AIR NAVIGATION BILL. [H.L.] (Hansard, 11 May 1920)

THE UNDER-SECRETARY or STATE FOR AIR (THE MARQUESS OF LONDON-DERRY)

My Lords, the Bill, the Second Reading of which I have the honour to propose to-day, is one for regulating the navigation of the air. The basis of the Bill is the Convention on Air Navigation which was signed in Paris last October. That Convention was presented to Parliament last year, and copies of the text are available to your Lordships in the usual manner. The Convention was signed by nearly all the States concerned. The total number of States, including our self-governing Dominions, is 30. An overwhelming proportion of civilised States have signed, and it is hoped that the remainder will be attracted to sign the convention also. It is further hoped that in the course of time the Convention will become the instrument for regulating aerial navigation throughout the world. The object of asking your Lordships to give this Bill a Second Reading is to enable His Majesty to ratify the Convention. The Convention has this unusual feature in it. that it establishes a permanent Com- 224 mission, sitting under the League of Nations, for the purpose of following aviation as it progresses, and enabling various amendments to be brought forward, so as to keep pace with aviation. Therefore these amendments are to be introduced into the Bill by means of Orders in Council, which will enable the law to be incorporated without requiring an Act of Parliament.

The introduction of a Bill of this description, I think your Lordships will agree, marks a great epoch in the history of this country. It shows the point to which the science of aviation has arrived. It certainly has reached a stage which none of us five years ago could ever have contemplated. The reason is that it has been discovered that the supremacy of the air is necessary to this country, and I think we can say that aviation was responsible for the defeat of the Central Empires in the war which happily terminated two years ago. But I think your Lordships will agree that certainly Service Aviation must continue, and that in future the Estimates will always be charged with a sum of money for this purpose; and it is only natural that when this Service is so obviously necessary in time of war, men's minds should turn to employing the potentialities of that Service for developing not only in time of war but in time of peace, and in utilising the air for the carriage of passengers and goods, and also, what is equally important, perfecting the communications between our great Dominions which lie across the sea.

There are many difficulties which confront the Air Ministry in their desire to establish civil aviation on a firm basis in this country. In the first place, this country is not so well adapted as other countries for the substitution of the present methods of travel and transport by the use of the air. The distances involved in the carriage of letters and parcels from one point to another in the British Isles are not really long enough to demonstrate the advantages of the quicker means of transit. A letter posted in Glasgow at 10 o'clock at night is delivered in London by the first post, and the fact that an aeroplane can do that journey in a less period of time than occupied by a train, would be of no actual value; but the carriage of mails from this country even to Paris, to Madrid, to Rome, or other capitals of Europe by the air, would mean a great saving of time. The 225 service between Paris and London has shown very satisfactory results, and it is hoped that greater advantage will be taken of this service for the carriage of passengers and mails.

Naturally one fears, in an age of wonderful achievement such as this has been, that these numerous feats in aviation are rather inclined to be forgotten. But I think we should remember what has been done. Quite recently the figures of flying in Great Britain, and including the Continental services, are highly satisfactory. We can also remember that there has been an Atlantic flight in an airship, the R 34, and that there has been a flight across the Atlantic in an aeroplane, a Vickers-Vimy machine, by Captain Alcock and Captain Brown as they were then, and that a flight has been carried out from England to Australia, not of course in one machine and naturally not in one flight; and, further, that there has been a flight from Cairo to the Cape. I venture, therefore, to suggest to your Lordships that there has been immense activity in aviation, and that the progress which aviation has made is relatively astonishing.

The question of money is one which naturally has a great influence at all times, and especially at this moment when it is quite impossible for the Government to raise additional taxation for the purpose of assisting even this most important industry. We live at a time when the most rigid economy is an absolute necessity, and although the Government would gladly do all in their power to develope this science, still it is necessary that their desires in that direction should be reduced to an absolute minimum, owing to the financial position in which we necessarily find ourselves at this present moment. It must be realised that during the war an immense amount of money was spent in developing the Royal Air Force; no stone was left unturned to exploit every invention so as to render our power in the air supreme. We can feel satisfied that we did achieve this object, and it is our duty at this time to see that that position which the Royal Air Force won for us during the war is maintained in times of peace. There is no reason why it should not be maintained. There is no other country in the world which should be able to make greater progress in aviation than we can make here, and I need hardly say that all the energy and the good will of the Air 226 Ministry through the Department of Civil Aviation, which is presided over by Major-General Sir Frederick Sykes, whose record in the flying world is so well known, is being devoted to discovering the best methods for establishing on a firm and lasting basis a science containing potentialities which can supplement and compete with our present methods of transit and transport, to the benefit of the world.

