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the water. On the other hand, it is almost impossible that it should not be discovered in the work of espionage.
The failure of the international conference of 1910 at Paris was said to have been on account of the attitude of certain Powers, including Great Britain, which desired to preserve the right to close their frontiers absolutely to air-ships of any nationality or all nationalities whenever it pleased them without the necessity of having to justify their conduct in so doing. The English Aerial Navigation Act of 1911 (L. R. Gen. St. 1911, c. 4, p. 14) confers upon a Secretary for the purpose of public protection the right from time to time to issue orders prohibiting the navigation of air-ships above territory named in the order and during the time therein stated, and the order may be for air-ships in general or for the kind of air-ships described therein and any person violating the Act is made subject to imprisonment for six months or a fine of 200 pounds, or both. The prohibition may be temporary or permanent.
In the Associated Press dispatches of March 4, 1913, it is stated:
“Under authority conferred by the aerial navigation act the home secretary has issued orders prohibiting foreign military or naval air crafts from passing over any portion of the United Kingdom or territorial waters except on invitation and by permission of the government.
"All other foreign air craft coming to the United Kingdom are required first to obtain clearance papers from the British consuls. Landings will be restricted to certain areas of the coast, where the air pilots must report to the authorities and obtain a permit for the continuance of the voyage. They are prohibited from passing over certain districts in which are included the military and naval stations.
“Anyone infringing the regulations, it is announced, is liable to be fired on, and the offense is punishable by six months' imprisonment or a fine of $1,000. Aeronauts guilty of espionage are liable to seven years' penal servi
If these orders are correctly stated they might be sustained not only upon the theory of the absolute sovereignty of the
air but also upon the theory that the regulations are restrictions for the proper policing of innocent passage, while the right to exclude military or naval air craft would be everywhere conceded. The action of the British authorities would of course not necessarily express the rule which will ultimately be established in International Law.
A memorandum of the rules promulgated under the English Aerial Navigation Act, 1911, will also be found in the New York Nation, Vol. 96, No. 2491, p. 302, issue of March 27, 1913. The concluding comment of the editor is “No foreigner yet heard of would be brave enough to run the gauntlet of these regulations.” At least they produce the impression that England is not at home to callers by air. The most reasonable prospect for the amelioration of severe rules lies in the discovery of a way to make international aerial navigation commercially profitable. I have more hope in the activities of an enterprising Airship Company than in a declaration of the rights of man.
The progress of legislation over the air goes on in various countries. As early as March 12, 1909, the French Minister of the Interior issued a circular to local officials prescribing the action to be taken in case of the landing for foreign balloons within their respective territorial divisions.
According to press dispatches of May 10, 1913, important new legislation has been approved by the French Cabinet, and is to be brought before the Chamber of Deputies.
In foreign countries the practice is coming into vogue of forbidding the passage of air craft over a city at a time when crowds will be gathered there, as in case of a royal visit or a public procession.
The earliest American “Act concerning the registration, numbering and use of air-ships and the licensing of operators thereof” was the Connecticut statute drafted by Governor Baldwin and approved June 8, 1911 (Conn. Pub. Acts 1911, p. 1348). It forbids under penalty of fine or imprisonment, or both, aviation from one point within the state to another except by licensed operators, requires registration of each air-ship, the carriage of the registration certificate, and a display of its number in figures not less than three feet in height, provides for examination for license, but for the recognition of licenses
already issued by competent societies, and for the revocation of licenses, and allows non-residents licensed and having airships registered in the states where they reside to fly ten days in a year in Connecticut without a license. The liability clause (Sec. 11) is as follows:
“Every aeronaut shall be responsible for all damages suffered in this state by any person from injuries caused by any voyage in an air-ship directed by such aeronaut; and if he be the agent or employee of another in making such voyage his principal or employer shall be responsible for such damage."
When aeroplanes become as plentiful blackberries, Connecticut will be found prepared. Upon the questions whether an aerial robber is a pirate, and whether an air-ship falls within the admiralty and maritime jurisdiction of the United States, the statute naturally gives us no light.
