Aviation law: An Overview

I am sure most of us have travelled at least once, in an airplane or have seen an airplane. Do you not wonder how is the aviation industry regulated? What are the legislations regulating the same? How are the movements of airplane regulated? or what will happen if any wrong is committed during a flight? Which laws shall then be applicable? We shall have an answer for all such questions through this article.

First of all, we must understand what does Aviation law means.

  • Meaning and purpose of Aviation Law

 Aviation law or Air Law is the branch of law that concerns flight, air travel and associated legal and business concerns. Aviation law concerns with airplane traffic rights, safety measures to be ensured, operation of airports. Aviation law is a branch of international law and it deals with civil aviation including international institutions, but it does not include military aircrafts, customs and police services. Aviation law governs the relationships between the states, passengers and service providers regarding the field of air travel and apart from this it also regulates its impact on environment as a whole. It enables the governmental bodies to formulate rule regarding export, import, manufacturing, as well as the protection of aircrafts.[1]

In today’s scenario, since the technology relating to aircrafts is gaining new heights, the issue of safety is of great concern. To maintain a disciplined pattern, and to prevent any discrepancies, a law is needed and that requirement is fulfilled by various conventions and legislations on Aviation law. Further, eminent British jurist H. Lauterpacht highlighted the need of aviation law. He stated that a solution to the problems relating to international civil aviation was a matter of future. In the aviation law, the overarching goal of the air relations is security and safety.[2]

The main purpose of aviation law can be understood from the fact that the economic growth of states is closely related to the aviation sector. The states can coordinate trade and trade practices. Aviation law also ensures in maintaining cooperation between the states and facilitate competition. The world is observing huge escalation or growth in globalization and regionalization which dramatically increased interactions between the countries and it resulted in a huge growth in the international travel, especially air travel. Aviation industry performs a multidisciplinary role in the development of different countries and aids in maintaining the international, social as well as economic connections.

Dr. Griselda Capalda states that: “International civil aviation transports 2.5 million passengers each year and 35% of the value of all the international trade, producing an estimated impact on the global economy of around USD 3.65 billion, equivalent to 7.5% of Gross World Products.”[3]

  • Origin of Aviation law

The very first attempt to codify aviation law at international level was carried out when German balloons made several air flights above the territory of France. For safety reasons, the French government decided to resolve the problem through an agreement between the two countries. In 1910, The Paris Conference was held and basically, the idea of freedom of the air was not a result of it but it vouched for the sovereignty of states in the air and space above the country’s territory. After the First World War, on 8th February 1919, the first scheduled air service between Paris and London was started, after which Air Law or Aviation law became a prominent means of transport and was to be subjected to the functional rules of other modes of transportation.

  • Important International Conventions

To regulate Aviation law, various international conventions are in place or are formulated. These conventions are signed by various states. They regulate aerial navigation and lay down ground rules for the states for regulating aviation industry. Some of the International conventions are as follows:

  1. Convention relating to the regulation of aerial navigation, 1919 (Paris Convention). This convention was signed by 26 countries.

  2. Pan American convention on commercial Aviation, 1928 (Havana Convention). This convention regulated the formation of Inter American Commercial Aviation Commission.

  3. Convention for the unification of certain rules relating to International Carriage by Air, 1929 (Warsaw Convention).

  4. Chicago Convention on International Civil Aviation, 1944 (Chicago Convention). This Convention was signed by 53 states and it came into force from 14th April, 1947.

  5. Convention for the Unification of certain rules for International Carriages by Air, 1999 (Montreal Convention).

 

Most of the aviation is carried out internationally and therefore, the world community has come together to unify the international rules and have drafted multilateral conventions. These multilateral conventions aimed at securing the protection and safety of the public, mainly.

 

  • Convention on International Civil Aviation (Chicago Convention)

Convention on International Civil Aviation is commonly referred to as Chicago Convention. The Chicago Convention is considered as an organic constitution for organizations as well as a major source of Air law or Aviation law. On 7th December, 1944, the Convention on International Civil Aviation was signed at Chicago. For international civil aviation activities, the convention laid a legal framework while the other facets of the activities are covered by various other bilateral and multilateral agreements.

The main instruments adopted by the Conference were:

  1. Provisional International Civil Aviation Organization (PICAO) to be set-

up as an interim agreement until the main convention is enforced.

  1.  Main Convention i.e., the Convention on International Civil Aviation to be

adopted. It replaces all the previous international organizations including

the Paris Convention on Aerial Navigation of 1919.

