Jamaica needs urgent aviation law reform

Wainsworth Small, Contributor

This article concerns the origins of aviation law, the legal impact aviation has on the general public, and the possibilities for Jamaica.

The first plane to fly in Jamaican skies was flown by Jesse Seligman, an American aviator, on December 21, 1911, only eight years after the Wright brothers made history with the first airplane flight the world had ever seen. Yes! Jamaica was involved in aviation that early. Yet, Jamaica, today, lags behind in so many important areas of aviation.

In Jamaica, legislation has focused on aviation in terms of the International Civil Aviation Organisation (ICAO) and their publications. Little attention has been paid to the public and aviation's impact on their lives. The Jamaica Civil Aviation Regulation captures some of the industry's international standards and recommended practices in its legal framework, but several standards and recommended practices need attention.

ORIGINS

Admiralty Law is a distinct body of law which governs maritime matters. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans. It deals with matters including marine commerce, marine navigation, shipping, sailors, and the transportation of passengers and goods by sea.

Aviation Law has taken its roots from Admiralty Law which is one of the reasons aircraft are called 'ships', much as sailing vessels are called ships. After the first flight of a heavier-than-air aircraft by the Wright Brothers at Kitty Hawk in 1903, aviation law has been developed following the form of Maritime Law. Many of the terms used in aviation law are taken from their counterparts in maritime law. Aviation Law is the branch of law that concerns flight, air travel, and associated legal and business concerns. There are areas of overlap with admiralty law and, in many cases, aviation law is considered a matter of international law due to the nature of air travel, but there are domestic concerns as well. The business aspect of airlines and their regulation also fall under aviation law.

UNITED STATES V CAUSBY

United States v Causby (1946) was the first case concerning aviation to go to the United States Supreme Court. It was a significant event as the court decided that the ancient common-law doctrine of ad coelum had no legal effect in modern times. Under this common-law doctrine, persons who owned real property owned it from the earth's core to the heavens. Therefore, real estate, traditionally, has included all rights to water, oil, gas, and other minerals underground, and over.

In that case, Causby sued the United States for trespassing on his land, complaining specifically about how low-flying military planes caused the plaintiffs' chickens to jump up against the side of the chicken coop and die.

The plaintiffs sued the government, arguing that they were entitled to compensation under the takings clause (clause that prohibits government from taking private property for public use, without just compensation) of the Fifth Amendment.

The United States Supreme Court decided that this doctrine has no place in the modern world, at least as far as air rights were concerned. The court's decision, authored by Justice William O. Douglas, could have resolved the case on a narrow ground by simply holding that there was a taking of land because the government's flights affected the land. However, Justice Douglas went much further and articulated his opinion on what airspace landowners do and do not own.

He expressed the view that if the landowner is to have full enjoyment of their land, they must have exclusive control of the immediate reaches of the all-encompassing atmosphere. Or else, buildings could not be erected, trees could not be planted, and even fences could not be run. Thus, a landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land, and invasions of that airspace are in the same category as invasions of the surface. The Court thereby laid the foundation of airspace law.

JAMAICA's CASE

In my opinion, the lack of legal awareness about aviation has denied the Jamaican public their legal rights. Non-travellers are not spared, for aviation impacts all lives in one way or another.

Ordinary people, including passengers, are often impacted unknowingly. A recent case in point is American Airline Flight AA331 that crashed in 2009 at the Norman Manley International Airport.

Questions such as:

1. Were the legal rights of passengers observed, i.e. was each passenger offered the correct legal attention /advice and not advice in the best interest of the tortfeasor/s

2. Was the legal fraternity within Jamaica cognisant of the rights of these passengers?

3. Is aviation law and management being taught at our institutions of higher learning?

If the answer to any of these questions is no, then arguably rights may have been abused.

In order to make real improvements, Jamaica needs drastic changes to its economic engines and, by extension, its legal structure. Just as manufacturing changed the US after the great depression from an economy dominated by agriculture, similarly many countries are today looking for more prosperous alternatives.

Aviation offers an excellent avenue for economic expansion. Jamaica should develop a legal and economic framework for this, and the starting point should be education. We can no longer afford to pretend that our institutions of higher learning sit at the pinnacle without fear of competition. As other economies have learned, and are learning, just about everything is now in competition on a global basis. Consequently, our institutions of higher learning should embrace the global challenge.

CONCLUSION

We cannot continue debating the future, but rather must begin now to make changes in our system of learning. We can do this by living what we teach. Whether we like it or not, we are living aviation, so let us teach it.

Wainsworth Small is an aviation consultant. Feedback may be sent to columns@gleanerjm.com.