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customs inspection vessels entering a port in distress or for the purpose of taking on stores or fuel without landing or taking aboard passengers or cargo (Tariff Act of 1930, 8 441(4); 19 U.S.C. 1441(4)). The Court considered that provision to be an exception to the general provision of the same statute authorizing boarding of vessels by customs officers ($ 581(a); 19 U.S.C. 1581(a)). It found also that, although the statute was phrased in terms of “vessel" or "vehicle" and did not apply to aircraft, regulations issued by the Secretary of the Treasury for aircraft parallel the statute and must be construed broadly in conformity with it. The Court referred to Code of Federal Regulations, Title 19, Chapter 1, Part 6 Air Commerce Regulations, and said that, although the regulations did not track the statutory provision, they must be construed in pari materia. In the first place, the Court said, the Secretary does not have power to issue regulations inconsistent with the general precepts and tenor of the enacted legislation; but, more importantly, the exemption of vessels in distress from customs inspection is not an act of governmental munificence but “recognizes fundamental principles of international law," citing United States v. Sullivan, 26 F.2d 606 (1928), and The Brig Concord, 9 Cranch 387 (1815).
Preferences for United States Air Carriers
In a note dated December 9, 1974, to the Department of State the British Embassy at Washington expressed its objection to the U.S. Government's “fly U.S. flag" program as constituting a violation of the "fair and equal opportunity” provision of the Air Services Agreement between the United States and the United Kingdom (TIAS 1507; 60 Stat. 1499; entered into force February 11, 1946). The Embassy noted in particular a letter dated October 23, 1974, from Secretary of Transportation Claude S. Brinegar to the chief executives of all the domestic U.S. scheduled airlines appealing for a "shift in the level of interline traffic that you feed to our international carriers” as well as other appeals and campaigns directed at travel agents and shippers of air cargo. Citing the understanding in the Final Act of the Air Services Agreement that “there shall be fair and equal opportunity for the carriers of the two nations to operate on any route between their respective territories," the Embassy charged that the Secretary of Transportation's appeals to "fly U.S. flag" were an incitement to discrimination and incompatible with that undertaking. The note requested deletion of the “fly U.S. flag” program from the "Seven-Point Action Plan" designed by the United States to alleviate financial difficulties facing United States international airlines and requested the U.S. authorities to insure that "fair and equal opportunity” is given to British airlines operating scheduled services to the United States.
In a note dated January 8, 1975, the Department of State pointed out that the aspect of the “fly U.S. flag” program relating to government procurement of transportation is widely practiced and that most governments agree that regulations on government procurement of transportation services which require utilization of the national flag carrier wherever possible do not constitute violations of the fair and equal opportunity provisions of bilateral agreements on air transportation. The note continued: “The other aspect of this program involves simply an effort by the U.S. Government to make its citizens aware of the important role played by U.S. flag carriers in providing them with safe, efficient and inexpensive international air services. These efforts have no legal force whatsoever. The choice of carriers for private sector travel remains and should remain an individual decision." Stating its intention not to depart from the longstanding U.S. policy that the public interest and the national interest are best served by a mutual exchange in bilateral air transport agreements based on a fair and equitable opportunity to compete, the Department expressed confidence that "the U.S. market will continue to offer an hospitable environment for foreign air carriers."
Dept. of State File Nos. P74 0137-0464 and P75 0009_0027. On Feb. 10, 1975, the Dept. of State replied similarly to a note of Jan. 21, 1975, from the Embassy of the Federal Republic of Germany at Washington which expressed that Government's concern relative to the “fly U.S. flag" program.
For a discussion of the International Air Transportation Fair Competitive Practices Act of 1974 (P.L. 93–623; 88 Stat. 2102, approved Jan. 3, 1975) and the Federal procurement regulations, effective Oct. 21, 1974, setting forth U.S. policy on use of U.S. flag air carriers applicable to Federal agencies, Government contractors and subcontractors, see the 1974 Digest, pp. 395–397. The Federal procurement regulations referred to may be found at Fed. Reg., Vol. 39, No. 189, Sept. 27, 1974, pp. 34664–34665. The “Seven-Point Action Plan” was announced by the Dept. of Transportation on Oct. 2, 1974. See the 1974 Digest, pp. 391-392.
The Final Act of the Civil Aviation Conference, held at Bermuda Jan. 15-Feb. 11, 1946, signed for the United States and the United Kingdom on Feb. 11, 1946, at the time of signature of the Air Services Agreement between the two countries provides in par. (4) that the representatives of the two Governments "resolve and agree . . . That there shall be a fair and equal opportunity for the carriers of the two nations to operate on any route between their respective territories (as defined in the Agreement) covered by the Agreement and its Annex.” TIAS 1507, p. 18; 60 Stat. 1515; entered into force Feb. 11, 1946.
Civil Aeronautics Board Regulations
Foreign Air Transportation
In Diggs et al. v. Civil Aeronautics Board, 516 F.2d 1248 (1975), the U.S. Court of Appeals for the District of Columbia Circuit, on August 4, 1975, held that under Section 1006(a) of the Federal Aviation Act, 49 U.S.C. 1486(a), the Court of Appeals did not have original jurisdiction to review an order of the Civil Aeronautics Board (CAB), approved by the President, authorizing a foreign airline to service a new route between South Africa and New York.
