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But even if a private action would lie against him for any damage arising from the events of his voyage, Anglo-American law would throw serious impediments in the plaintiff's way.
It is, to say the least, doubtful if an air-ship invades the rights of private landowners by simply flying over their property at such a height as to cause them no substantial inconvenience.13 If there be an actionable invasion, the common-law remedy is by a form of suit (trespass on the case) which can be brought wherever the defendant could be served with process.
But prima facie, certainly, when an air-ship descends to the earth, an actionable and direct wrong is committed against the owner of the land on which it comes to rest, unless his consent has been previously obtained. The remedy at common law was an action of trespass quare clausum fregit. It could be brought only in a court having jurisdiction over the land in question. The same rule generally obtains as to the modern form of action for such an invasion of another's rights. An aviator who lit upon a farm in Massachusetts could be sued only in Massachusetts, whether the proceeding were in the State or federal courts. Nor could his air-ship be seized on in rem process, issuing from either, under existing laws.
A statute enacted by a State authorizing a suit in rem in such case would justify the proceeding, if Congress had not acted in the matter. Congress might so act and, with regard to voyages from out of a State into a State, or vice versa, could give a remedy by attachment of the air-ship in the courts of the United States.
In the absence of some such statute, the remedy of the land-owner would often be illusory. The air-ship or balloon descends, comes in sudden contact with his house, or mutilates a shade tree on his lawn. It then regains the regions of the air by a new flight, or is hurriedly crated and carted away before he has an opportunity to procure a writ of attachment in an ordinary suit. The aviator is unknown to him, and, if known, would often be of no pecuniary responsibility. He may be a foreigner, against whom no action would lie in his own country. All these considerations call everywhere for remedial legislation.
13 Pickering v. Rudd, 4 Campbell's Reports, 219; 1 Starkie's Reports, 56.
Among the first questions to be met is one of the comity of nations. Shall a government license issued in one State or country be of any avail in another over which an air-ship may pass or into which it may descend?
That it should seems demanded in the United States (in the absence of federal legislation) by the principle of free trade between the States.14 From a broader point of view, it is required by the increasing solidarity of the world, proceeding from greater uniformity of political structure and a common standard of civilization, supported by so many international agreements and gatherings of an ecumenical character, and vivified by close and rapid commercial intercourse. Such a license might not and probably should not be accorded universal authority, but it certainly should, under a proper convention, be accepted as prima facie evidence that the voyage is a lawful one.
In securing such an effect for it nothing would be more helpful than the requirement by the government from which it emanates that its issue shall be conditioned on the filing of a proper indemnity bond for the benefit of whom it may concern.
Such an obligation, with a sufficient surety, lodged in a public office, would afford an easy means of redress to foreigners as well as citizens of the country who might suffer damage by reason of occurrences incident to the voyage or voyages covered by the license. It would be of most service to the public were such a bond to hold for all voyages which the person licensed might take in the future in the ship which he was licensed to sail.
Another mode of attaining the same result would be to compel the owners of each air-ship to take out a blanket policy of accident insurance, covering all injuries occasioned by the use of the ship, and authorizing the parties injured to bring suit upon it in the name of the insured but for their own benefit.
14 Such a policy would be in accord with the general trend of our State legislation with respect to interstate automobile trips. The license from one State is commonly recognized in another as sufficient for a certain number of hours or days. Air-ship voyages will always be short.
It should also be provided by statute or treaty that air-ships should carry the flag of their nation, and each its own number, corresponding to that in its official registry. The project of an international code of aviation (Règlement sur le Régime Juridique des Aérostats), reported by M. Fauchille to the Institute of International Law in 1902, looks in this direction.
Might not treaties and statutes be also desirable prescribing a mode of indicating where a landing was permitted or prohibited ? If, for instance, a red flag were made the sign of prohibition, it might fairly be provided that to land in the face of such a warning should subject the aviator to an action for double damages, enforceable by his arrest.
There have already been instances of shooting at balloons in mere wantonness. Such assaults would no doubt be cognizable by the courts of the country from which the fire-arms were discharged. Should they result in death to an aëronaut, no reason is perceived why that event should not be deemed to have occurred in the country over which he was floating.