It must be realised that, following a period of five years of stupendous and colossal activity in inventions and in production, it is obvious a reaction must ensue, and we are at this moment in that period of reaction, and by that I mean that a large number of those inventions which were made during the war have not been exploited to their fullest extent, and that accompanying these inventions it will be readily understood there has been a vast effort of production, which comprises thousands of machines, thousands of aero-engines, quantities of accessories and spare parts, which must necessarily mean a stagnation in the trade owing to a glut of the articles required.

It is only recently that the Disposal Board handed over to a company known as the Disposals Company large quantities of surplus machines, aero-engines, etc., for the sum of £1,000,000, plus 50 per cent. of any profits which the company may be able to make—a very satisfactory deal on both sides, and one on which the Government have every reason to congratulate themselves. I may take this opportunity of congratulating the Disposals Company on their enterprise in this matter. It is a further example of the courage and enterprise, and certainly of patriotism in this case, which has made this country what it is.

I have mentioned this case not only to acquaint you with what has been done in the direction of liquidating some of that vast expenditure which was necessarily incurred during the war, but of showing you at the same time the difficulties which the Government must face in their desire to do two things—first of all, to save the taxpayer every penny which it is possible to save him, and at the same time to keep in being those firms whose activities during the war have been devoted to the production of aircraft and the accessories required, so as to stimulate the inventive genius in aviation which exists in this country, and make it possible for those firms 227 to continue, by a remunerative production of what is required. While in this country we naturally are not in favour of any system of subsidies, still I feel sure that it will be with the consent of your Lordships that the Government should do all in their power to assist in whatever way they can those manufacturing firms whom it is essential for the progress of aviation to keep in being, and that those firms should receive those few orders—and they are few orders at the present moment—which the Government is enabled to give.

I have ventured to make a certain diversion in moving the Second Reading of this Bill so as to put before your Lordships as briefly as I possibly could the position in which aviation is at the present moment. But I must say one or two words about the Convention which I alluded to in the opening remarks of my speech. The central principles of the Convention are, first, the recognition of complete territorial sovereignty by each Power over the air space above its territory; and, secondly, subject to such sovereignty, a mutual undertaking in time of peace to accord freedom in innocent passage above its territory to the aircraft of other contracting States. The Convention was brought in first for regularising and facilitating the passage of aircraft from one country to another, and in order to carry out this freedom of passage the Convention provides for international rules for, first, registration of aircraft; second, general conditions for certificates of airworthiness; third, uniformity in log books; fourth, rules for navigating the air; fifth, qualifications for obtaining certificates as pilots and navigators; and, six, similarly of general principles as to Customs.

The provisions of the Convention are carried into effect in the Bill by Orders in Council. This is the usual method, and it coincides with and follows the existing stage of development of aviation. The Convention applies to inter-State flight, and it does not entirely bind us here as to our rules of flight within the British Isles. It is certainly advisable that our rules should conform to the world standard. Power is taken to apply the provisions of the Convention with such supplementary provisions as may appear necessary for the purpose.

In this Bill the existing Statutes of 1911 and 1919 are repealed because it becomes necessary to make provision for matters 228 outside the Convention, such as the regulation of aerodromes, detail-provisions for carrying out these matters, and also the question of giving certificates of air-worthiness upon which the Convention has only given a general direction.

The Bill does not apply to the British possessions, nor does it apply to any territory over which any of our British possessions are exercising a mandate. Thus the former German South-West Africa is controlled by South Africa; consequently it does not come within the ambit of this Bill. It is proposed, apart from that, to have one register for the whole of the remaining possessions of the Crown. The Convention authorises the continuance of what are known as "prohibited areas," which are areas in different parts of the world in which it is not permissible for aircraft to travel. These areas in Great Britain have been appreciably diminished owing to the qualifying permission of a height exceeding 6,000 feet—an aircraft is allowed to pass over a prohibited area at a height which exceeds 6,000 feet. The Bill takes special powers in cases of emergency, and permits the stoppage of civil flight throughout the whole of the United Kingdom in exactly the same manner as those flights were prohibited a few days before the outbreak of the late war. For the same reasons as applied then it was thought that we should have power in such circumstances to take possession of any aerodromes or landing ground with the running plants and machinery belonging to them.

