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MY DEAR MR. SECRETARY: I refer to your request for my views concerning the validity of existing commercial aviation agreements to which the United States is a party.

The agreements in question were discussed by the President in his message to the Congress of June 11, 1946, urging ratification of the Convention on International Civil Aviation. I refer particularly to the following statement.

"The Convention makes no attempt to cover controversial questions of commercial aviation rights. It leaves these questions to be settled by other international agreements, which are entirely independent of the Convention, and which provide for the reciprocal exchange of commercial air transport rights. Under authority vested in me, I have actively undertaken to consummate such agreements, in order to assure the most favorable development of international civil aviation. Naturally, agreements of this nature to which the United States is a party are consistent with the requirements of the Civil Aeronautics Act, are valid under its terms, and fully protect the public interest. Under these agreements, before foreign air carrier permits are issued by the United States to foreign airlines, they must qualify under the provisions of the Civil Aeronautics Act."

The President consulted me in connection with the above statement, and it was made with my full approval.

It is recognized that there are many classes of agreements with foreign countries which are not required to be formulated as treaties. Of particular pertinence to the question here is that class of executive agreements which are entered into in accordance with, and within the scope of, authority vested in the executive branch by legislation enacted by the Congress. Notable examples of agreements which fall within this class are postal conventions and reciprocal trade agreements.

The agreements referred to by the President in his message of June 11 were executed under the authority vested in him by the Constitution and statutes, including the Civil Aeronautics Act of 1938 (approved June 23, 1938, c. 601, 52 Stat. 973; 49 U. S. C. 401 et seq.). Section 802 of the act clearly anticipates the making of agreements with foreign countries concerning civil aviation, and provides that, "the Secretary of State shall advise the Authority [now Civil Aernouatics Board; Reorganization Plan No. IV, 54 Stat. 1235] of, and consult with the Authority [Board] concerning, the negotiation of any agreements with foreign governments for the establishment or development of air navigation, including air routes and services.”1

Having anticipated the possibility of agreements with foreign countries and having prescribed the manner of arriving at such agreements,

1 No opinion is asked or offered on the question whether the Administrator of Civil Aeronautics is or is not entitled to be advised and consulted with respect to the negotiation of agreements covered by section 802.

the 1938 act, in section 1102, provides that the Civil Aeronautics Board, in exercising its powers and performing its duties, "shall do so consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be in force between the United States and any foreign country." Moreover, under section 801, the President is required to make the final decision with respect to the grant or denial of a permit to a foreign carrier.

The foregoing statutory provisions make it clear that the Congress contemplated the consummation of agreements with foreign nations relating to international civil aviation.

The only argument which, so far as I know, has been advanced that existing agreements in this field are not valid is based on section 402 of the Civil Aeronautics Act of 1938. That section provides that "no foreign air carrier shall engage in foreign air transportation unless there is in force a permit issued by the Authority [Board] authorizing such carrier so to engage." Such a permit may be issued by the Board "if it finds that such carrier is fit, willing, and able properly to perform such air transportation and to conform to the provisions of this chapter and the rules, regulations, and requirements of the Authority [Board] hereunder, and that such transportation will be in the public interest." However, as I have previously indicated any action taken by the Board is subject to approval or disapproval by the President under section 801 of the statute and, therefore, it is the President, rather than the Board, who makes the final decision.

I understand that it is the position of the Department of State that the jurisdiction of the Civil Aeronautics Board in connection with the granting of permits is not affected by any of the civil aviation agreements which have been concluded, and that the Board in each case must still decide whether the applicant carrier is a suitable airline for performance under the requested permit and whether the issuance of the permit would meet the other requirements of the statute. It is also the position of your Department that where an agreement with a foreign nation exists, the Board, pursuant to section 1102, must act "consistently with any obligation assumed by the United States" in such agreement and, therefore, within the broad policy declared in the agreement. The ultimate decision, of course, under section 801, must be made by the President.

I concur in the position taken by the Department of State. None of the existing executive agreements purports to waive the necessity of proceeding under section 402 of the Civil Aeronautics Act of 1938, and I am informed that the procedure specified in that section is in fact complied with by the Civil Aeronautics Board whether or not there is in existence an agreement with the foreign country involved.

Sincerely yours,

TOM C. CLARK.