For like reasons, should bombs be thrown from an air-ship with the purpose of wrecking property on land, the offense of throwing might by possibility be justiciable in one jurisdiction and that of damaging property in another.
In the Fauchille project, it was proposed (Art. 15) to make a prosecution for such offenses lie only in the country to which the airship might belong. This would secure unity of procedure at the expense of justice.
Another point demanding official treatment is the character of a homicide or personal injury caused by an aëronaut in the course of some manquvre intended to save his own life. That he could not intentionally take another's life for that purpose is established.15 But may he not hazard taking it, though hoping to avoid such a consequence ? If in taking such a voyage he is doing a lawful act, the law of self-preservation speaks loudly in his favor.1
15 Regina r. Dudley, (L. R.) 14 Q. B. D. 273. 16 See Morris v. Platt, 32 Conn. Reports, 75.
It is obvious that aviation (including in this term the use of the Zeppelin type of air-ship), if perfected, may be productive of great public benefits.
It helps to shorten the time and limit the expense of transit from one point to another. It offers a cheap and formidable engine of war both by sea and land. It serves to train men in presence of mind, in fortitude, courage, persistence.
It gratifies also the natural love for excitement and adventure. The North pole has been discovered. The center of Africa has become well known. What is left for ardent and ambitious spirits who would do something new and original, except to conquer the air ?
They are fast conquering it.
Gasoline, a by-product of petroleum once thought valueless, and the electric spark, with their high power out of little weight, have made it possible, at least, for man to fly like a bird.
But he can not descend as lightly. He must bear along with him an intricate and fragile apparatus which makes him a menace to the safety of whatever he passes over.
To harmonize the aëronaut's rights with those of other men and of foreign lands over which he may take his course, demands not only adequate local legislation but adequate international agreements. Professor Meili of Zürich, the author of Das Luftschiff im internen Recht und Völkerrecht, in a recent address before the Internationale l'ereinigung für vergleichende Rechtsuissenschaft, etc., of Berlin, has strongly advocated the convening, after due preparation and consultation, of an international conference for this purpose. It is certainly quite as much needed as that held in 1906 to regulate the international bearings of wireless telegraphy,
Such a body, to be of the greatest use, should devise more than one project of a treatv.
There are subjects involved on which all civilized nations could be expected to agree. There are also those on which they would be sure to differ. There are many regulations for times of peace which could be observed in all and consented to by all without serious difficulty. There are, on the contrary, few regulations for times of war
which would meet with universal favor. England would be apt to stand for one line of policy; France and Germany for another.
It is full time to make some attempt in this direction.
During the siege of Paris in 1870, a balloon went from there to Christiania, across the North sea, in fifteen hours. Count Zeppelin's dirigible air-ship can carry a full company of soldiers and formidable
France has adopted the policy of collecting a duty of a hundred and twenty dollars on every balloon of average size coming down on her territory. The new project of a Swiss commercial code, published in 1903, declares that whoever wilfully endangers the prosecution of an air-ship voyage so as to put human life in peril shall be subject to imprisonment. Particular regulations of similar kinds will multiply fast, and each makes it more difficult to negotiate a common rule by treaty.
The holding of an official international congress to consider the law of the air-ship is rendered both more easy and more difficult by the unofficial international conferences of aëronauts of which several have already been held, and the next is to meet at Bordeaux in 1910. The organization constituted by these and known as the Aëronautic Federation, has shown that for such matters as the regulation of international aviation contests for prizes it is easy and practicable for those of different nations to take concerted action,
Its composition, on the other hand, has been such as to make the promotion of the interests of aëronauts an object of more prominence than the protection of those of the public generally.
A public congress called to consider this particular subject alone can probably deal more intelligently with the question of the legitimate use of the air-ship in war, than one called, like the two Peace Conferences at the Hague, to consider many different subjects. It would also be less affected by sentimental considerations. The Ilagie Declaration of 1907, extended to the close of the next Peace Conference a prohibition of the discharge of projectiles and explosives from balloons or by other analogous methods. Though the Declaration was ratified by the United States in 1908, the other great powers stand aloof, and several of them voted against it when