Petition for Writ of Certiorari — Liner v. Jafco, Inc.

Supreme Court brief1963

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1X THE.

“Supreme Court of.the United States

OcroBer Tek, 1962

ABROVIAS INTERAM ERICANAS pr PANAMA. S.A. eteal

and

‘Live AS AEREAS DE NIC ARAGU a. S.A..

; ' Petitioners

‘ .

Boarp oF COUNTY COMMISSIONERS OF DADE COUNTY. on

FLoripa, acting as the Dapr-County Port AUTHORITY.

:’ Petition for Writ of Certiorari jo the United States

' Court of Appeals tar thé F ifth Crrcuit

‘PHIL. SCHLEIT

| 1757 K Street, N.W.

Re ~~ Washington’6, D.C. 7)

J. Leo McSuaxr

740 Ingraham Bide.

Miami 32. Florida

. 4

~—s

y WinuiaM 1D. DONNELLY.

1625 K Street, NW.

Washington 6. 1D. ¢

Press or Byron S. ADAMS, WASHINGTON, D. C

. : ° 9

% . eg : te

: ZINDEX 43)" ue :

: pate Pe As 7 id :

Opinions below ... 00.2... nsec esp asvessssdederees

: Jurisdiction ..... aera’ hicky tak Ae lace KT ee ee

Questions presented eee eh Cee oe Tere ere? eee

Treaties and eXecutive agreements invotved .... 5.

Re: asons for granting the w rit Se Seer baer

. The court below has so far departed from the Ordi:

nary course of judicial proceedings and has so far

disregarded the decisions of this court as to require

exereise of the supervisory powers of this court

A. The C ourt below has disregarded all principles.

of treaty interpretation in ay ares il

__ agreements of thetetendant are ‘inconsistent’

With the terms of the Chicage Convention:

(1) ‘The decision violates the plain ac-

(3)

vepted meaning of words used in both the

English and: Spanish texts ...02...........

The decision ‘overlooks legislative history

showing that Article 82. relates only to

agreements of airlines with other States

or nationals of ee WRI 6 eis cites i

Articles15 of the Chic ‘avo Convention. is

- self-executing and is in full foree and ettect

: The higher rate ‘charged Braniff airlines can-

not besaccepted as the criterion established by

Article 15 of the C hic ago Convention .........

. ‘The opinion of the court below with respect to

most-favored-nation rights: rests on a. spurious

‘issue wrongiy deéided .

(1) The. question of rights under a most:

-favored-nation clause is a spurious issue .

~—— «©

a al

—_

il ‘ Index Continued |

~ . \

. . . \ »

, * 3 ‘Page |

~) Kyen if the tssue ef a most-fevored-nation

i clause were presented, the court below de-

~ cided it erroneously ......2..5..4\...5..0. 37

(3) Confusion of “most: favored: nation’

_ Clauses with a clause granting *‘natienal’’

ase treatment is without _dmusenee on any :

= OUI se a Sls Shee oN yore ce sees 38

ID). The Big Four furnished aro valuable Natt. Qi

tion for their preferential landing charges en-

joved under their, lease agreements ..... aks ee

2. Independently of the Chicago Convention, the

%: - bilateral agreements ‘confer rights that emde-

quately support the judgment of the district -

court ...: agers RAK e ea he STEN 6 os ekK Ea 42

(1). The bilateral agreements have equal dig-

nity with formal treaties (ee ea Reena eee 44

2 i The bilateral agreements contain no provi-§

Sion comparable to Article 82 of the Chi-’

cago C onvention Se Rae neat G Sree 45

poe ae ene

2. The issues here: involved are of great. and con-

~ tinuing importance to the petitioners, to . their

States and to the United. States Mens Pe eed Cn. ae

Conclusion pres Siege yee eK che vusaaussd Vneenase ae

aM : ;

ne RE SLOT EET ve antet vewes RUAG Nace) as

Appendix: B Trey iy “ehiskas seu habees iektneasetana I4a:

ROE ois ci sexendan PN dewne SEO Freres,

; “Appendix ros re ee en eas cMbke Ween .»° 29a.

~/ Po A re ioe Ck ere ee PE ae Pee lit

\ rae ‘ ; .

26 . 4 —s

. 4 X

’ y $e

ex's ‘Index. Continued ——” " eee

- CUPATIONS— ea

Casts: ; Fen aes eas aren

ie sldditston Pipe Ste el (- oO, v. Ur yite d Strtte S Q ry

BE oes oes cake ck heey Sai tape rnbeees inukes Pre

‘ Lsakura ¥. Seattle MUS BSF .

Bacardi Corp. Vv. Domenech? a1 .

Bartram vy. Robertson, “ge U. S

Chariton Vv. Aeliy, 229 TU.

‘hew ATeong v0 sided Stat s. V2 ? .

Clark * Wha, BL US: DOF. Ss oe. rey BN

Colonial Ary Lines, far ve Adams, 87 F. Sup 040 +4

. Continental Bang v. Rock so i 9.. 294 USS. 648 oH)

- Factor vy. Laube wheime Pe EP, Se) Ae ¥ ese

Geoffroy Y. Rigas 1 a C a, 5S ee . + phere eee Eee Gio we

Haver v.. Yaker, Walp. 32.0.2... Ay: ee ptele eee

ilead Money Casé s 42 CS: S80 Sef - Pn ae re ae

Highland x. Russell Car Co.: 279. VF. 2 at < GRR ENS Coe pae® 39

lannone v. Radoryn( eaalioctiog Corp O85 Ap. .). “Div.

751 NY. yalf'd per eur. a ” F -4 Cee ane oe 3

John T. Bilk Co, v. hi “wited Stat i. Wee ae OE es ace saat

Jordan.v. Tashiré 278 USA Te, Cae aD Payee gee 22

Kolovrat v. Oregon, 3301S. IN et PE, ere je

Lontsrille & Nashville RR. Covi Mottley, 219. U: S. 467.0 39

Nielsen = Johnson. 3 9 LS. " en Ae ie Nao a wa Seti eh =

Nivisoe v.weohmegm 270 UB 4G 8. oc gen co eee cans 38

Norman v. B. & 0. - RoC o.. 294 UB.-240 ©... cece. <<. ce

Northeast Airfues ve Walter Weiss, 113 So, 2d 884, .

cert. depfed 113 So. -2d:772 (Fla:) vag... 00..ce.0.. BS

Roeva vx. Thompson, eo-- GIS. © ; yen Roe laie ace thetart Os

Santoricenio Vv, Eadn, 284 US. 3002 00 99 34.38

State of Russia v. National C ue Bank. 69 I. od i4. 44

, Bultican v. Kidd, 244 U.S: 435 . 2. ot 8c. ee ee a ; oo ee

Terrace ¥. Thempson, 263.U. 7 eee oF aE 5 oe

‘The Amiable Tsabella. 6 W Hieat. 5 1s LN Ny ng aoe 39

Tucker vy. Alecandroff AS3 US, : . aaa Meee aa Se. Be

United States ve Belmont, 301 U.S.- Bod Se ek 44

United States v.D Aulerive, SOHN 6009 ah OC uee wae 9

United States v. Pink, BBWS. 208-0502 Se. dd

United States v. St. louis Ter minal, 224 T'S. GSS. 2... 47

United States v..Feras, 162 USS 1-0. ci cpa naecs: OO

a re ery ore ee ©

| Seti - ‘Index Continued | ae ae

Pave‘.

= > oe . ; os , : . > - e

TREATIES, EXrcrTive AGREEMENTS AND STATUTES: ae

“Agreements Respecting Air. Transport Services (Bi- .*

laterals). WES slo oda hee Sew s oes wwe 6, 10, 16,42, °

: 43, 44, 45, 46

Rieit, September &, "1946, Art. II1(1), 61 Stat.

(4) 4121, 4126, TT. AS. 1900 (effective Octo-

ee Ses asa ices eantax. bene 5, 8, 46

Colombia, October 24, 1956, Art. 7(a), effective

provisionally January 1, 1957 (State. Dep't

. Press Release, October 25, 1956) 0.000000... Hh

‘Keurador, January 8, 1947, Art? 3(a), 61 Stat.

(3) 2773, 2774, T.LA.S. 1906 (effective ae ;

oc Gf eyes eee, Oe er rere e — os tcl :

Mexico, Mareh 7, 1957, Art. 'V <s ST. & yar

” O.1L.A. 295, 310, TLL. ‘Artgtttan hike .

: 5, 1957); August 15,1960, Art. 7(a), 12 U.S.T.

& O.LA. 60, 65,.T.LA.S. 4675 (effective .pro-

visionally August 14, 1960, definitively Jan-_

wary If, 1001) ......%.. bvkay estan wind cen st ;

eee ots March 31, 1949, Art. III (a); 63 Stat.

(3) 2450, 2452, T.1.A.S: 1932 (effective April |...

SU els eee ee aa ae Dd, 16, 17, 44

Peru, December 27, 1946, Art. 3(a), 61 Stat. (3)

2586, 2587, T.L.A.S. 1587 (effective December.

Ei RR i bak akc koe heen eine cee wu hixwacaas 6, 46

Venezuela, August 14, 195: 3, Art. 4(a), 4 U.S.T.