By the Massachusetts Act of May 17, 1913, to regulate the use of air craft, provision is made for the license of aviators upon satisfactory examination and after registration. The duty is imposed of showing the registered number in numerals not less than two feet high. Rules of the air are prescribed for meeting head on, meeting obliquely, and overtaking, corresponding with the marine practice. Air machines are forbidden to fly over municipalities except at prescribed altitudes, or to fly over crowds of people. An aviator is held liable for injury resulting from his flying, unless he can demonstrate that he has taken every reasonable precaution to preevnt such injury.
Throwing or dropping missles without special permission is forbidden as is also landing upon public property without permission.
The Act does not apply to military aviators while in service. Licenses of other states are recognized for a period not exceeding ten consecutive days. Violation of the Acts is punishable by fine of not more than Five Hundred Dollars and imprisonment not more than Six months, or both.
There appear to be very few cases in English or American books upon the liability of aviators.
In the celebrated case of Guille v. Swan, 19 John. (N. Y.) 381 (1822) Guille descended into Swan's garden, his body hanging out of the car of the balloon in a very perilous situation, and called for help. The balloon as it descended dragged over potatoes and radishes about thirty feet before Guille was taken out. About two hundred persons broke into Swan's garden through the fences, beating down the vegetables and flowers. Swan brought an action of trespass and the court held the Guille was responsible for the acts of the crowd in treading down and destroying the vegetables and flowers. The court said that Guille ought to have foreseen and be responsible for what happened since it was likely to occur and also that his perilous position and cries were equivalent to a request to the crowd to follow him.
There is a Scotch case whose facts are much like those of Guille v. Swan. It is Scott's Trustees v. Moss, 17 Ct. of Session (4th series) 32 (1889). In this case, the defendant, who was not the aeronaut but the occupant of a recreation ground, had advertised a descent of a parachute. The descent occurred upon a farm adjoining, and a crowd, who had not been in the recreation ground, rushed in and trampled a field of turnips where the parachute descended. It was held the action would lie, if the occurrence was the natural and probable result of the defendant's acts.
In the Green Bag for August, 1911, (Vol. 23, p. 398) will be found a translation of a short but very interesting article by Professor Hans Sperl setting forth the prevailing theory in Germany that the state is unrestrained sovereign over the air above, but accepting in the main the analogy of territorial waters, and supporting the absolute liability of aviators for all damage caused by them, without regard to negligence. I make the following quotation from this article:
“A very remarkable case was brought up in the Belgian Chamber of Deputies in June, 1909, by the Minister of Justice, Lantsheere. Near a small town a balloon began to collapse from loss of gas. The pilot, seeing himself forced to land, chose for himself an open space beyond the town. As he flew just above the roofs of the houses, with his ropes dragging in the streets, the inhabitants, supposing he wished to be drawn down, seized the ropes. The aeronaut cried to them to release him; his cries were not
understood, were assumed to be cries for help, and the townsmen pulled the balloon to the earth. The pilot was forced to open his valve to release the gas. In the second story of a house in the narrow street a man was smoking; his cigarette ignited the escaping gas, and there was an explosion, with dead, wounded and destruction of property. The court compelled the aeronaut to pay all damages, because he was held responsible for the accident."
It is not unlikely that when the art of aviation is perfected, and air craft become a familiar sight, we will cease to treat the owner of an air-ship as if he kept a wild animal. I do not see why aeroplanes should be put in a different class from automobiles whose operators exact a much heavier toll of life and limb from the public.
Since the days of Darius Green, that ill-fated pioneer in American aviation whose exploits are celebrated in the genial verse of Trowbridge it has been well known that the chief difficulty about flying is alighting. Having for some time hovered lightly over this great subject sustained chiefly by your good will and courteous attention, I have now the ancient trouble about terminals. I will deflate at once hoping for better fortune than the Belgian aeronaut who suffered at the hands of his friends, first an explosion and then a law suit.
Mr. Ewing :-Because we have a natural claim upon him and because of his distinguished ability, and because the Association can not afford to lose hold of a man that can advise us when we get in the air, I move that the Honorable Blewett Lee be made an honorary member of the Association.
A Member:-I second the motion.
The President:It is moved and seconded that Mr. Lee be made an honorary member of the Bar Association. I will say to Mr. Lee before the motion is put that he does not have to pay dues if that is passed. You are unanimously elected, Mr. Lee, as a member of the Tennessee Bar Association and in its behalf I can extend to you the right hand temporarily of the Association. I mean by that I will not furnish the right hand temporarily, but you will always have it.