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Airport Charges under Judicial Review
Published online by Cambridge University Press: 21 May 2009
Extract
The U.S. District Court for the Southern District of Florida recently decided a case between a number of foreign airlines and the Dade County Port Authority as operator of the Miami International Airport. This case concerned the question of whether foreign airlines were bound to pay airport charges at a higher rate than some comparable American airlines. The plaintiff airlines claimed that the rates imposed by the Airport violated the applicable provisions of the Chicago Conventions The Port Authority denied this and opposed the claim on factual as well as legal grounds. For a proper understanding of the case we have to turn to the preceding history first.
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References
1. U.S. District Court for the Southern District of Florida, Miami Division, 06 30, 1961, 197 F. Supp. 230.Google Scholar
2. “Self-liquidating” in that the rentals to be received by the Authority would be sufficient to fully pay off its debt.
3. The Board of County Commissioners is an administrative body in each County for the administration of that County. They are appointed as such by the electorate of the County concerned.
4. The equally authentic English, French and Spanish texts of the Convention have been published by the international Civil Aviation Organization (ICAO Doc. 7300).
In 1949 all States involved were parties to the Convention except Panama. Panama, however, had concluded a bilateral air agreement with the US containing a similar provision.
5. In this line of thought, the prohibition contained in Art. 15 of the Convention can only be effective as against the Contracting States and will not apply to subjects of those States, acting like the Board of County Commissioners in this case, in a pivate capacity.
6. These powers comprise for example the issuance of certificates of public convenience to domestic carriers and of permits to foreign carriers, the approval of tariffs, the conduct of investigations and inquiries into matters of consolidation, merger and acquisition of control, etc. These powers are mainly derived from the Federal Aviation Act (known before 1959 as Civil Aeronautics Act).
7. It appears that the Chicago Convention was invoked in an advanced stage of these proceedings, during a petition of reconsideration filed after dismissal by the Board of the Complaints.
8. The offices of the Administrator (since 1959, the Federal Aviation Agency) are provided by the Act with practically all powers that are not reserved for the Board.
9. In order to establish jurisdiction of a federal court, a case must belong to at least one of the following categories:
1. cases to which the United States is a party
2. cases of admiralty and maritime jurisdiction
3. cases in which the parties are residents of different States
4. cases arising under the Constitution and laws of the United States This last point has been interpreted by the Courts to mean that the federal courts Were given jurisdiction only over cases where the plaintiff based his claim on federal law.
10. A discussion of this problem under American and Dutch law is contained in the recently published book by Brades, L. and Gould, W.-, The relation between international law and municipal law in the Netherlands and in the United States (Chapter XI p. 297. etc.)Google Scholar
11. Art. VI of the US Constitution.
12. Foster and Elam v. Neilson 2 Peters, 253Google Scholar (Supreme Court Reports, Book VII) The treaty in question regulated the cession of Louisiana to the US. The territory involved had not been clearly defined in the treaty with resulting disagreement between the States as to its territorial limits. The abovequoted case deals with a dispute concerning title to a piece of land within the disputed area.
13. Asakura v. City of Seattle, 265, US 332.Google Scholar
14. The first draft of Art. 15 contained a most favored nation clause, which has been replaced by the present clause in order to guarantee a more direct application of the provision. Proceedings of the International Civil Aviation Conference at Chicago, Vol. II, p. 1383.Google Scholar
15. Art. 111 of the US Constitution empowers the federal courts to judge all cases “arising under the treaties made or which shall be made under the authority of the United States.”
16. In the same sense: Lemoine, , Traité de Droit Aérien, § 93Google Scholar. Riese, , Luftrecht, p. 120Google Scholar. Honig, , The legal status of aircraft, p. 127.Google Scholar
17. For the same reason the judge rejects the defendant's plea that some other American carriers not being one of the Big Four, like f.i. Braniff, paid the same charges as the foreign carriers.
18. I purposely refer to local interests here. From a national point of view these methods are not necessarily advantageous. Discrimination of this kind may provoke similar countermeasures abroad or may simply discourage foreign carriers from operating to the discriminating States, in which event it may cause an unwanted decrease of air traffic from and to this country.
19. See infra p. 61.
20. Court of Customs Appeals 291 (328–331).
21. Another (indirect) argument could possibly be found in the history of Art. 15. At one time there was a proposal from the French delegate to make Art. 15 effective with respect to prices of fuel, oil and other supplies as well. However the delegate of India opposed this proposal and pointed out that the prices charged for fuel and supplies are determined by private contract and cannot be guaranteed in a Convention between States. Following this line of argument, it is possible to contend that it must have been the intention of the authors of art. 15 to consider the charges which are named in Art. 15 as guaranteed in the Convention. (Chicago Proceedings, l.c. Vol. I p. 687).
It is necessary to regard this argument with some reservation, however, as the Chicago Convention has in common with many other treaties that its history is in many ways confused and disjointed. An argument derived therefrom must be handled with some caution therefor.
22. The total amount involved in this refund claim exceeded US $ 650,000.
23. In the United States the appellant must first obtain leave from the Supreme Court if he wants to appeal to that Court. These requests are considered by the Justices of the Supreme Court each of whom has his own Appellate Court to supervise. The leave is usually granted in matters of great interest and cases involving important points of law.
24. This may seem exaggerated, but in view of the magnitude of these charges and their tendency to rise, they are a matter of grave concern to the airlines and a threat to the financial stability of the industry. See in this respect the studies prepared by the Air Transport Committee of the International Civil Aviation Organization on the cost of airport and air navigation facilities and the incidence of the resulting charges on the economy of the airlines. (These studies are published in ICAO Doc 7642 C/870 and 7684 C/891 of April 1954 and May 1956 respectively)
25. At the meeting of the Legal Committee of the International Civil Aviation Organisation held in June 1950 at Montreal, the idea of an international tribunal for the adjudication of claims deriving from liability in aviation matters was placed on the Work Programme of the Committee (ICAO Doc 7035 –LC 128, p. 26). The point as such has not received much attention however and was later on removed from the Legal Committee's programme.
26. Drion, H., “Towards a uniform interpretation of the private air law Conventions”, Journal of Air Law and Commerce, 1952, p. 423.Google Scholar