further documents as may be required or appropriate to effectuate the provisions of this Agreement. 7.8 This Agreement and the actions of the parties taken pursuant thereto shall be subject to applicable orders of the Commission and to the obtaining and continuance of such approvals, consents, authorizations, licenses and permits as may be required to effectuate the purposes of this Agreement. 7.9 For the purposes of this section and Article I, the effective date of this Agreement shall be the tenth (10th) day after the publication by the Commission of the later of the following: (i) The approval by the Commission of the transfer of ownership in, and the grant of authority to operate, the Existing Earth Stations in accordance with this Agreement; and (ii) Submission to the Commission by or on behalf of all appropriate parties of applications for construction permits with respect to the Additional Earth Stations. Upon the execution of this Agreement, the parties shall take all steps necessary or appropriate to obtain the approvals and make the submissions referred to in (i) and (ii) above. 7.10 If the Commission by order or authorization imposes any terms and conditions with respect to any authorization or construction permit referred to in Section 7.9 which substantially and adversely affects the interests of any party, such party may, within five (5) days of the release date of such order or authorization, give written notice to the other parties of its election to terminate this Agreement. Thereafter, this Agreement shall terminate at the close of business on

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COMSAT/INTELSAT the tenth (10th) day following the date of the giving of such notification. Unless this Agreement terminates by reason of such notification, it shall continue in effect for an initial period until December 31, 1969, and thereafter subject to further order of the Commission. Any termination of this Agreement and the parties' interests hereunder shall be pursuant to such appropriate procedures regarding transfer of ownership, reimbursement of capital costs, and other necessary actions as shall be fair and equitable, agreed to by the parties, and approved by the Commission. 7.11 Except as otherwise provided in Section 4.7, if any legal action or suit arising out of ownership of the earth stations is asserted by any third person or entity against any of the parties, the other parties shall join or cooperate in the defense of such action or suit in such manner and to such extent as may be necessary or appropriate, and, unless already included in maintenance and operating costs, shall share the costs and expenses of and any liability arising out of such action or suit in the same proportions as they share the costs of maintaining and operating the earth stations. 7.12 Each party shall provide to the others (i) a duly authenticated extract of the minutes of its Board of Directors or Executive Committee authorizing the execution of this Agreement and such action as may be necessary to implement it, and (ii) an opinion of its counsel that the execution of this Agreement has been duly authorized and is in accordance with the statutes, charters, regulations, and by-laws governing it. 7.13 This Agreement constitutes the entire contract between the parties and may be amended only by further agreement in writing. 7.14 This Agreement shall be interpreted under the laws of the District of Columbia. 7.15 This Agreement shall be executed in seven (7) counterparts, and each executed counterpart shall be deemed an original ... . ANNEX A

1. Because of the difficulties involved in predicting use of the earth stations in the formative period, i.e., the period ending December 31, 1969, it is agreed that the parties shall share the maintenance and operating costs of the earth stations and that the parties other than COMSAT shall share the rentals received pursuant to this Annex for the use of such earth stations in proportion to their respective percentages set forth in Section 1.2 of this Agreement, without regard to the extent of usage by the parties. 2. Thereafter, in the event that the Commission, by action contemplated pursuant to Paragraphs 31 and 32 of the Commission's Second Report and Order in Docket No. 15735, approves the extending of the basis of sharing of ownership of earth stations for the interim period, the parties shall include in their recommendations to be submitted no later than October, 1969 for Commission approval, proposals for reallocation of the ownership quotas of the parties other than COMSAT among each other, which may be indicated on the basis of operating experience and the ownership related to use standard as established by the Commission in its Second Report and Order. Such allocation shall be reviewed and adjusted bi-annually in accordance with the foregoing principles. Any party whose original ownership equity is more than the new percentages so determined would have the right to sell the portion of its unamortized equity related to such excess ownership. If such party does not elect to do so, it will not be entitled to share

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Section V—Non-governmental Organizations in earth station rentals in relation to such excess ownership and will not share the maintenance and operating expenses allocable thereto. Such operating and maintenance expenses will be shared by the other parties excluding COMSAT. 3. The owners of the earth stations shall make such earth stations available to COMSAT for the purpose of furnishing satellite communication services under applicable tariffs to authorized carriers and authorized users pursuant to authorizations of the Commission, which tariffs shall be COMSAT's tariffs unless the Commission otherwise directs; for the purpose of conducting normal experimental activities; and for the purpose of engaging in such additional experimental, promotional and other activities as may be approved by the Committee. As compensation for the right to make such uses of the earth stations, COMSAT shall pay monthly to the other owners of such earth stations a rental at the rate of seven hundred fifty dollars ($750.00) per each half-circuit or equivalent half-circuit established through the earth stations. Such rentals will be distributed to each earth station or geographic group of earth stations on the basis of the actual average number of half-circuits or equivalent half-circuits provided through each earth station or geographic group of earth stations during that month. Said amounts will then be distributed to each owner, excluding COMSAT, on the basis of its ownership share, as may be appropriate, in accordance with Paragraphs 1 and 2 of this Annex. 4. In December of each year, the Committee shall review the rental rate for the purpose of determining whether such rate shall continue for the following year. The Committee may also consider the question of whether separate rental rates shall be established for each earth station or geographic group of earth stations. In the event that representatives of parties having two-thirds (2/3) of the total ownership percentage vote in favor of a change in the rental rate or in favor of such separate rental rates, then such change shall be implemented. In the event that representatives of parties having fifty percent (50%), but less than two-thirds (2/3), of the total ownership percentage vote in favor of a proposed change in the rental rate or the proposed establishment of such separate rental rates, the matter will be submitted, at the request of any party, to the Commission for a final determination. Unless and until the rental rate is changed by the Committee or the Commission in accordance with the foregoing procedure, the then existing rate shall remain in effect. Any change in the rental rate approved by the Committee or called for by the Commission shall be effective as of January I, or such other date as either the Committee or the Commission shall deem appropriate, of the year to which it applies and shall continue in effect throughout that year. For the purposes of this paragraph `ownership percentage" shall be determined in the manner set forth in Section 2.3(c) of this Agreement.

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