ABSTRACTS OF THESES SUBMITTED TO THE McGILL
INSTITUTE OF AIR AND SPACE LAW, 1962
EDITOR’s NOTE: The following are abstracts of some of the theses submitted in 1962
to the Institute of Air and Space Law of McGill University. These abstracts are being
published in order to inform readers of research materials available in the law library
which would otherwise not be known. Some of the theses are available on microfilm or
may be borrowed through inter-library loan.
I. Property Rights in Airspace
Yehuda Abramovitch
Disputes between landowners and aviation create a fundamental problem
in the acceptance of progress towards the space age. Aerial navigation has
brought about numerous theories embracing the nature and extent of private
rights above the land. In aviation cases, no court has held that a landowner
owns the airspace to an indefinite extent. In practice, a landowner has the
right of effective use and enjoyment of his property; airspace can then be used,
so long as flights do not substantially interfere therewith.
The subject of this thesis is developed first by a discussion of the Latin
maxim Cujus est solum ejus usque ad coelum and its application to the right of a
person to navigate an aircraft in the airspace over privately-owned land.
Secondly, the author discusses the various legal theories which have emerged
respecting the use of airspace for aerial navigation, such as the theory of the
right of a landowner to the unrestricted use of the airspace over his land, subject
to an easement or privilege, the zone theory and the trespass and nuisance
theories. These theories are peculiar to and are dealt with under the Common
Law of England and the United States. The author adds a short discussion
in Part III of the landowner’s rights under the Civil Law.
Thirdly, the author deals with the subject of interference with the rights
of property owners in the neighborhood of airports by the creation of airport
noise, mostly associated with aircraft landing and taking off and engine noise
on the airport itself.
Fourthly, there is a short discussion of obstructions to aerial navigation
erected by property owners in the vicinity of airports and the right of those
conducting aerial navigation to obtain court orders for their removal.
Fifthly, the author deals with methods designed to prevent airport and
community disputes.
McGILL LAW JOURNAL
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II. Contractual Limitation of Servants’ Liability in Air Carriage
Geoffrey N. Pratt
The purpose of this thesis is to discover whether a servant or agent of an
air carrier may take advantage of provisions limiting or excluding the liability
of himself or the carrier in contracts of air carriage. The study is restricted
to a discussion of the Warsaw Convention which governs international con-
tracts of carriage and of English and American law which govern domestic
and non-Warsaw international carriage.
The chapter on English law contains an examination of the privity of
contract doctrine which, inter alia, prevents a person from relying upon a
provision for his benefit in a contract to which he is not a party.
The chapter on American law contains an examination of the tariff system
and before tackling the main problem, endeavours to find out to what extent
an air carrier may limit or exclude his own liability.
The problem is considered important for the reason that unless the carrier’s
servants and agents are protected by the limitation provisions in the contracts
of carriage, their purpose will be clearly defeated. It is shown briefly that
the purposes behind and the reasons for limitation of liability apply to the
servants and agents just as much as to the carrier and that if they are not covered
by them, the effect, as far as the carrier is concerned, is to deprive the limitation
of his liability of all efficacy unless he is the actual wrongdoer, a comparatively
rare occurrence nowadays.
III. Choice of Law in Contracts of International Carriage by Air
Peter H. Sand
The thesis deals with a problem of Conflict of Laws, namely choice of the
law applicable to contracts of international carriage by air. Since each inter-
national carriage ex definitione has contacts with at least two different national
laws, conflicts are frequent.
1. The Warsaw Convention of 1929 left a number of cases unsettled, and
contains important gaps.
2. The transformation and translation of the Convention into 57 national
legal systems created additional conflicts.
3. National courts are giving conflicting interpretations of the Convention.
4. Supplementary treaties, such as the Hague Protocol of 1955, and the
Guadalajara Convention of 1961, created supplementary conflicts.
5. The uniform “Conditions of Contract” of the International Air Transport
Association do not, and indeed cannot, solve the problem of choice of law.
6. National courts tend to apply their own national law (lex fori) to most
cases.
No. 2]
CASE AND COMMENT
7. International rules on choice of law in contracts of international carriage
by air would be desirable. These rules should be determined rationally, on
the basis of legal policy considerations.
The thesis is based on a comparative study of 120 cases from 10 countries,
and of their respective contacts with various national laws.
IV. Piracy and Air Law
Maria Luisa Villamin
Successive waves of hijacking (forcible seizure) of aircraft have brought
the attention of the whole world to the fact that the newest form of transporta-
tion has been hit by “air-age piracy”.
This study traces the development of the effort to codify the law on piracy
jure gentium (by law of nations) as early as 1925 and the gradual incorporation
of aircraft into its concept. For this purpose the Matsuda Draft Provisions
for the Suppression of Piracy, the Harvard Research Draft Convention on
Piracy and the Geneva Convention on the High Seas are principally dealt with
to find out if the maritime concept of piracy jure gentium is applicable to that
by aircraft, taking into consideration the nature and speed of the latter and
the Air Law on the subject of sovereignty over the airspace. Whether hijacking
is also included in the concept of piracy jure gentium under the above-mentioned
Conventions is also discussed. The position of existing Air Law on the subject
of piracy jure gentium by aircraft and piracy by analogy (hijacking) is stated.
V. Air Carriers’ Liability in Australia
Martin Anthony Bradley
The thesis describes Australian law relating to air carriers’ liability in
respect of persons, cargo and baggage carried by them within Australia.
That law consists of the common law of carriers and Part IV of the Com-
monwealth Civil Aviation (Carriers’ Liability) Act 1959. Part IV of the Act
applies to certain classes of carriage by air. Those classes of carriage by air to
which that Part does not apply are governed by the common law of carriers.
Consequently in Chapter II the scope of Part IV is delimited.
Part II of the thesis describes the common law of carriers. It first deals
with the classification of carriers at common law and then discusses the rules
of law appropriate to each class and the liabilities of the carrier at common
law in relation to the passengers, baggage and cargo carried by him.
In Part III of the thesis, the substantive provisions contained in Part IV of
the Act are discussed in detail, the main emphasis being on the liability of
the carrier for death or injury of passengers.