&-O.LA. 1493, 1498, TeLA.S. 2813 (effective. -

August 2a 1953) cue aatecn wh Trey aE ews 6

Arrangement: ‘with Great ary for Air Navigation,

April 5, 1935, 49 Stat. (2) 3720 (effective Mav 5,

1935) oe ee TR Cece Se ste eee LeaCaerrrte ce : eee 8, 30(a)

Bilateral Agreements. § See Agreements Respecting . Air .

NS UININOE a a 5c 5 vs wav WSs ne a Ke cee

Cc hicago Convention, See Convention with Other Gor:

ernments Respécting Civil: Aviation ......0.....

Civil Aeronautics Act of 1938 ..... Sat hren ates ee

A |

e :

Index Continued ne v

Convention with Other Governments Respecting Civi

Aviation (Chicago Convention) December 7. 144,

61. Stat. PISO, TAS. 1501 (effective April 4,

‘ 1947) : : ones rai

Pe Bak ah Ss ns Bisiccoct trol 7, 10,16, 19,

is 20, s 3, 94, 27, 29, 30,

a eer : 1; 33, 34,35, 44, 45

’ Art. 44 ee eee a ee ee : se kheee penal

fT EE ee eras Cees PR aE a Pee bie es Sedeers “s

| ER > Sea RSG Jar aes Pe : oa % 19, 23, 23,

ey 26, 27, BU, 45, 46,

dixecutive Agreements, Nee Agreements’ Respecting

. Air Transport Serv Se ie reek waa eee ERK :

Federal Airport Act ....... aN er eons Rees ores |

Haband Convention on. Commereial Avigtion (Pan ~

American), February 20, 1928) 47- Stat. (2) s1901,

TIS. No. S40, ‘effective as’ ‘to the. United States

a OR BRE oS eck Bs Cae perry. 99

Pan Amertean Convention on Commefeial ‘eis a

(Habana) -Februaty 20, 1928, 47 Stat. (2). 1901;

TAS. No. S40, effeetive as to the: United States

Angust-26, 1S | ener TTT ERE EKG CELESTE 28, 29

Parig Convention, Octoher 18, 1919, Dep't of Staic

Pubbention S148... csp ves eS PRES

Protocol Relatingto Certain Amendments to Conven- ;

‘Hon on ‘International Civil Aviation, June 14. 1954

#1957] S UST. & OLA. 174, T.LAS. 3106 (effec.

‘ike December 12, HG ot. ee eae, 30

Hrotocol, Relating to Certain ‘Amendinents ‘1 to Conven:. -

tion-on International Civil Aviation, F ebruary 2h.

1961, T.LA.S: LTO) (effective July It, 1962 E are 30)

Treatip ‘sin Force, State Departinent Annual Pubjica- |

TES ey gee pola d wake ERA bes ee ee ee ae ic ae

28 ULS.C. Sees. 1331, 1332, 1254(1) ectrer ates Q.-F

ay : } . —— :

A ;

=: ‘ .

* > _

; , ;

| Le

“* ; _ * Index Continned ~ -

“* : bis Oe j ° ‘\ , Mi . 7

MISCELLANEOUS: 3 -

. " 9 e

Aapects of United States Participation in International —

Civil Aviation (1948). sits of State. Publication

POC TE as Ka chs Sin wie Raa bok hn Nene 29

~ Beaumont, Legal Pesiline of Air Carriers, ; Int Law:

. Quarterly (1950) WD cee paps Caaiques ws eieqss. Oe

Bin me’ Law of {nternational Air ‘frenaben (1962),

2 PRES Cre eae ay Ree OT

David. 1.C.. 1.0. Activities: Affecting the Vnited sts

Airports, Papers Pres@nted’ at. the. First) Annual

Meeting ‘of the Airport Operators , Council, pp.

BP tag k i vixsiees mEee ce shin kcae a's [vcaginas ta

Dodgson, Through the Looking dhiex. eo te pisweekes 24

Hae kw orth, Dine st of International Law (1943) :

Wl, eS Oe obs bcaecesss dali rns io Wt angers rhe

- Vol. 5, ¢ 501, pp. 269- BAO bata es chaeuna bavaens a cous SSD

Vol. 5, pe 203 oot ee eee es TT veya. ae

Vol. 5, pp. 271-207 Wetsees enews Pika ss estas dcsacs 37

40 Op. ACG.ABL ecco. OY ch ee meee wae

i Oppenheim, International’ Law, Sev. 580, pp. 972 O73, :

(Sth ed.-Lawterpacht 1955) 2.2... ee. 87

Port Authority Resolittion-No. 56 . rubhekencee pa ah! 15, 16

Fipcesdinge of the internationat Civil Aviation Con-

ference, Chicago, Tllinois ovember 1—Derember

i, 1944, Dép’ t State: Publication 2820 (1948)

Cenmienties: on, the Developinents: of the In-

dividual Articles of the Convention on Inter:

national Civil Aviation:

pp. 1380, 1388-1384 0... eeu |

: pp. A393-1894, 20.2... ech pees 26°

Document SS TR Bel eee.

pp. 554, 557, 561-2... 6... aa eke ecre re FT

. 5 x es ; FS \ 6. : ; a

: 34 r ce

“Index entinned | eee ieee a

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is Lie. Document 467:. > | Pal Oe

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“Soupeeme Court of the United States

ie — TERM, 1962 -

No.

and

Linas AEREAS DE NICAMRGUA, S:

ag _ Retitioners —

. 3 °

Boarp oF CounTY COMMISSIONERS OF DADE COUNTY,

Froria, acting as the Dank County Port Au tHortry.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

‘ STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

‘

——_—_—_———_

To the Honorable, the Chief Justice of the United ;

_ States. and .the Associate Justices of the Supreme ,

Court of the United States:

Your petitioners ayes that writ of certiorari issue

to review the judgn ‘nts of the United States Court of

Appeals entered in the above cause on August 31, (1962,

reversing the judgments of the United States District |

Court.for the Southern District of Florida.

oe OPINIONS BELOW

The opinion of the-United States District Court for

the Southern -District of Florida, tiled July: 3, 1961

(R. 373) is officially reported i in 197 F. Supp. 230. The

opinion of the Court of Appeals for the Fifth Cireuit

(CR. 732; App. A, PP. la-13a) is reported in 307, F.2d

802.

’ JURISDICTION :

The matter in controversy exceeds $10,000.00 in the

case of, each petitioner, ‘arose under a treaty of the

United. States, and was between a citizen of a State

and subjects of foreign states: Jurisdiction of the -

United States District Court for the Southern District ..

of Florida was based on 28 U.S.C. §§ 1331 and 1332

(R. 151). The judgments of the Court of Appeals

for the Fifth Circuit here sought to be reviewed were .

dated and entered on. August 31, 1962 (R. 746, 747:

App. B, pp. 14a-17a). The ponips>3 tion of this C ourt

_ is invoked under 28 U.S sec, 1254(1).

QUESTIONS PRESENTED

_ 1. Are 20-year lease agreements between United

States international airlines, and the Miami airport ‘

authority, which agreements provide for airport

charges to such lessee airlines, ‘‘ineonsistent obliga-

tions’’ within the ambit of. Article 82 of the Chicago

Convention, so us to make ineffective Article 15 of

that Convention requiring that airport charges to peti- — -

~ tioners’ foreign-registered aircraft engaged in inter-

national air services shall ‘snot be higher’’ than the

airport charges for United States aircraft engaged in_

similar international air services ? my ;

2. “Under Article 15 of the Chicago Cidveltion ig

‘the right of petitioners” foreign- -registered aircraft in

international service, to use of the Miami airport .at_

charges not higher than those exacted of competing

United States airlines for the similar use of the air-

‘port by aireraft carrying 67% of all-international traf-

‘fic, nullified or avoided by the mere fact that one small

United States airline, flying to only six Latin-Ameri-

‘an countries and carry ‘ing only 2“ of the international

traffic at such airport, has been paying landing cliarges

not less than those paid by petitioners’ foreign-regis- ;

tered aircraft? ? ;

3. Does the valuable consideration exception to the

- most-favored-nation clause as interpreted and applied

by this Court in 1887 and 1888 apply to nullify rights

under a multilateral aviation ‘treaty executed in 1944,

® ' | ;

effective in 1947, where the treaty-contains no *“Thost-

favored-nation”? clause but provides that- airport

charges to foreign aircraft shall **not be higher** than

‘‘thosé that would be paid by its [United States]

national aircraft’? : |

4. Independently of thet Chicago Convention, do the

.Yespective bilateral Air Transport Services Agree-

ments of the United States with the seven Latin-Ameri-

can States of which seven of the foreign airline peti-.

tioners here gre nationals, confer upon the petitioners

a presently enforceable right to airport charges not

“higher than those imposed on United States national

aircraft used by the principal competing United States

airlines engaged in similar international air, services?

~~ °

TREATIES AND EXECUTIVE AGREEMENTS INVOLVED

The Convention with Other Governments Respect-

ing Civil Aviation, December. 7, 1944, Arts. lA,and 82,

61 Stat. 1180, 1184,.1203, T.1.A. S: 1591 (effect@ye April

4, 1947) (commonty_ knoe nas the ¢ “hie ago{ ‘onvention)

provides: +

‘Article 15

‘**Every. airport in a contracting State which is

open to ‘public: use by its national aircraft shall

likewise, subject, to the provisions of Articlé 68

' be open "under. uniform conditions to the aircraft

of all the other contracting States. The like

uniform conditions shall apply to the use, by air- -

craft of every contracting State of all air naviga-

tion facilities, including radio and meteorological

services, W hich may be provided for publie use for.