To avoid all possibility of injustice the Bill provides for compensation, and the amounts are fixed under the principles laid down in the recent Acts dealing with the acquisition of land. The Bill also deals with municipal aerodromes, and it is proposed to give to local authorities the power to establish and maintain their own local aerodromes. At the present moment as the law stands, municipalities are not empowered to expend any money from the rates on such purposes, but the Ministry has been made aware that there is a desire on the part of certain corporations to have their own aerodromes, and notably both Edinburgh and Sheffield are now promoting private Bills in Parliament with that purpose in view. The view of the Air Council is that the establishment of civil aerodromes is most beneficial in more ways than one, and also that these aerodromes should be 229 well furnished and equipped. The reasons for this are, first of all, that the landing of aviators is facilitated—because one contemplates that aviation will increase and multiply in this country and it is most important that there should be landing grounds of a safe and suitable character. The second reason is that the risks of forced landings will be diminished, and the third is that facilities will be provided for the development of aerial transport purposes. It is not proposed to give to the local authorities power to acquire land for this purpose except by voluntary agreement, and it is hoped that many of the more important towns will avail themselves of these powers for the establishment of aerodromes of their own.

The question of trespass, nuisance, and damage by aeroplanes is a very important matter and one which will have to be most carefully considered in the Committee stage. As the Convention allows aircraft to pass into British territory the Air Ministry has felt that it is necessary at this time to define the principles applicable rather than leave the law as it is at present in regard to trespass in a very nebulous condition. It is a curious fact in that connection that in 1815 Lord Ellenboreugh, who was Lord Chief Justice at the time, raised the question whether an aeronaut would be liable for an action of trespass at the suit of any occupier of a field over which his balloon passed in the course of his voyage. It was assumed that the learned Judge was contemplating the use which Napoleon made of balloons in the war against Austria a few years before. But the learned Judge took no further steps to have his question answered, and it has been left to us at the present moment, a hundred years after, to provide a definition.

This subject has been closely investigated by a very strong Civil Aerial Transport Committee which reported in 1918, composed of representatives of the fighting Services, of the aircraft industry, and of general representatives. They strongly urged that the existing doubt as to the rights of persons injured by aircraft should be cleared up by the formulation of certain definite principles. The Law Officers of the Crown have concurred in this view. The provision we are now proposing is based upon the Committee's recommendations. Shortly stated, it amounts to this; at present English law recognises the doctrine that ownership of the soil carries with it 230 ownership of the air above it to an indefinite distance, usually termed "usque ad coelum." Consequently upon existing principles the liability of aircraft for damage or annoyance is closely connected with the question whether a given aircraft was—no matter at what altitude—in the private column of air superincumbent upon the private property of a subject. Also the Civil Aerial Transport Committee report that under the present law it is possible that the Courts might look upon aircraft to be within the class of those things which the owner keeps or uses at his own risk and peril.

We propose to reconcile the rights of the private owner of the land in the super-incumbent air with the practical necessities of civil aviation by laying down the broad principle that no action shall lie in that respect for trespass or nuisance simply for the mere fact of aerial flight through such column of air, but where damage has been done to any persons on the ground the owner of the offending aircraft shall be liable for the damage without forcing the injured person to prove negligence or any other cause, and that the only valid defence shall be proof of contributory negligence. It does not require much explanation to show that in many cases persons on the ground would never be able to prove negligence against an aircraft which is sailing overhead at some 6,000 feet, while on the question of contributory negligence there equally seems no reason why, if the person could have avoided the injury to himself by getting out the way, he should not be liable to be met by the plea of contributory negligence, exactly in the same way as lie would be in the case of damage done to him by a motor car. On a general survey of the Bill it is only possible to mention the provisions in general terms, but I think in Committee these matters should be very carefully gone into, and I hope I may be able to satisfy your Lordships that the provisions which we have put in the Bill are satisfactory in every way.

