Aviation Law in Australia
| DOI | 10.1177/0067205X6500100203 |
| Published date | 01 June 1965 |
| Date | 01 June 1965 |
| Author | J. E. Richardson |
| Subject Matter | Article |
AVIATION LAW
IN
AUSTRALIA
By J. E. RICHARDSON*
The primary purpose
of
this article is
to
discuss the Australian statutory
law applying
to
civil aviation. There will also be some consideration
of
one or two unresolved questions involving the application
of
com-
mon law rules, selected
not
only because
of
their intrinsic interest, but
also because they are partly affected by Federal and State Acts
of
Parlia-
ment.
Part
Ideals with them.
Part
II
of
the article is given over to an
examination
of
the control and regulation
of
air navigation in Australia,
asubject made complex by adivision
of
constitutional legislative power
between the Commonwealth and the States that does
not
allow the
Commonwealth to assume complete legal responsibility for domestic
civil aviation.
In
Part
III
there will be adescription
of
the structure and
regulation
of
the Australian air transport industry. Here the Common-
wealth has played arole entirely unique in the world aviation scene in
which, through aseries
of
Acts
of
Parliament and executive agreements,
it has maintained in 'regulated competition' two,
and
only two, major
domestic air carriers. The final part
of
this article,
Part
IV, will be devoted
to
the statutory regulation
of
the legal position
of
an
air carrier operating
in Australia, so far achieved mainly by the application
of
the principles
of
two international private law multilateral agreements, the Warsaw
and
Rome Conventions, to Australian domestic aviation. This part
also supplements the analysis
of
the common law problems discussed
in Part I.
An
appendix lists Federal and State Acts directly relating to civil
aviation.
I -
AIRCRAFT
AND THE COMMON
LAW
The flight
of
aircraft has raised many interesting questions in distinctive
areas
of
common law, including contract, tort, crime, property and
conflict
of
laws. Some, as will be seen, have been determined by the
passing
of
legislation
but
others remain for further consideration. The
questions are not for the most
part
new
but
they assume anew significance
by reason
of
the development and exploitation
of
aircraft as ameans
of
transport.
Two matters only will be discussed-private property rights in the
airspace and the application
of
the doctrine
of
res ipsa loquitur
to
air-
craft. Both are substantially affected by Federal and State statute law.
*B.A., LL.M. (Melb.), Barrister and Solicitor; Robert Garran Professor
of
Law
and Dean
of
the Faculty
of
Law, School
of
General Studies, Australian National
University.
242
JUNE 1965] Aviation Law
in
Australia 243
Private property rights in the airspace
All too frequently one hears that the question
of
alandowner's rights
in the airspace above his land is exhausted by the application
of
the
maxim cujus est solum ejus est usque ad coelum, which may be freely
translated as meaning that 'he who owns the soil owns all
that
lies above
it '. Since the law everywhere seems to place air as
an
element in the
category
of
res omnium communis because
of
its peculiar properties,
such as the capacity to disperse itself freely, the maxim must be taken
to refer to the column
of
space above the surface
of
the land.
If
it
is
literally applied any invasion
of
the superincumbent airspace by air-
craft, however ephemeral, is atrespass actionable per se unless the
maxim
de
minimus non curat lex should be successfully invoked. Some
English decisions support this view and some do not,
but
none have
involved the direct issue
of
the flight
of
an
aircraft. They have been
concerned instead with such matters as overhanging parts
of
buildings
and branches
of
trees, telephone wires, trespassing animals and the
occasional rifle shot, that is to say, matters
that
have involved structures
built
on
the land itself
or
the direct consequences
of
the use
of
land.
Flights by aircraft do
not
come within either category.
United States cases
In
1946
in United States
v.
Causby1the Supreme Court
of
the United
States rejected cujus est solum as being
part
of
United States law.