_the safety and expedition of .air navigation.

“Any charges that may ‘be imposed or permitted .

to be imposed by a contracting State far use of.

such airports and air navigation facilities by the _

aireraft of any other contracting State shall not’,

behigher, .°

— (a) As to aircraft not engaged in sched-

uled international air services, than those that -

would be paid by its national aircraft of the

same class engaged in similar operations, and ©

‘‘(b) As to aircraft engaged in scheduled °

international air services, than those that would

be paid by its national aircraft engaged in simi-

lar international air services.

* * | * * * * es * 7

Artic ez. yen

“The contracting States accept this Convention

as abrogating all obligations and understandings ©

between them which are inconsistent .with its

terms, and undertake not to enter into any such

obligations ‘and understandings. A contracting

State which, before becoming a member of the

Organization has undertaken any obligation to-

ward a non-contracting State or a national of a

contracting State or of a non-contracting State |

inconsistent “with the terms of this Convention,

shall take immediate steps to procure its release

from the obligations. If an airline of any con.

tracting State has entered into any such imeon-

sistent obligations. the State of which it isca.

-national shall tise its best efforts to secure their

termination ferthwith-andshattin ane event enuse

them to be terminated. as soon as such aetion can

lawfully be taken after the coming, into force of

this ‘Convention. rs

Executive Agreements (Air Transport Services

Agreements) with:

Brazil, September 6, 1946, Article ILL(), 61 Stat.

(4) 4121, 4126. T.E.A.S. 1960 (effective October 6,

1946).

Colombia? October o4, 1996, Art. Ta), effective pro-

visionally January 1, 1957 (Stite Dep't anes

Release, October 25, 1956).

~. Kenador, “January 8, 1947, Ait.*3(a). 61 Stat. (3)

2773, 2774, T.LA.S. 1606 (effective April 24, 1947).

Mexico, March 7, 1957, Art. VIT(a) [1957 | 8 U.S.T.

& O.LA. 295, 310, T.LAS. S776 Ceifective June 5,

1957) ; August 15, 1960, Art. 7(a) [1961 12U S.T.

& O.LA. 60,65, TALA.S. 4675 (effective provision-

‘ ally August 15,. 1960, definitively January 17,

1961). ae

Panama, March 31, 1949, Art. II] (a), 63 Stat. (3) °

2450, 2452, T.LA.S. 1932 (effective April 14,

a) ae Wee

SE Enel

Peru, December 27, 1946, ° Art. 3(a), 61 Stat. (3) -

2586, 2587, T.LAS. 1587 (effective Dee ember 2%,

1946).

Venezue la, August 1. 1953, ‘Art. 4(a), 19533) 4

“US.T. & O.LA, 1493, 1498, T.I. AS. 2813 (éffec-

_ tive August-22-1953). ma

All are substantially identical with the following Art.

3(a) Cot the Executive Agreement with Eeuador

(supra):

“In order ‘to prevent discriminatory practices

and to assure equality of treatment, both contrac t..

ing parties agrée- that: :

(a) Each of the contrac ting jairties may impose.

or permit to be imposed just and reasonable

charges for the use of public airperts and other

facilities under its control. Each of the contract-

ing. partjés agrees, however, that these charges

shall not be higher than would he paid for the

use of Such airports and -facilities by its national

aircraft engaged in similar international ‘serv-

ices.’ )

a STATEMENT

This case involves the legality under treaty and ex-

ecutive agreements of airport charges imposed upon

foreign air lines for use of the Miami International

_ Airport, the second largest international airport in the

United States in,terms of international traffic.

+. : e . id . ns

Plaintiffs, petitione rs here, aré ten foreign-airline~ 2

corporations of ten Latin American "aunties allen- ©.

gaged ‘in international air services: between Miami,

| Florida and points in. their own countries and else-

~ where. The defendant Board of County Commission- ,

ers of Dade County, F lorida, ae tifig as the Dade C ounty <<

- Port Authority, is the estes gh of Miami. International - :

Airport. r

The original ‘complaint "ee petitioners: and atin

was filed December 19, 1958, in the United States Dis--

trict Court for the Southern District of Florida.

In pertinent substance petitioners’ fifth amended.

complaint, filed October 21, 1960) CR. 148, 152-156)

alleged that their cause of action arose under:

_ «@

(4%) Article ofthe Convention with Other Govern-

ments Respecting International Civil Aviation, eom-

monly known ‘as the ¢ ‘hiewgo Convention, and: provid-

ing in section 15 as quoted above, p. 4;

(b) As to seven | petitions rs, ‘Air Transport Services :

Agreements hetween the United States and their re-

saute governments in which in stibstantially identi-

11. Aerovids Interamericanas de Panama, SA. APA) of ,Pan-

ama.

2. Aerolineas Peruanas, S.A. (APSA) of Peru.

3. Compania Eeuatoriana de Aviacion, S.A. (CEA of Eerrador.

4.. Empresa Guatemaltecade Aviacion, S.A. (Aviateea) of (uate: ‘

mala.

a Empresa de Transportes Aerovias Brasil, S.A. (REAL) of

‘Brazil. , :

oO 6. Guest of Aerovias Me ‘xico, SA. (Guest) of Mexico. °

; Lloyd Acreo Colombiano, (Lloyd) of Colombia. .

8. Rutas Aereas Nacionalés, S.A. (RANS A) of Venezuela.’

9. Transportes Aereos Nacionales, S.A; (TAN) of Honduras. ’

10. Lineas .Aereas de Nicaragua, S.A. (LANICA)-of Nieararrua.

al language (ex g. the Brazilian agreement) it is pro-

'videdthat: —

or “The charges Bch h etthees ot the contracting

parties impose ‘or permits to be imposed on the

- airline or airlinés designated by. the other cantract-. .

ing party for the use of airports and other- facilities

‘shall not be higher than would be paid for the use

of such airports and: facilities by its national air-

+ eraft.engaged in similar international services.’ :

The coniplaint further alleged and the trial court

found that the. respondent Port Authority operates the

Miami International Airport as a public airport open

to ‘‘public use’? within the méaning of Article 15 of

the Chicago Convention (R. 154, 394); that the Port

Authority collects charges and operational fees from

various users of ‘the airport, including plaintiffs and

-plaintiffs’ suppliers and the ameunts thereof are im-

posed and levied in part pursuant to Resolution No.

56 of the Port Authority adopted in September 1946

‘and amended in February 1960 (R. 154, 398): The

complaint further alleged and the Trial Court found

that the various charges and operational fees, includ-

ing indirect charges under coneession contracts of sup-

pliers of gasoline, oil, fuel and food, required’ by the’

Port ‘Authority to be paid by the plaintiffs for the use

of the facilities of the airport are substantially higher

than those exacted from the so-@alled Big Four airlines

* Art. IT] (1) Agreement with Brazil 61 Stat. 4121, 4126; TIAS

1900 (effective October 6, 1946).

-This article was adopted from, and is substantially identical with

Article 4(a) of the Form of Standard agreement incorporated in

the Final Act of the International Civil Aviation Conference signed

at Chicago on. December 7, 1944; (Proceedings of the International

Civil Aviation Conference (1944), p. 128 (Dept. of State Publica-

tion 2820) ).

that make stibstandially identical use of the same pub-

-lie airport-—Pan AmericansWorld Airwiys, Eastern

Airlines. Inc.. Delta: Air Lines. Ine. and National Alr-

lines, Inc.—and substantially higher thatf those that’

would be paid by Pan American and National, the two:

of, the fotrr that apernied United States national air-

craft /inte rniitional airline services Similar to those

inl White ‘h all plaintiffs engage CR. 154-155, 398; 399).

The comiplaint alleged CR. 157-198) and the Trial

‘Court found (R. 398) that the plaintiffs paytive types

of airport charges, four of which are not imposed _—

the Big Four atall, vive: -.

‘

First : $.50 passe nger terminal ¢ sharge

- Second : $2.00 per ton cargo terminal charge

Third; 5¢¢ indirect surcharge on all aviation: gaso-

-line and oil :

Fourth: 5°) indirect surcharge on all meals to be”

served aloft, and purchased at the airport.

and that the fifth type of charge, the landing charge?

paid by plaintiffs for uses of the airport was substai-

————tinlly higher than the lk anding charges which are. peur,

or would be paid-by Pan Auterican (he ‘reinafter called

Pan Am) and by Natioual for the same uses (R. 395-

399). : : : ‘

The complaint alleged (R, 154). and the triad court

found, that ‘all arene are engaged in *'similar in-

ternational air-services” to those of Pan Am and Na- |

7 tional (ie 395). ii

The complaint further alleged (Re 155- 156) and the ~

trial court found (R.3 93-3894) that sue h higher charges.

Nis

7 ol

ie = f Ss ial

to plaintiff-petitioners violate ( a) Article 15 of the

~ Chicago Convention (stpra, p. 4); and (b) the simi-

lar articles of the. Air Transport Services Agreements

cited above, applicable to seven.of the petitioner air-

lines. . eu

The amended complaint sought (R. 160 ) and the trial .