This brings me to the question of salvage. The flight of aircraft over the sea and the liability to occasional distress has brought up the question of the rewards to salvors. At the present time an aircraft is not a ship, and the law of salvage does not apply to aircraft. The Convention recognised that this was a point to be dealt with, and have laid down that the principles of maritime law are to apply in the absence 231 of any agreement to the contrary. Our salvage law is a special law and the growth of a long period, and while its principles are applicable to aircraft its details in many cases are widely different. However, after taking the best advice on the subject we have come to the conclusion that the only workable method of applying this principle of the Convention is to lay down the general principle of similarity and to cause an Order in Council to be prepared showing the detailed changes which are to be made in carrying it out. I should, however, mention one point specially, and that is with regard to His Majesty's ships. It is proposed to put the Royal Aircraft in exactly the same position as the ships in the Navy. That is under Section 557 of the Merchant Shipping Act of 1894, which lays down that where salvage services are rendered to any ship belonging to His Majesty or by the Commander or crew thereof, no claim should be allowed for damage thereby caused to the ship or her stores or for any other expense or loss sustained by His Majesty by reason of that service; and also that no claims for salvage services by the commander or crew should be finally adjudicated upon without the consent of the Admiralty. We intend to put His Majesty's Aircraft in the same position on the long-standing principle that salvage services carried out by public servants should, as in the case of the Navy, not be the subject of compensation.

There is a further point included in the Bill on the question of the investigation of accidents, and I feel sure that it is hardly necessary to lay before your Lordships the necessity for powers for the proper investigation of aerial accidents. Everyone is familiar with the large number of railway accidents that occurred in the early stages of the railways of this country, and although, of course, the number of persons transported by aircraft bears no relation to that carried on railways even 70 years ago, there is a greater risk of fatal results attending the whole of the passengers in an aircraft than to all the passengers in a railway train. The first essential, therefore, is to have some proper authority to find out exactly the cause of each accident, so far as it is discoverable, with a view to obtaining the same degree of safety as is possessed by railway administration to-day. A second reason is that comparative safety is as essential to the development of civil aviation as a 232 recognised method of public transport of passengers. There have been 28 civil accidents between May 1, 1919, and March 31 last, and the experience gained in investigating them has been of great value. It is, however, essential, from the fact that aircraft usually crash in private property, to have right of access to such property, to investigate the débris, and to prevent the machine being removed pending the inquiry. It is considered necessary to take power to hold a formal investigation of the same kind as is conferred on the Board of Trade under the Regulation of Railways Act, 1871.

There is one small provision which affects patent law. Before this Convention, it has happened that a British machine flying through a foreign country has been detained for as long a period as three months on the plea that the aircraft in question, or some mechanism in it, infringed a patent taken out in that foreign country. It was obvious that this would militate severely against the success of transport by aircraft, and the Paris Convention, to meet this difficulty, inserted a provision that if such an aircraft owner would give adequate security he should be allowed to leave that country, instead of being the victim of an injunction which would mean that he would have to remain in the country for an indefinite time. This is a provision which, owing to the geographical position of Great Britain, is a very important one; because I think it is obvious that British aircraft are more likely to fly in foreign countries than foreign aircraft are likely to fly in this country; so this provision of enabling a pilot to give adequate security, if he has infringed a patent instead of being, as I have said, the victim of an injunction and remaining in this country, is a very important one. The chief practical change involved in the law is that the Courts could no longer grant an injunction to prevent the further flight of a foreign aircraft in this country on this ground.

I may mention a certain matter which will be of interest from the point of view of criminal jurisdiction—namely, the question of crimes, or offences committed on board a British aircraft, either over the high seas or over a foreign country. It will be remembered that in the case of an offence committed on the high seas such a case is triable under British law, and this provision proposes to put aircraft 233 flying over the seas in exactly the same position. Flying over a foreign country for an offence committed on aircraft, that offence is naturally triable in a foreign country, but it is also to be made triable in this country; because I think your Lordships will see that an aircraft might fly over some small country and that country might not even be aware of the offence having been committed, consequently this important provision has been inserted in the Bill.

In conclusion, I should like to draw your attention to the existence of this Convention. It really marks a great epoch, and I am sure you will agree with me that it is highly satisfactory that this Convention has been enacted in all its bearings, as far as it could possibly be done, for the benefit of aviation as a whole, and that it has been done within eighteen months of the conclusion of the war. I think your Lordships will realise that in other circumstances a Convention of this kind, which includes so many of the countries all over the world, would have taken a considerable time to enact so as to co-ordinate all those particular differences of opinion which have before existed and which we hope have been put right by the Convention. I feel sure that your Lordships will consider this Bill, and I trust that I shall be allowed to take the Second Reading of it to-day.