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CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL TRANSPORTATION BY AIR

THE PRESIDENT OF THE GERMAN REICH, THE FEDERAL PRESIDENT OF THE REPUBLIC OF AUSTRIA, HIS MAJESTY THE KING OF THE BELGIANS, THE PRESIDENT OF THE UNITED STATES OF BRAZIL, HIS MAJESTY THE KING OF THE BULGARIANS, THE PRESIDENT OF THE NATIONALIST GOVERNMENT OF CHINA, HIS MAJESTY THE KING OF DENMARK AND ICELAND, HIS MAJESTY THE KING OF EGYPT, HIS MAJESTY THE KING OF SPAIN, THE CHIEF OF STATE OF THE REPUBLIC OF ESTONIA, THE PRESIDENT OF THE REPUBLIC OF FINLAND, THE PRESIDENT OF THE FRENCH REPUBLIC, HIS MAJESTY THE KING OF GREAT BRITAIN, IRELAND, AND THE BRITISH DOMINIONS BEYOND THE SEAS, EMPEROR OF INDIA, THE PRESIDENT OF THE HELLENIC REPUBLIC, HIS MOST SERENE HIGHNESS THE REGENT OF THE KINGDOM OF HUNGARY, HIS MAJESTY THE KING OF ITALY, HIS MAJESTY THE EMPEROR OF JAPAN, THE PRESIDENT OF THE REPUBLIC OF LATVIA, HER ROYAL HIGHNESS THE GRAND DUCHESS OF LUXEMBURG, THE PRESIDENT OF THE UNITED MEXICAN STATES, HIS MAJESTY THE KING OF NORWAY, HER MAJESTY THE QUEEN OF THE NETHERLANDS, THE PRESIDENT OF THE REPUBLIC OF POLAND, HIS MAJESTY THE KING OF RUMANIA, HIS MAJESTY THE KING OF SWEDEN, THE SWISS FEDERAL COUNCIL, THE PRESIDENT OF THE CZECHOSLOVAK REPUBLIC, THE CENTRAL EXECUTIVE COMMITTEE OF THE UNION OF SOVIET SOCIALIST REPUBLICS, THE PRESIDENT OF THE UNITED STATES OF VENEZUELA, HIS MAJESTY THE KING OF YUGOSLAVIA:

Having recognized the advantage of regulating in a uniform manner the conditions of international transportation by air in respect of the documents used for such transportation and of the liability of the carrier,

Have nominated to this end their respective Plenipotentiaries, who, being thereto duly authorized, have concluded and signed the following convention:

CHAPTER I. SCOPE-DEFINITIONS
Article 1

(1) This convention shall apply to all international transportation of persons, baggage, or goods performed by aircraft for hire. It shall apply equally to gratuitous transportation by aircraft performed by an air transportation enterprise.

1 Not the official title, but in common usage. The various treaties and agreements with foreign countries pertaining to aviation are outside the scope of this compilation. However, due to their frequent citation, the Warsaw Convention and Chicago Convention, so called, are herein reproduced for convenient reference.

2 The French text, as proclaimed, is the official text. The translation here given is reproduced from that contained in a proclamation by the President of the United States, dated October 29, 1934.

(2) For the purposes of this convention the expression "international transportation" shall mean any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to this convention. Transportation without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate, or authority of the same High Contracting Party shall not be deemed to be international for the purposes of this convention.

(3) Transportation to be performed by several successive air carriers shall be deemed, for the purposes of this convention, to be one undivided transportation, if it has been regarded by the parties as a single operation, whether it has been agreed upon under the form of a single contract or of a series of contracts, and it shall not lose its international character merely because one contract or a series of contracts is to be performed entirely within a territory subject to the sovereignty, suzerainty, mandate, or authority of the same High Contracting Party.

Article 2

(1) This convention shall apply to transportation performed by the state or by legal entities constituted under public law provided it falls within the conditions laid down in article 1.

(2) This convention shall not apply to transportation performed under the terms of any international postal convention.

CHAPTER II. TRANSPORTATION DOCUMENTS

SECTION I.-PASSENGER TICKET

Article 3

(1) For the transportation of passengers the carrier must deliver a passenger ticket which shall contain the following particulars: (a) The place and date of issue;

(b) The place of departure and of destination;

(c) The agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right, the alteration shall not have the effect of depriving the transportation of its international character; (d) The name and address of the carrier or carriers;

(e) A statement that the transportation is subject to the rules relating to liability established by this convention.

(2) The absence, irregularity, or loss of the passenger ticket shall not affect the existence or the validity of the contract of transportation, which shall none the less be subject to the rules of this convention. Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this convention which exclude or limit his liability.

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