~ court issued (R, 437)-an injunction against the collec-.

tion of all such higher and extra charges far use of:

~ the airport. °

The amended complaint had prayed that the injune-

tion enjoin the collection of any higher landing charges

than the average charge pér landing that would be paid

by Pan Am and National for their aircraft engiéged in

‘sunilar international operations (R. 161). The injune-

tion of the trial court did not contain this requested

provision bit provided—

“The defendant is entitled, however, to charge -

these plaintiffs on a scheduled Hight basis rather

than.on an actual flight basis under the identical

provisions which are applied to Pan Am and Na-

“tional as stated in the landing charges section of a

their lease agreements. (R. 439, 440)

\ . ° ;

\ The-amended eSmplaint also sought (R. 158-160) re-

funds to each of the petitioners. of so much of the

amounts of airport charges paid by them within four

years: prior to the date of. the original complaint as

. exceeded the: amounts which they would have paid

under the Big Four seale of charges. The trial court, —

as an incident to the injunctive rélief, awarded money

Judgments for such claimed refunds, as shown by proof

“6

“ad

of record, exce pt as to the amounts el: time wd for thie a,

meal charges (R. 428, 429)."

“As of the date of the trial there were 12 foreign air-

~ dine plaintiffs in the consolidated ‘¢ ase: A thirteenth

plaintiff, Lineas sNereas Nicaragua, S.A. (LANIC A)

had been dismissed for proc cedural reasons (Re 383 ).

LANICA filed a new separate sit (RD 488); its ead

was decided similarly hy: the trial court CR. 537, 549)

and was’ consolidated with the others in the Court of

Appeals (R. 691).6 The trial court withheld any relief

for three Cuban aitline plaintiffs but retained jurisdie-

tion as to them (Ro 425). Henee the ten petitioners

were the only foreign. airlines before. the Court. of,

Appeals. oe

e .

‘

The defenses. of the respondent involve in part: the.

history, of the development of the airport. The facts

are stated substantially correctly by the opinic tis of the

District Court (R. 376 et gs ) and the Court of id

peal, CR. T85-T38: App. a pp aba).

The original ‘airport, a fraction of its present size,.

was owned by Pan American World Airways, Ine.

Other adjoining tracts, iniproved by Various airport

facilities were owned by the United States Government .

and included the; raES property known as thie ‘“Con-

vair property’? (App. p. 32)

In the latter part of ois the Pan Am airport, con- |

sisting of 2233 acres Was transferred to Dade 4 ‘ounty, |

Florida, in exchange for delivery to Pan Am of $2,500.

000 revenue bonds issued ‘by ‘Dade County, payable

ss The-plaintiff APSA, the Pornvian dirline, was awarded an in:

junction but no refund beeause it commenced: serviees into Miami. .

only 2!y months prior to the trial, whieh was after the dateoovered

by the proofs of recor Lon refunds

. @&

‘solely from the rev enues of the air rport. At about the

samé time in a three-way transaction between Eastern,,

Defense Ptant Corporation 6f the United States and

the newly created Dade County. Port. Authority ‘(re-

spondent herein), thé so-called Convair property was

acquired by the Port Authority: (App. p. da). “East-

ern supplied the purchase price of $700,000 paid to, the

* government, the Port Authority took title and leased

the property to Eastern for a long period of years for

’ Eastern’s exclusive use. Eastern’s rentals under that

_lease were to be er redited against the $ $700,000. which -

"was considered pre- -paid rent. Pan Am leased back

"from the Port Authority buildings for its exclusive -

‘use which it had just transferred to the Port Author-

ity. The County acting as Dade County Port Author-

ity took over the operation of the airport on January 1,

1946. (R..377)

a i) ‘ . “

Through divers gifts from the United States gov-

ernment and through some additionalpurchases of

fw tracts made-with funds provided by the United

‘States government, the original size of the menor’ in-

creased considerably through the vears'(R. 377).

On. Hetmnbes 11, 1945 the re spondent etitered into a

— lease ‘agreement for a term: of 20 vears commencing ”

January 1, 1946 with Pan Am for the rental of certain

property and facilities of: the. airport.’ Effective the

same date, the respondent executed three other lease

_ agreements identical in form with the PanAm lease, if

“3

“Stipulated Exhibit 18, pp. 16-17, [utiles ‘otherwise indicated

references to exhibits are to unprinted original exhibits].

® Stipulated Exhibit 2, parts privited at R. 632-647

of the ten foreign airline petitioners were ever.accordcd

_ the. opportunity of entering inte ‘such lease’ agree-,

Pas | ' a x

“| . 133 hs . on

et wat Mis te, cat ;

a ‘ . wot

° . j wae ae . ae a 7 .

with the following: Kastérm Airlines, Ing.. Nationa!

3 Airlines, Inc., und: Delta Airlines, “Ine, (R. 377). At

the’ time of the execution. of these leases.with the Big

Four P an Am was the. only & nite “States airline re Le .

dering international air services fr mr Miami ae STF),

National, another member of the Brg Four, began thy

ing internationally’ in 1947 betweth Miami and Havana,

‘Cuba (R. 377). ‘Because of the Cuban-situation, Na-

tional. early suspended service to Havana (R. 3895);

and very recently Pan Am also suspended such service.‘

The District Court found (R. 379-378) :

“On Februaky 27, 1946, a fifth lease siilciininias:

substantially identical in form with the Big Four

“leases was entered into between the defendant pes

~ Taca Airways Agency, hie., a service company for ™.

TACA,S.A.,, a foreign air carrier, domi¢iled. in the

_ Republic of Kl Salvador. aca used bie airport °

in its international operation mntil about F ‘ebruary

1948, when it-ceased permanently to operate its air

craft to Miami.. Its lease was shortly’ theres ifter

terminated hy rhutual agreement ‘of: the parties.

While it is possible that simil: ir lease, arrangements

were offered to other airlines.at that time, which air.

lines did not aecept them, there is, other than mere «as

sertion, no substratial evidence of record so showitle. ,

Certainly there is no. contention or evidence that any’

ments. Of course, all-of the petitione rs:began to fly

to Miami at much later dates, the first to arrive “being

the Brazilian airline Lie me caer f, know n as REAL, late

48."

The rental commitments Of the five airlines “ee

a) “s .

were as tyllows (Stipulate “d Exh. , 3):

Name of Airline Total | Monthly ftent

s he

e Pan An | mS . > $11,434.58 :

> Eastern” . . _, eee 1,097.75

.. National Gn, . 85.65

Delta -« ee - 493.36

TACA |... © 1838095

_.. The District Court found that these rentals are not

~ higher per square foot for the same type of space than

fentals paid by the plaintiffs (R. 396.597). While the

wig Four have since increased their rental areas sub-

¢ stantially and consequently pay considerably more rent

now than they did in 1946, some of the foreign airlines,

- none of whom were there in 1946 nor even-in 1947,’ to- .

day pay substantial rentals (Strpul: a ky XI, 1, pp.

io? OY: f ioe

A Bbrev iated N ame

of Petitioner | ‘Fotal ae

REAL (Bragl) . 8 956.9 ©

~ Guest ( Mexico) : 835.88

-? RANSA (Venezuela) oa 2,644.66

TAN (Honduras) , AA,631.73

It was not until 1955 that the third. United States

international airline, Braniff International Airways, .

_~ Braniff is comparatively small in-the international field —/

éarrying only 2°; of the Miami.international traffic,

whereas Pan-Am earriés 64% and National 3°. Bran-

iff serves only 6 countries in Latin America (five being

7 Date when each petitioner began service to Miami saleliitionl.

Airport set forth in Stipulated: Exhibit 26.

‘2

the homelands: of tive /petitioners Pan Am serves

all countries of Latin America CR. hha.

On October 1, 1946 the Port Authority, promulgated

its, Resolution No. 56° establishing the sehedule of

charges for all girlines other thin the big our CRS

652-654). It is the substantially higher charges pro

vided therein, and other related charges from Which

gthe Big Four are exe mipt, against which petitioners

~ complain, © These inipose Upon petitioners AVE re

charge per atreratt landing 100° higher th: an that

for the Big Four .CApp.. p. 27+. Wihile the © ourt of

“Appeals refers to these charges as the Port Author

ity’s “usual schedule of charges for landing tind other

aviation fees (App. A. p. ha) it should be noted that

such charges apply only to 25s;-of the total (domestic

and international) aireraft landings. his is beeanse

the preferredeBig ‘Four airlines make 75°, of the total ,

_ landings and do 67°, of the international business.”

As*pointe dl ont by the © ourtoof Appeals ( Ap ip, Ay Pp.

‘Oa) the two sets of-airport charges have been a-mi atte r

of dissatisfaction for many vears. Phe complaints men-

tioned by the Court of Appeals were not however baw

suits but merely protests to the Port Authority, itself

requesting equality of rates.” The only Jitigation

prior to, this was the Northeast Airlines suit in the

‘Florida courts in-w hich the complaint of Northeast, ‘1

‘domestie U.S. cairline against higher airport: charges

under the Federal Airport Act was sustained,’ and

the case later settled. | . vis

“App... p. 20a-2Zla. Stipulated Exhibit 13 showing a

various airlines. ® . ; ;

* Stipulated Exhibit: 28; Pleintiffs’ Exhibit 31. (attached Exh

); App., p. 2¢a ae 5

1 Stipulated Exhibit 19 ; . ao

1! Northeast Airlines. v. Walter Weiss. 113,80. 2d 884 (Fia. Dist

Ct. App. 1959) cert. denied. 116 So 20772 (Fla.

