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Aviation History
1959
1959 - 1372.PDF
FLIGHT, 15 May 1959 661 Ten months from now the sight of B.E.A.'s Vanguards at L.A.P.—in the new Corporation "red wing" markings, of course—will be commonplace. A foretaste was provided on May 6 when G-APEA, seen here, departed thence on a Vickers sales and demonstration mission to Hamburg's "overseas day." Full test instrumentation and a flight test team were carried: the aircraft reached a 440 m.p.h. cruising speed each way AIR COMMERCE Bermuda, Tokyo and all That B.O.A.C. will get its foreign air carrier permit from the C.A.B.to include Tokyo as an intermediate traffic point on flights to the United States. Moreover, the United States has not yetbroken any agreements, nor is it likely that she will do so. HOW is it possible to be so confident, when, at the momentof writing, the GA.B.'s final decision is not yet known?The Minister, in the House on May 6, shared this con- fidence and gave as his reason the existence of a valid internationalagreement with the U.S. Is that all there is to it? And, if so, has the C.A.B. been wasting everybody's time? Answers: "Yes" to the first question. "No" to the second. Why the Permit will be Issued. Flight has already outlinedthe procedure whereby Tokyo was added to Route 7 under the IV (b) procedure of the famous Bermuda Agreement.1 The magicof this Agreement is that the language is calculated to send lawyers crazy in a search for precise meanings; and yet it has proved aworkable device as between two nations who, behind the scenes, understand each other very well. The U.S. added Tokyo to one of their routes in October 1947,and we added it to one of ours in January 1957. If either nation had found that such an addition conflicted with the basic prin-ciples of the agreement so that the interests of its own carriers were prejudiced, then IV(b) procedure gives that nation the chanceto protest and adjust the situation by negotiation. No squawks emerged for the public record, so Tokyo wasproperly added to Route 7; this is not disputed by the State Department or by the C.A.B.Although the Bermuda Agreement is an instrument of inter- national law, i.e., one solely affecting relations between twosovereign States, it nevertheless contains references to the municipal law of each state. For example, carriers must obey allapplicable local laws and obtain any necessary permits. This is where the fun starts. In granting permits to foreign air carriers for carriage of thepublic, the President is supreme and not the C.A.B.2 The C.A.B. could make an adverse finding; nevertheless the President can,and in the present case almost certainly will, overrule the Board. Role of the C.A.B. in Foreign Air Carrier Permits. Althoughthe Board is powerless to interfere with international air trans- port agreements once they have been concluded by the StateDepartment on the authority of the President, it has a most important part to play in the negotiation of the agreement as wellas in the issue of the subsequent permit. Section 802 of the Federal Aviation Act of 1958 calls upon theSecretary of State to advise and consult with the C.A.B. (among others) concerning the negotiation of this type of agreement.Similar arrangements were in force at the time of the Bermuda Agreement (when indeed, the then chairman of the Board playeda leading role) and when Tokyo was added. The Board may issue a foreign air carrier permit if it finds thatthe carrier is "fit, willing and able" and that the "transportation will be in the public interest" (Sect. 402). But the issue or denialof such a permit is "subject to the approval of the President" (Sect. 801) and must be done "consistently with any obligation By HAROLD CAPLAN (Lecturer in Air Law, City of London College) assumed by the United States in any treaty, convention or agree-ment that may be in force . . ." (Sect. 1102). The existence of the Bermuda Agreement has been recognized by the C.A.B. as avalid factor "in the public interest" in previous cases,3 and was urged by counsel for the Board's Bureau of Air Operations in thepresent hearings.4 A previous Board chairman admitted: "It does begin to looka little—you might say—empty to have a public hearing and the formality of making a finding of a public interest after you havemade an international agreement which pretty much covers the general basic problem of the cases."5 The C.A.B. has two bites at the cherry, once in the negotiationof the agreements and next in the grant of the foreign air carrier permit. But this enables it to perform the important function ofpublicly reviewing acts of the Executive in accordance with American law—which reflects the concern of Congress forregulated competition based on sound economics. Did B.O.A.C. Apply in Good Time? At first sight it seemsreasonable to apply in October for a permit not needed till the following May. Especially when it is so certain that the permitmust ultimately be issued and "without undue delay."6 But this is to forget that under American procedure any interested partymay file objections and this inevitably delays hearings. If Her Majesty's Government were sufficiently certain of the futureto add Tokyo to the routes in January 1957 it is difficult to see why the application for a foreign air carrier permit should be delayeda further 21 months. It is not sufficient to assert we were not ready. The Bermuda Agreement specifically says that the"agreed services may be inaugurated immediately or at a later date at the option of the Contracting Party to whom the rights aregranted." The C.A.B. issued the Airwork permit before the airline had even purchased the necessary aircraft. The permitenabled it to proceed with the purchase. The Merits of Northwest's Objections. Newspaper reportssuggest that Northwest's objections were based on (a) the propor- tion of Fifth Freedom traffic involved and (b) the extent ofdiversion of traffic from American carriers. Although these are valid matters to be ventilated under American procedure theyappear to be irrelevant in connection with the issue of a permit in accordance with the Agreement. The Bermuda Agreement isrenowned for the fact that these matters need not be determined in advance but may be (and are) dealt with by periodic retro-spective review and consultation between the Governments. Reference* • -••..»••• (1) Flight leading article. May 1. 1959. (2) C & S Airlines v Waterman Corp, 333 US 103. • ; . ." • (3) For example, the Airwork case, 18 C.A.B. 542 at 550. (4) The Times, April 29, 1959. (5) Senate Hearings on Executive A, Committee on Foreign Relations, February 20. 1945, p. 54. (6) Article 2, Appendix 1, Bermuda Agreement. . ¥
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