According to the Court, the maxim had no place in the modern world.2
After repudiating the maxim the Court said, however,
that
'
if
the land-
owner is to have full enjoyment
of
the land, he must have exclusive
control
of
the imnlediate reaches
of
the enveloping atmosphere'. Then
it went further and
said-'
The landowner owns
at
least as much
of
the
space above the ground as he can occupy
or
use in connection with the
land. . . . The superadjacent airspace
at
this low altitude is so close
to the land that continuous invasions
of
it affect the use
of
the surface
of
the land itself.'3
In
this case United States military aircraft, in taking
off and landing from
an
airport leased by the United States,
flew
over the
plaintiffs' chicken farm
at
heights as low as
83
feet interfering with the
enjoyment
of
the property as ahome and abusiness. The Court held
that
the flights by the Federally owned aircraft amounted to ataking
of
property without compensation contrary to the fifth amendment
to
1(1946)
328
U.S. 256;
[1946J
U.S. Av.R. 235.
2(1946)
328
U.S. 256, 260-261; [1946J U.S. Av.R. 235, 238-239. The
Court
also
added-'
The
air
is apublic highway, as Congress has declared. Were
that
not
true,
every trans-continental flight would subject the operator
to
countless trespass suits.
Common
sense revolts
at
the idea.
To
recognize such private claims
to
the airspace
would clog these highways, seriously interfere with their control
and
development
in
the public interest,
and
transfer into private ownership
that
to
which only the public
has a
just
claim.'
:I (1946)
328
U.S. 256, 264-265; [1946J U.S. Av.R. 235, 241-242.
244 Federal Law Review [VOLUME 1
the United States Constitution4•
It
seems that the Court may have
been influenced in finding for ownership
of
the immediate airspace
above land by the fact that in
1946
the United States could
110t
be sued
in tort. The only possible recovery for property damage, as in the Causby
case, depended
on
establishing
an
unconstitutional taking
of
private
property. The Causby case was applied by the Supreme Court in Griggs
v.
County
of
AlleghenyS, acase involving rather similar facts. Aircraft
taking off and landing
at
an
airport owned by the County
flew
within
11
feet
of
the top
of
the plaintiff's house situated
at
the end
of
arunway.
The Court held that the County
had
acquired
an
easement over the
plaintiff's land for which it should pay compensation in accordance
with the fourteenth amendment
to
the United States Constitution.6
The constitutional considerations to the fore in both the United States
cases do not,
of
course, have any counterpart in the Federal and State
Constitutions
of
Australia.
Canadian case
In
Canada in
1953
the Exchequer Court held in Lacroix
v.
The Queen7
that
the subjacent landowner had aright to make use
of
the airspace
above him as, for example, by putting up buildings, but that air
and
airspace \vere
not
susceptible
of
ownership, falling instead in the class
of
res omnium communis. Accordingly, alandowner was
not
deprived
of
any property right in the establishment
of
aflightway in the airspace
over his land. On this view asuit against the operator
of
an
aircraft
by asubjacent landowner would normally have to be based
on
nuisance.
English cases
In
1815
in England in the case
of
Pickering
v.
Rudd8Lord Ellenborough
considered whether the plaintiff could maintain asuit for trespass on
the ground that the defendant had nailed aboard on his house that
projected from the wall so that it overhung the plaintiff's garden. The
plaintiff sued on the basis
of
the cujus est solum maxim, but the Lord
Chief Justice rejected the argument by
saying-
But I
am
by no means prepared
to
say,
that
firing across afield
in
vacuo, no part
of
the contents touching it, amounts to aclausum
4The
:fifth
amendment, so far as relevant
reads-'
No
person shall
...
be deprived
of
life, liberty,
or
property, without due process
of
law;
nor
shall private property
be
taken for public use, without
just
compensation.
'I
5(1962) 369 U.S. 84; [1962] U.S. Av.R. 1.
6Section 1
of
the
amendment, so far as relevant,
reads-'
No
State shall
make
or
enforce any law which shall abridge the privileges
or
immunities
of
citizens
of
the
United States;
nor
shall any State deprive
any
person
of
life, liberty,
or
property,
without due process
of
law . . . '
7[1954] Exchequer Ct.
R.
69; [1954] U.S. &C. Av.R. 259; [1954J 4
D.L.R.
470.
See also Mann
v.
Saulnier [1959]
19
D.L.R.
(2d) 130.
8(1815) 4Camp. 219;
171
E.R.
70.
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