16 as

The Answer of the respondent to the fifth amended

complaint (R. 164) was regarded by the trial court.as

raising the following defenses CR. B86) : gees

That Resolution 6 does not Violate Artic le 15 of the

Chicago Convention or the corresponding provisions of

the various Bilateral Service Agreements; that the

Treaty in any event is not self-exeeuting; failure of

plaintiffs to exhaust administrative or Ginlomatic remi-

edies ; lack of equity ; laches and statute of, limitations ;

equitable estoppel and sh to recover monies vol-

untarily ae (Tt. 386).

Opinion of Trial C ourt.—After trial held December

6 and 7; 1960, the District Ceurt on July:3, 1961 filed |

its memorandum opinion. dated June 30, 1961 (Re3T3 ye

The Court after making the findings of fact above men-,

. tioned, ¢: are fully: analyzing the evidence and reviewing

the law, held that the enforcement of Resolution No.

56 and other extra charges of the responde nt imposed

upon the ts was 4 direct and unequivocal vio--

‘lation of Article 15 of the ¢ ‘hie (eo Convention. oon

393-394). ;

The District Court found that because of the scale

of charges fixed in the Big Four lease agr ‘eements (R.

632-634) the petitioners’ charges aforementioned were

sented higher than those paid or payable by the

Big Four for the same uses of the airport CR. 398-399).

The aircraft of all plaintiffs helow, except those of

" one plaintiff, were registered in countries which were at

all times here involved contracting States to the Chi-

cago Convention.. The one a was the aireraft

of APA of the Republic of. Panama which did not rati-

fy the treaty until 1960. However, the’ District Court

. 17

‘

-Gbserved that Panama had t Bilateral Air Tr: isport

Services Agreement with the. United States, effective

April 14, 1949, 63 Stat 2450, whieh in Artiele ofa)

thereof incorporates the form. agreement » adopted DS

the Final Act of the Chicago Convention prohibiting

the imposition on foreigw wireraft of airport charges

higher'than those imposed upon national aircraft: Phe

Distriet Court held that this Executive Agreement hid

equal dignity With a treaty requifing the samp relief

for APA as for the other foreign’ airline platnty: Ie.

30), "

‘The opinion also held that the other Bilateral Air

Transport Service Agreements, executed by the U hited

States and the nations of domicile of all the plaintiff:

except TAN of Honduras and Av infect a of Guatemala,’

although not individually ratified |bv the Senate, have

the same status as formal treaties 1 every respect, and -

that all conclusions with respect te the Chicago: Con-

vention shall be considered eqnallly applicable to the

corresponding provisions of the shid Serviee Agree

- ments (R? 390-3891), |

The Court rejected the defendant's attemp to jus-

tify the preferential treatment of Pan Amand Na-

tional, the two United St: ites “international operators

CR. 399-400) :

1. The contingent’ liability. assuméd by each of the

Big Four. under their 1945 leases to pay ‘possible oper-

ational detic ‘its: (a) terminated on July 1, 1947 and was

formally eliminated from the leases by simeridment on

a2 See page oe supra, n. 2.

18 Nicaragua, the homeland of “LANIC ‘A, the consolidated peti

tioner, was party to no bilateral agreement with the United States

“18

August: 8, 1950 (R.-399); (b) was meaningless even_

while in’force because, while para. 5(d) of Article Li

provided for increase in eharges to the Big Four" if

there was a deficit in operation of the airport, profits

‘over anid above a specified working capital fund were.

required to be paid to the Big Four (R.. 400).

. 2. Defendant’s contention that as large tenants with

large rental commitments, the Big Four were entitled

to special consideration, has no “merit because Na-

‘tional, under the first year of its lease paid only $85.93

per month, whereas R ANSA, one of the plaintiffs, now -

pays, $2,644.76. In any event, the rong test is not

‘treasonableness’’ nor ‘discrimination.’ The pre-

sc ibed requirement is that the aoe shall. be no

higher than’? (R. 400)..

‘The Court-also rejected (R. 401).the contention that

the treaty requirements were satisfied because Braniff,

a relatively small United States airline in international

-flight service, pays charges on the same basis as plain-

tiffs (citing Bacardi Corporation of America , Dom-

enech, 311 U.S. 150, me

* The lease agreements eaniuil a burden more apperent than

real since each provided (Art. I], para. 5, subpara. (d)) (App., p. >

1a) : ; 5 aa

‘*The Lessee and all other air transportation companies op-

erating on the airport shall within thirty days after. written

demand therefor, pay a special assessment sufficient dw make

up said deficit, which assessment shall be apportioned among

said companies ratably in aecordance with the number of

flights scheduled to land at the Airport during the fiscal vear

in which such deficit oceurred, as shown by sehedules filed

with the Civil Aeronautics Board.’’. (Emphasis supplied)

Thus, the Big Four alone were given an equity participating in-

terest in the profits of any year but assumed only to pay a portion

of the losses, proportionate to the ratio of scheduled flights,of each

to scheduled flights of all carriers during the deficit year.

“ae 1s, ee nl

The Court, citing copiously, rejected the contention

that the Treaty was not self-exeeuting @R. 402-411)

and on ample author ity re jected’ defendant's. other de-

fenses: failure to exhaust treaty grievance procedures

(R. 411-416) ; Jaches (R. 417-418) ; equitable estoppel |

(R. 418) ; volunt: ary payments CR, 419- 422); statute of

limitations (R. 423-424). a

Final decree was entered October 4, 1961 (CR. 437) -

~ . and order denying defendant’s motion for new trial

_ was,entered November 9, 1961 (R. 461). :

~The defendant noted its appeal (R. 470) and plain-—

tiffs noted their cross-appeal with respect to ‘~¢minor

points (R. 478-479).

‘Court of Appeals decision ——The two appeals were

consolidated on appeal (R. 691).- The opinion of the

Court of Appeals refers to the memorandum opinion of |

the Distriet Court in 197 F. Supp. 230 fora, detailed

. statement of the facts (R. 733; ANpp., p. 2a) but re-

states in some detail sao of the terms of the 20-vear

lease agreements with’ the Big Four (R. 736;. App.

‘pp. da-5a). The Court of Appeals reversed the trial

court on the following grounds:

"1. As a first ground, the Court held that, within the

meaning of Article 82 of the Convention (presumably *

relying -oir the last sentence of that Article) the Big

Four agreements are obligations ‘ine onsiste nt’? with

. the provisions of Article 15; that: hence Artie ‘le 15,

requiring that charges te plaintiffs’ foreign aircraft

‘not be higher’’ than charges to the Big Four national .

aircraft was not effective (apparently meaning ‘‘self-

executing’’) immediately because the United States, by

Article 82 ey undertook i in the future to secure the

termination of such ‘inconsistent”’ obligations (R.

742-743; App., pp. 10a-1la). |

2. As a second ground, the opinion appears to held

that the requirements of Article 15 are satisfied by a

showing that Braniff, a relatively small American air-

line flying internationally into six Latin American

countries since 1955, had been subjected to the same.

airport charges at Miami as we re the petitione rs : App..

p. 10a),

'3. As a third ground, the Court held that private

_ rights asserted by petitioners ‘tinclude..benefits from

most favored—natioy, glauses’? (App. p. 8a): it then

held that ander Bartram v. Robertson, 122>U3S. 116

* (1887) and other cases decided by this Court in 1888,

_the ‘‘most-favered-nation”’ clause whenused in —

of the United States was’ construed to include a‘ ‘con- —

dition” either express or: implied, that favers which

either party to the treaty grants to a third country,

shall not accrue to the other party to the treaty claim-

ing ‘‘most-favored-nation’’ rights if the favor to the

third country was granted for a valuable consideration.

‘It coneluded that, because the Big Four had furnished

: valuable consideration for their lease agreements, peti-

_ tieners cannot complain of the preferential airport

charges ( App., p. Ia).

_As to the bilateral agreements upon which seven of

the petitioners relied, and which the trial court. held -

clearly sustained their claimed right to equal treat-

ment independently of the Chicago Convention. (R.

390-391) the opinion was silent. Nevertheless, the

Court of Appeals entered its judgments reversing the

decrees of the trial court (R. 746, TAT; App. B, pp.

14a-17a). +

“

tebdied tee

Main object of any treaty. Sullivan v. Kidd, 254 U

. sponsibility involved.

REASONS FOR GRANTING THE WRIT

The adjudication of rights claimed under a treaty

of the Wnited States is alWays a grayewand sole ‘main duty

of the Federal judiciary. The honor of the Govern.

ment of the United States and of its people is involve a

(Chew Heong Vv. United States, 2 US. WO, hO: eel

Money Cases, 112 U.S. 580, 598) and the careful ob-

servation of the requirements of treaties with meticu-

lous regard to the duty of good faith is enforeed as

an essential to the promotion of amity among the peo.

ples of independent nations party thereto which is th

453, 439 ; Tucker ¥. Ale randroff, 183 0 S. 424, 437,

‘Phe Chicago Convention Re ‘specting Civil Aviation |

codities most of the pabhe inte roationid air daw of the

world to which air carriefs are subject amd practically

every nation of the worldexcept the US.S.R. isa sige

natory thereto. Beaumont, Legal Position of Air Car-

riers, 3 Int'l Law Quarterly (1950), pp. 360, 362.