  1.  Two Freedoms Agreement or the International Air Services Transit

  2. Five Freedoms Agreement or the International Air Transport Agreement.

  3.  12 annex drafts to the main Convention that sets out recommendations

and standards for the operation of International Civil Aviation.

  1.  For the international scheduled air services, standard form of bilateral

agreement was recommended for the exchange of traffic rights. [4]

 

Chapter III of the Chicago Convention deals with the Nationality of the Aircraft. Article 17 provides that the aircraft have the nationality of the State in which they are registered. Further, dual registration is mentioned in Article 18. The Chicago Convention highlights that an aircraft cannot be registered in more than one State. However, the registration of an aircraft can be changed from one State to another. Every aircraft engaged in international air navigation shall bear its nationality and registration marks.[5]

 

There are legislations formed in India to regulate Aviation industry and to coordinate flight movements and other legal aspects of the Aviation law. The legislations are as follows:

  1. The Aircraft Act, 1934: In India the earliest legislation that was formulated to regulate the aviation industry was the Indian Airships Act, 1911. The was enacted with the intent to control the possession, manufacture, import and export, use, and the sale of the Airships. In India till the late twentieth century there was no recurring flying operations carried out except the Humber flights in 1911. Further, the manufacturing, sale and the allied activities of the aircraft were not even started in India. Therefore, the Act and the regulations on such activities appeared to be equally ludicrous. Thereafter, the Aircraft Act, 1934 was enacted.

  2. The Carriage by Air Act, 1972: The Indian Carriage Act, 1934 was repealed because it dealt with only international air navigation and domestic air carriage was regulated by common principles.

  3. The Anti- Hijacking Act, 2016: this act was enforced on 5th July, 2017. The main reason for regulating this act was a few hijacking incidents that had taken place. One of the incidents was the Hijacking of Indian Airlines flight 814.

 

  • Judiciary in India and Aviation Law

The developing trends in the aviation industry forced the governments to enact laws and conventions for all the concerns. India also became the member of most of the conventions and tried to incorporate them in its domestic aviation legislations as well. The judiciary i.e., the courts also passed several landmark judgments which have helped in the growth of aviation laws in India as well as cleared the stance of India with regards to the International aviation legislations.

Following are some of the landmark cases:

  1. Parsam Parumal Dabrai vs The Air India Limited

  2. Indian Airlines corp. vs sm. Madhurai Chowdhari

  3. U.S. Awasthy vs Gulf Air

  4. Rukhamanand Ajitsaria vs Airways (India) ltd.

  5. Airport Authority of India vs Ushaben Shirish bhai Shah ors.

 

In the case of Parsaram Parumal Dabrai, the issue before the court was whether the consignment shipped was an international carriage within the meaning of Carriage by Air Act, 1934? from Karachi the shipment was reserved and to Bombay it arrived. The Court observed that the delivery was an international carriage as with effect from the independence of India Act of 1947, India and Pakistan were divided as two autonomous countries. With the implementation of Indian Independence (International Arrangements) Order, 1947, India and Pakistan were deemed as the High Contracting Parties as per the provisions of the Warsaw Convention. Therefore, consignment was held as the international carriage within the context of Carriage by Air Act 1934. Before the enactment of the Carriage by Air Act, 1972, the courts in India applied the common law of the England to impose the liability and measure the damage of the air carrier. The Carriage by Air Act, 1934 was only applicable to the international air carrier, so in domestic matters the court has passed a number of judgments based on the common law.

  • Conclusion

Aviation law and Aviation industry is an emerging industry and comparatively a new aspect of law which is why it is not yet fully developed and has various scope for ambiguity. There are a few issues that are not yet been cleared by the international conventions on Aviation law or air law. Issues like which crimes are to be considered as to have been committed on board? What shall be the criteria of deciding the jurisdiction? Many such issues are yet to be resolved but still we can safely say that Aviation law has emerged with years passed and has developed highly.

 

[1] Ronald I. C. Bartsch, International Aviation Law 3-4 (Routledge, New York, 2012).

[2] H. Lauterpacht (ed.), International Law 529 (1963).

[3] Impact of Aviation Law on International Trade, available at:

http://ariaslaw.com/boletines/Newsletter%20Mayo%202015/ENG_CR_MAY2015.pdf (last visited on June 6,

2020).

[4] Lexlife course on aviation law

[5] Article 20 of the Convention on International Civil Aviation, 1944.

 

               

Name: Sanjushree Deo

College: ILS law College, Pune. 

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