Petitioners, members of the House of Representatives and four associations which represented the interests of black Americans, appealed from an order of the CAB, which authorized South African Airways (SAA) to serve a new route between Johannesburg, South Africa, and New York. The order had been adopted under Section 402 of the Federal Aviation Act, 49 U.S.C. 1372, and approved by the President under Section 801 of the Act, 49 U.S.C. 1461.
Petitioners asserted that the CAB's order violated Sections 402(b) and 404(c) of the Act, 49 U.S.C. 1372(b) and 1374(b). They contended that those sections prohibited the CAB from issuing a permit to a foreign air carrier which discriminates among its passengers on a racial basis and that the CAB violated those sections by refusing to hear evidence that SAA discriminates against blacks on its domestic connecting flights and in its facilities in South Africa.
The U.S. Court of Appeals' original jurisdiction to review CAB orders is limited by Section 1006(a) of the Act, 49 U.S.C. 1486(a). That section provides that an “order in respect to any foreign carrier subject to the approval of the President” is not so reviewable.
CAB and SAA moved to dismiss the petition for review on the ground that Section 1006(a) was a jurisdictional bar. Petitioners argued that when the CAB submits an order that is invalid on constitutional or statutory grounds—alleged to be the situation here-Presidential approval will not cure the defect. They therefore urged the Court to construe Section 1006(a) so that it might consider the petition even though the challenged order was subject to Presidential approval and was so approved.
The Court dismissed the petition, holding that the explicit language of Section 1006(a), together with the definition of foreign air carrier in Section 101(19) of the Act, 49 U.S.C. 1301(19), and the definition of foreign air transportation in Section 101(21)(c) of the Act, 49 U.S.C. 1301(21)(c), did not permit such interpretation. The Court said that in the absence of any relevant legislative history, the statutory language must be construed as intended to mean what it says and thus deprive the Court of Appeals of jurisdiction to review the order. The Court did not reach the merits of petitioners' constitutional contentions, nor did it decide whether the District Court had jurisdiction over the action.
The Civil Aeronautics Board (CAB) announced on September 25, 1975, that it had refused to review a staff decision denying the Soviet airline Aeroflot permission to fly seven charter flights from the United States to the Soviet Union. The staff's action was based on a finding that the Soviet Union had not provided reciprocal authorization with respect to a World Airways request to operate a series of inclusive tour charter flights to Russia in 1976. Aeroflot had sought Board review and reversal, saying that the Soviet Union was unable to authorize World Airways flights because they were proposed for operation after March 31, 1976, the expiration of the understanding between the United States and the Soviet Union relative to charter flights.
The Board stated that the Soviet Union did not demonstrate adequate grounds for review, noting the absence of a showing that the Soviet Ministry of Civil Aviation would approve World Airways' application for its 1976 inclusive tour charter program.
CAB Order 75–9–91; CAB Press Release 75–150, Sept. 25, 1975. The U.S.U.S.S.R. understanding on charter flights was concluded by exchange of notes of Dec. 9, 1974, and Apr. 16, 1975 (Dept. of State File L/T), under the terms of the U.S.-U.S.S.R. civil air transport agreement of Nov. 4, 1966, as supplemented (TIAS 6135; 17 UST 1909; entered into force Nov. 4, 1966).
On November 14, 1975, the Civil Aeronautics Board (CAB) disapproved an intercarrier agreement between Pan American World Airways and Aeroflot, the Soviet national airline, which would have established new flight services levels for the carriers between the United States and the Soviet Union. The agreement had been filed with the Board on July 3, 1975, and under Section 412 of the Federal Aviation Act of 1958 (49 U.S.C. 1382) was subject to CAB review and approval.
The Board, in disapproving the agreement, found it to be contrary to the public interest, noting that Aeroflot at that time transported 72 percent of all passengers carried by both countries' carriers as well as 89 percent of all persons flying Pan American or Aeroflot whose flights originated in the Soviet Union. The CAB said that the proposed Pan American/Aeroflot agreement would have widened to the U.S. flag carrier's disadvantage the revenue gap under existing arrangements.
CAB Order 75–11-48; CAB Press Release 75–173, Nov. 14, 1975.
On December 11, 1975, Phillip R. Trimble, Assistant Legal Adviser for Economic and Business Affairs, Department of State, discussed the international legal considerations involved in domestic regulation of aircraft noise, before the Aviation Subcommittee of the Public Works and Transportation Committee of the House of Representatives. With reference to the international agreements under which foreign air carriers are given permission to operate into the United States, he said:
... there are restrictions on the rights accorded under these agreements. For example, a designated carrier is required to fulfill U.S. laws and regulations normally applied to the operations of commercial air carriers. Furthermore, in the standard bilateral it is provided that airlines of the other party must comply with our laws and regulations relating to the "admission" and "departure" of aircraft, as well as laws and regulations relating to the "operation and navigation" of aircraft within our territory. The Chicago Convention (on International Civil Aviation) and the [Air Services] Transit Agreement contain the same requirement.
At the same time the Chicago Convention requires that these laws and regulations must be nondiscriminatory. Article 11 provides:
Subject to the provisions of this Convention, the laws and regulations of a contracting state relating to the admission to or departure from its territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within its territory, shall be applied to the aircraft of all contracting states without distinction as to nationality, and shall be complied with by such aircraft upon entering or departing from or while within the territory of that state.