Where, as here, ‘a federal cotirt is « “atled upon to con-

strue and apply a multi-lateral treaty: te whieh such a

large part of the World subseribes, it is Impossible to

over-emphasize the importane e of rigid adherence to

the basie rules of treaty interpretation re peated]y enun-

ciated by this ¢ ‘ourt with full regard: for the grave re-

= a

1, The Court Below Has So Far Departed From the Ordinary

Course of Judicial Proceedings and Has So Far Disregarded

the Decisions of This Court As To Require Exercise of the

Supervisory Powers of This Court.

- Recognizing the considerations. siiciiliais to the con-

anette and enforcement of international obligations,

this Court has, by application’ and unswerving reitera-

tion, established basic rules of construction of treaties: |

_.. (a) Treaties are to be interpreted according to the

natural, fair and ree ‘eived acceptation of the terms in

which they are eX pressed. Ware v. Hylton, 3 Dall. 199,

239-240; United States v. D’Auterive, 10 How. 609,

23; Geofroy v. Riggs, 133 U.S. 258,271; Santovin-

cenzoV. Egan, 284. U.S. ‘30, 40. .

A b) Treaties are to be construed, not gr white i

in a niggardly fashion, but in « broad and liberal spir it,

and if the language . iirly. admits of two interpreta-

tions, one restrictive of private rights claimed. there-

under, the other liberal and furthering private rights,

the more liberal construction’ is to be adopted to carry

out the apparent intention of the:parties and to seeure

equality and typi aye ‘ity. betweeit them. Giofroy v.

Riggs, 133 U.S. 258, 272; Jordan v. Tashiro, 278 U.S

123, 128-129; Macher ©. Alecandroff, 183 U.S. 424, 437;

Factor v. Leuliuheiner, 290 U.S, 276, 293-294 ; Bacardi

Corp. v. Domenech, 311 US. 150, 163.

of government particularly charged with their negotia-

tion and — are given great weight. C harl-

ton v. Kelly, 229 U.S. 447, 468; Sullivan v. Kidd, 254

U.S. 433, 442; Factor v. Laubenheimer, 290 U.S. 276,

294-295; Kolo rat x, Oregon. 336 U.S. 187, 194.

* This Court has always indicated scrupulous care to

see that these principles are observed by all the lower

courts.

—— . "ail

oe. A. The Court Below Has Disregarded All Principles of Treaty

Interpretation in Holding that Lease Agreements of the

Defendant Are “Inconsistent” With the Terms of the Chi-

cago Convention.

The particular portion of Article 15 of the Chicago

Convention, upon. which petitioners particularly rely;

provides (61 Stat. 1184): ys ih A ie

oy ‘Any charges that may be imposed or permitted

| + to be imposed by a contracting State for the use

of such airports and air-navigation facilities by

Ke the aircraft of any other contracting State shall

not be higher,” . .

* _* mae. * * ; * % x

“(b) As to gireratt engaged in seheduled in-

~ ternational air services, than those that Wweuld |

be paid’by its national aireratt engaged i simi-’

lar international air services.” ‘es ‘

The court below, as its first ground for reversing the

trial court, holds that the Big Four-lease agreements

fixing landing charges, inter alia, for airgraft of Pan

Am and National are obligations inconsistent with the

Chicago Convention within the meaning of ‘“ineonsist-

ent obligations’’ as that term is used in Article 82 of

the Convention; that hence Article 15 cannot be self-

executing insofar as it requires that landing charges

for aireraft of other nations shall’ not be higher’

than those paid by United States wational -aireratt +

(App.. p. 11a), :

( 1) The decision violates the plain and accepted meaning of words

uged in both the English and Spanish texts.

In so holding the decision below disregards the platr

and established meaning of a word common inthe Eng-

lish language and makes a mockery of the conscientious

attempt at international understanding. |

’

“ of é

— the mandate of the Treaty was eee and ©

clear, The plain purpese and effect of Article 15.0f

the treaty was to provide that the rates charged the’

‘aircraft of petitioners, subjects of Latin American

states, should be made to aecord With, or at least ‘‘not

be higher * * * than’’ the rates charged United States.

national aircraft (such as Pan Am). engaged in such

international air ‘services. The lease agreements of

each of the Big Four, including Pan American, with

—______the defendant did not-state_in-terms that tlfey should

be exclusive or that the rights to the landing charges

specified therein should be exclusive. On the contr ary.

the terms of the lease agreements indicate anticipation

on the part. of both parties to each agreement that;the

defendant would enter into ‘similar lease’ agreements,

~ with other air transport companies (App. C, p.-19a). |

The only specific, protection afforded Pan American.

or the others of the Big Four was that if better terms —

should be given to any other or subsequent lessee, the

same benetits should accrue to each, of them (App., Pp

19a). |

If-both the lease agreements and the Convention are. |,

given full effect, they are inno way repugnant; rather

the treaty merely provides for the removal of any dis-

crepaney in charges for similar’ airport uses as between

foreign aircraft and national aireraft engaged in sim- -

ilar -international services. Thud the terms of ‘the

treaty are addressed to attaining. perfect accord with

the. Big Four contracts. \

Y et the appellate court holds the-Big kK our contract’

en inconsistent” rs with the treaty provisions. This basic

8 °° When I use a word,’’ Humpty Dumpty said, it micas just

what I choose it to mean-—neither more nor less.’’ @harles 1.

Dodgson (Lewis Carroll) Through the Looking Glass, e:°5\

, ee

premise of, deci ‘ision is:stich a ‘ shheseMtieas 6 perve 4 of,

language as to lend added significance to- ‘the lower »°/

f 2,

court’s failure even to attempt to show how the lease

agreements are ‘inconsistent’ with the c onvention, ‘

Tn pertinent part Webster's QU nabridged Dictionary

(2d ed.) defines “inconsistent” “ats follows:

iS 7, Not consistent; inivompatibie, henna,

~~ inharmonieus; specif. of propositions, ideas, be-

liefs, ete. so related that both Cor all) sefnot he

' trne orcontaining parts so related; as (nifowsestent

statements ;.also, so related to something premised

or understood that jt canpot be true if what is thus

assumed is trues as an (eos stent eytie “lus aa.

'e o * ‘e ate ® > @&

5. W ithout material consisty hey or coherence ,

i. parts. , :

*Syn.—Contradictory, diséordant, dissonant, in-

coherent, discrepant. ive UNSISTENT, INCONGKUOUS,

INCOMPATIBLE, Exconstsye'st implies contr: addiction

or dise eTepaAne Vs INC ONGKU ots, lack of hh; AMO, are

-reciproeal unsinit: abilir, often verging on absurd:

ity; INCOMPATIBLE sfiggests positive opposition or

contrariety, as of Abjects or qt ities: Which ean-

not eocexists’ —/ : .

The Spanish and Frene h texts of the Convention, each’

of whieh are off equal.anthentieity. witht the) English

text (O1 Stat. 07 ) hoth use the word “incompatibles’’ s

for ‘inconsistent.’ throughout Artiele 82.0 Tncom- °

patibles in all st: midard Breneh- English and Spanish-

English. dictiongxies translates as the saime word in.

English.

(2) The decision overlooks legislative history showing that Article 82

. relates only to agreements of airlines with other States or na-

tionals of other States. :

The Court of- Appeals appareytly relied upon “the

third seritence of Article 82 for its theory of inconsist-_

ency of the Big Four contrasts. Legislative: history

reveals that in the latest draft of the third sentence

of Article 82 the description of the contemplated obli-

" gation on the day prior to final adoption read, as it had

through ‘numerous’ drafts, as follows (Doc. No. 454,

Proceedings of the International Civil Aviation Con-

ference (1944) Dept. of State neal In 2820, pp. 616,

' 639): .

"> «Tf an airline of any contracting State has entered

into such obligations «with any non-contracting

State “or with any airline of a non-contracting

State, the State.of which it is a national shall Jise

its best efforts to secure their termination forth-- .

with and shall in any event cause-then to be termi- |

nated as soon as such action can lawfully be taken

after the coming into force of this Cony ention. =

(Emphasis supplied)

The change to the final form by Doc, No, 467 ( Pro-

ceedings, pp. 642, 645) deleted the words ‘‘with any

non-contracting State ‘or with any airline of a non-

contracting State”, and inserted before the word ‘‘ob-

. ligations’’ the words ‘“‘any such inconsistent’. That

~no change of. meaning was ‘intended is shown by the

fact. that the change was adopted without comment in

the report of its committee meeting (Proceedings. /p.

654) plus the offici al Commentary on the Convention,

. Stating that the final language of Article 82 was merely

a ‘slightly condensed version’’ of that Article as e¢ar-

ried in prior drafts (Pro edings, pp. 1893-1394).

There is nothing i in the legislative history of ‘Articlé |

82 indicating that it was ever intended to ¢over ar-

or. ' . ‘

| seen 6

‘angements or obligatiotis between nationals of the

same State. Hence, even if. the Big Four contracts

eould, by any strete ‘hoof the imagination, be cons sidered

‘inconsistent’ with. the. Convention, they were jiot in-

tended to be covered by Article 82 uf the Convention.

Munic ‘ipal daw was to tuke care of such miaitters. ,

This is confirmed by the statement in Bim. ¢ ‘heng,

Law of International Air Transport (1962), yi. 141 :

‘“Mareover, under Article 82, if an airline ‘of

any contracting State has entered into agreements

or “understandings with a foreign State or a for-

eign airline which are inconsistent with the terms -

of the Chicago Convention, 1944. the ontractinig gy.

‘State of whic h the airline is a national shal) use

its best efforts to secure their termination forth.

with and shall in any event ‘cause thein to be ter

minated as soon as such action ean lawfully be

: taken. after the coming into force of this conven:

tion.’

' (3) Article is of the. Chicago . Convention is self-executing and is in

full- force and effect.

The Court of “Appeals acknowledged that the Cone,

vention was, in general, effective immedi: itely, but hel

that Articlé 15 was not fully effective (App. A, pp. 1a,

Ila), in other Avgrds t that Article 15 was not self-

‘exeE uting.

It is nothing new in United States international avia-

tion policy to provide ¢ equality of airport charges be-

tween national and foreign aircraft. Legislative his-

tory of the Chicagé Convention substantiates this

(App.-pp..31a-40a). The United St: ites mich earlier

fully subse ribed to the same: principle in the, Habana

2 ee a ae . iz

Convention of 1928 * and at least one prior Executive

Agreement executed in 1935." Beeause the. Habana

Convention was in full force and effect betore, and at

the tinie of, the negotiations of the Big, Four lease

agreements and the passage of er it is

immaterial that the Big Four lease agreements were

executed prior to the effective date of the Chicago Con-

‘vention (Cf. Court of Appeals op., App. p. 10a, m4).

The Departnient of State has always eonsidered Ar-

ticle 15 of the Chicago Convention to be self-executing

(App. p. Hla). The Civil Aeronautics Board considers

‘the Convention. to be, in full force and effect (App. p.

23a). s 4 ter 2 Fis

“Mr. Paul T. David, Alternative United States Rep

resentative to the International @ivil Aviation Organ-

ization, in an address to the Airport Operators Council

(of which Miami International Airport was a member)

4 :

.** Habana Convention,» February 20, 1928, Art. XXIV, 47 Stat

() 1901, 197 OP, SO No, 840. Cetfeetive as to the, United States

Angust 26, 1931) provided ; :

i» ‘The airératt of one contracting state engaged: in. interna

tional ecommerce with another contracting state shall pot: de

compeiled to pay other or higher chargés in airports or air

dromes open to the publie than would be paid by national

~ aireraft of the State visited, likewive engagd in international

commerce.’

In addition to the United States, Cuba, Ecuador, Guatemala, Hon.

‘duras, Nicaragua, Mexico, and Panama were parties thereto. The

United States and its citizens were bound by this treaty until after

the effective date of the Chicago Convention and until November

29, 1947, the effective date of its denunciation putsuant to Artitle

; 80 ‘of the Chieago Convention (61 Stat. 1180, 1203).

Air Navigation Arrangement with Great Britain, Aprii 5, 1935,

Net. te MF Stat. (2) 3720 (effective May 5.1935). (App. p. 33a)

ray

* on April 1, 1948, treated Article 15 of the Chieagro Con

‘vention as fully effective. stating: oe AG fe

“The Convention was ratified by the United.

States with the advice and consent of. the Senate.

Aceordingly, the provisions of the Convention aré

now the law of the United-States ...

ee .On the important matter of landing c ies Inge s

it. is $ provided thut a foreign aircraft operator

shall not be required to pay higher charges than a

_ national operator engaged in the same kind of

“serviecs....’ (David, ICAO Acfivities Aftecting

the United States Airports, Papers Presented at

The First Annual Meeting of the Airport Opers

tors Council, pp. 42-45) (Emphasis supplic d)

, Department of State publication entitled ** Aspect=

of United States Participation in International Civi!

Aviation’’ (i948) (State De ‘partmert Publication

p209) at-page 39 treats Article 15 as’ fully, effective,

* saying:

“Artiele. 15 of the Chicago Convention provides

that each contracting state shall aeeord ‘to the air-

eraft of other contracting states the sanie treat-

ment as aecorded its own | aireraft with reference

to charges and facilities in’eonnection with the use

=. of -publie airports, similar: provisions being found

in the Paris and Habana: Conventions. Habana

Convention, see State Department Treaty Series

840); Paris Convention, October 13, 1919, St tate De

partinent pubhieation 21. 1. ass ,

“The two volume “ Proceedings of the International

Civil Aviation Conference’. (1948) State Department

Publieation 2820, nowhere indicates that implementing

‘legislation by the United States was believed to he

needed to make the Convention. aully effective as to it:

The annual “Treaties in Force’’ publication of the

are

Department of State has continually listed the Chieago

Convention as a treaty in force. -.

The Convention has been. twice amended in minor >

Yvespects by the United States and upon each occasion

the United States Senate has advised ratification arid -

the Seigap has re-proclaimed the Treaty (June 14,

1954, - 8S USA. & O.LA. 179, each, Si96 (effective

Pieecnier 12, 1956); February 21, 1961, T.LA.S. 5170

. (effective July. 17, 1962) ).

As. pointed out by Judge Lieb (R. 410) tlie State

Department made tio request for implementing legis-

lation when’ seeking original ratification: (Re 410).

Neither did ‘it seek * such legislation when, 10 and “16

Years .after’ ratification. it sought amendment. Nor

does it appear that the Foreign Relations Committee

cof tre United States Senate has ever requested a drat’

of proposed legislation to implement the: treaty.

The interpretation ofthe Convention by the depart-

ments having responsibility 1s not binding on this Court

but is entitled to great weight (set authorities, supra,

BD. ce). :

decisions pertaining to’ the question of the Spit -@XeCH-

tion of treaties (R. 402-411).

The Court of Appeals reached its conclusion that

- Article 15 was not “fully effeetive’’ only through a.

strained and unreasoned vonstruction of Article 82)

of the Chicago ¢ ‘onvention.

a/ : ; e

Little ean be added to the distriet court opinion °

devoting. ten pages to careful analysis of the judicial

B. The Higher Rate Charged Braniff Airlines Cannot Be Ac-

cepted. As the Criterion Established By Article 15 of the

Chicago Convention. =

As a second ground of decision, the court below said

(App. A, p. 10a):

“Appellees, on the other hand, have at. all times

been afforded. uniform conditions. . Phe same

charges were made against them as against

Braniff, an American national flying internation-

ally. They weresa part of the same class. for the

purpose of charges and.the contracting airlines, .

‘ upon the expiration of the twenty year contracts.

will join that elass.”’

The courte thus. finding two gets of national stand

ards of charges to exist. has seized tmpen that of a

minute factor in the United States ain transport in

LUST EY and this contrived to bar petitioners fron. their

clear treaty right to equafity with the low, rates of the

inajor United States airimes that are petitioners Vprin:

cipal competitors.

This violates the State Department ‘s steadfast pol

lev of ‘insisting that. the standard contemplated, bs

-a treaty agreement for. ‘tnational™” treatment: means

firstielass treatment. In this eonnectian, see policy of

State. Department relative to treatment of American

Jews in foreign countries, rejecting the argument that

they are only entitled to second class treatment where

native Jews are given such treatment. Hackworth.,

Volunie IIL, Section 286. See also Limnone v. Radory

Constriction Corp, CN.Y.) 285 Ay. Div. Tol, 141

N.Y.S. 2d 3112 (1955). aff'd per curiam, PONY. 2d

671 (1956). ' ie *

al °

As pointed out by the trial court in its opinion (R.

401) this Court has-already answered a’ similar con-

~“<

‘tention made in Bacardi Corp. of America Vv. Domen-

ech, 311 U.S. 150. There Puerto Rico sought to.justify ©

its statutory violation of a treaty for protection of

trade marks by pointing out-that. its statute operated

to bar from treaty Benefits a certain class of its own

nationals as well as a class of citizens of Cuba. > This

Court held (p. 164): .

“Tn this view, the contention that a ratifying

State; on due registration ‘of a foreign mark in

accordance with the treaty, is not bound to protect:

the owner in ihe use of that mark provided it re-

fuses that protection to its own nationals neces-

sarily fails. Undoubtedly the Contracting States

are bound respec ‘tively to give to the nationals of

the other Contracting States the sanie rights and

remedies that are extended to their own nationals.

. When protection is sought for such marks a

ratifving State cannot escape the obligations of

the treaty and deny protection by tle simple de-

vice of embracing its own nationals in that denial.

That would make a mockery of the treaty.”’

The Preamble of the Convention states ( 61 Stat.

1180):

“Therefore, the lindersigned governments hav-

ing agreed on certain principles and arrangements _

in order that international eivil aviation may he

developed in a safe and orderly manner and that

international air transport services may be estab-

lished on the basis of equality of opportunity ana

operated soundly and economiéally ; ( Emphasis —

supplied)

- Article 44 states that among the aims and objectives

of the International Civil Aviation Organization set.

up by Part II of the Chieago Convention is to foster

the planning and development of international air.

transport so, as to;

‘Insure that the rights of contracting States

are fully respected and that’ eetry contractiny

State has a ‘fair opportunity to operate interwea

tional airlines.” (imphasis. supplied }

The contlict between the lower court’s interpretation

and the-plains purpose of the parties thus manifested

is emphasized by the facts of compention iti this ease.

Of the ten. Latin-Anie ‘rlean Sti ite: sre presente ‘dd by the

ten petitioners, Branitf tlies only to Brazil, Colombia.

Panatia, Eeuador, and Peru. The only Jother Latin-

"American, state it serves: is Paraguay. - On the, other

Tiand, Pan American serves every country® in. Latin

Americ ‘il. Braniff, ope rating inte tnationally only‘since

1955, carries but 2 per cent of the total internation: il

traffie at Miami. Pan American earries about 64 per

cent. The petitiorier airlines are all in direct competi

tion with Pan American, which at the Mianu airport

handles probably ten times the: traffic that is handled

by the largest of the petitioners. The competition of

Braniff is thas de mnimess thateof Pan American is

pervasiye, keen, and unremitting,

~ Read inthe light of these facts, and with due regard -

to the stated and agreed purpose of thé treaty to permit

every. Staté to establish air transport services on the

basis of “equality of opportunity,”’ the lower court's.

decision makes of Braniff a mere stalking horse an:

.. the covenant of Article 15, a transparent sham.

This role of Braniff is. contirmed hy the Port Au-

thority ’s contract with Braniff. approved January 16,

_ 1962, subséquent to the-trial ef this case and providing

Y ae: Braniff a reduction in airport charges retroactive

to July 1, 1961; Braniff was also guaranteed parity,

-— with any reduced rates that may ultimately he ob-

tained by petitioners in this ease CR. 700-703). Peti-

tioner’S motion ‘in-the District Court to add this eén

tract to.the reeord was denied by the Distriet Court

partly in reliance upon the Port Authority's stipula-

tion to forego reliance on the Braniff argument on

appeal CR. T19-TLes App. Dy pp. 29-3000. Wats

out acting on renewal of the same mrotion in the Court

of Appeals (2. 692-7191.) and respondent's ohjection>

» thereto ORT i21- 730), the Court of Appeals in its opin

ton net only ignores this new Braiitf contract. but

adepts defendant-s argument made. in breach of its”

atipal: ation ( App. p. la).

‘It is. submitted the lower court's holding that

conformity of petitioners’ Miami airport charges with —

the charges exacted of B ranitt satisties the requirement

of Article 15'so far de parts from the eourse of judicial

"procedure ¢ ‘harted hy this Court as to require. exe re Ise

_ of ‘the supervisory: powers of this Court.

eT Opinion of the Court Below With Respect to Most-

Favored-Nation Righis Rests on a Spurious Issue Wrongly

The lower court-attempts to lava faise foundation

for its eonelusion by asserting (App, p. Bal: *' The

private rights of appellees with whieh we are eon

cerned arise under the Treaty... amd imelude benetit~

from most favored nation clauses. - Suntorimecenco v.

Kaan, W935 1, 2S4 ti S30, "1

With this false premise, the Court then cites and

relies upon the decisions of this Court that gave effect

in. 1887 and 1888 to the traditional **eonditional’? most-

favored-nation pohey of the United States: Under the»

most- favored- nation clatise, the bene tit. of eoneessirons

er redue tious of duties mitde to a third state by eltives

contracting Power aeerned te the other’ contracting -

Power freely if treety made tt the third State; but they

averued to the other rontrae ting: Power only ii return

foran equivalent, if: the ‘~owere mide tothe third State

for a valuable consideration in the formvof a reeiproed|

eoneession or rednetion. See 3 Hackworth, Dieestoof

International Law, © 501, pp. ‘289-470. |

i — \

The premise is false and the eonelusien is erroneans

in daw,

(1) The aaa of rights under a -most-ftavored-nation clause i$ a

spurious issuc.

. The lower court's state ibenat thitit pe tittone rs’ asserted |

rights Qde rethe Treaty Ine rade benetits fren most

favored-nation clauses is “palpably false: Casu:; ud or

de tailed ‘serntiny of the Chieago Gonveufien will’

to dise lose in that Convention a single ‘most tf FN

nation” clause. "Phe petitaoners have: neve reontended

that it cont: dite mbit’.

Most-favored-nation clases were crpressly re qocted

in the drifting of the Conve ution. ~The fallacious ms

ture of the issie- attenipte: dti be injeeted by the court

below is apparenf from the lewis lative history of Artiels

1S upon Which petitioners rely. Reference to the legis.

Jative history of the Treaty is cof course a permissible:

ard to eons truction: iC nited States. vy. Teras, 162 US.

Oe Terrace ¥. cage aa US. 197, 2238: Newlsen v.

Johnson, 279 U.S, 47, 52 The United States draft of

a** Proposal of a Convention ou Air Navigation’’ sul:

- mitted to the’ International Civil ‘Suduatbes Conference’

at Chieago, Loe ‘ument No. 16, ineluded in Section 9a

_ provision that any fees or charges levied against air

—

“

SP 36

~~ craft in transit *‘shall not be greater than those imposed’

upon national aircraft or aircraft-of the most-favored.

nation’); and in section 22 there was included a provi-

sion tha) the scale of fees for landing of aircraft of one

contracting party at public airports of another con- -

tracting party *‘shall-be no greater than that applicable -

to national aircraft or to aircraft of the mostsfavored-

nation.’’ (Proceedings of.the International Civil Avia-

tion Conference, Chicago, Iinois, November-1-Decem- . °

ber 7, 1944, Department of State Publication.2820, Doe.

No. 16, pp. 554, 557, 561). The Commentary. oh the

Development of the Individual Articles of the Conven-

tion on International Civil Aviation (id.; pp. 1380,

1383-1384) adequately discloses the fate of the Enited

States proposal of **most-favored-nation”’ clauses: |

“Article 15, Airport and similar charges, repre-

sents a combination of Articles 9 and 22: of the

United States draft convention. The drafting com-

mittee was asked by the fifth meeting of Subcom-

mittee 2 to revise Article 22 in the light of the

instructions on Article 9 referred by the fourth

meeting, to make it clear that there ts no. obliga-

tion implied to treat domestic aircraft the same

as international, and to substitute a new phrase .

for ‘aireraft of the most-favored-nation.” The

committee was also asked to eliminate anv dupli- °

eation between the two articles. The drafting.

committee’s revision (Article 14, Doe. 414) was

discussed at the final meeting of the Subcommittee

and was referred back with four suggestions for

changes. The revised article (Article 15, Doe.

454) was considered by the December 2 meeting of

‘Suheommittees 1 and 2. in conjunction with Arti-..

cle 68. Tt was decided to delete subparagraph (b)

of the latter, and transfer the proviso to Article

15. The article as so revised was ineorporated in

Doenment 467. and was annreved at the joint meet-

Ree 37

_ ing.of Subcemmittees 1, : and 3 held Dec ember 4,

subject to a reservation by Cuba.?

The, States of w hie h petitioners ; are nationals were all,

represented by delegations to the Chicago . Conference

that. drafted the Chicago’ Convention, M: any of the

members of these delegations are still alive. The [oiver

court’s attempt to pervert the € onvention into a most-

favored-nation clause arrangement is an vaffront. te

their, intelligence. | ,

: (2) Even if the issue of a most-favored- nation clause were presented, -

the court below decided it erronegusly.

In 1923 the United States policy was ¢ hanged under

the guidance of Secretary of State Hughes.- He ex-—

_ plained the reason for the change in a letter t6 Sen: iter.

ee (5 Hackworth, ic ie st of) International daw,

». of 3): i :

7 8). It was the interest and fundamental aim of

: this country to secure equality of treatment-but-the

conditional most-favored-nation clause: was not in

fact productive of equality of treatment and could

not guarantee it... . 2 As we seek pledges from other

foreign countries that they will refrain from prae-

ticing discrimination, we must be ready to ‘give

such pledgess and history has shown that these

pledges can be made adequate pniv in terms of

unconditional most-favored-nation treatme wie

This hesid change in policy of the United States ix well-

recognized. John [. BilkCo. v. United States, 1049°2d

67, 71.74 COCLPLAL 1989) 5 Hackworth, Digest of”

International Law (1943) pp. 271-277; 1 Oppenhei im

(Lauterpac ht) International Law (8th ed. 1955) § 586,

pp. 972-973.

It follows that, even if the 1944 Chicago haloes ntion

included a most-favored-nation clause, and it does not,

. QS

the lower court’s reliance on-the decisions of this court

(Bartram v. Robertson, 122°U.S. 116, ete.) was mis-

placed in that it ignores forty years of history.

(3) Confusion of “most-favored-nation” clauses with a clause granting

“national” treatment is without {justification on any ground. —

This court has found no difficulty in distinguishing

bétween the meaning ofa ** most-favored-tiation”* clause

on the one hand (Rocca v: Thom pig 223 U.S. 317;

Santovincenzo v. Egan, 284 US. 30, ), 35) and a * nae.

tional’’ standard on the other (. ions v. Seattle, 265

USS. 332, 341; Nielsen v. Johnson, 279,U.S. 47; Bacardi

Corp. Vv. Domenech, 311 U.S. 150, 158, 164; Clark v.

Allen, 331 U.S. 503, 508). The ministries of the 3 Spates

whose airlines. are here petitioners are equi lly aware

of the distinetion and are quite aware of just. what the -

court below has done while purporting merely to con-"

strle the Chic ‘ago. Convention.

_ More than mere casual error of a court of emenls i is

here involved. ' The circumstances require ‘exercise of

this court’s supervisory jurisdi¢ tion.

D. The Big ‘Pour Furnished no Valuable Cuiialibapiitin for

& Their Preferential ms Charges Enjoyed Under Their

Lease Agreements . ; -

Pivotal to the determination of the lower court as.

to-the feigned most-favored tiation issue, and pervad-

ing the opinion generally as‘a vague background eyqui-

table consideration,” is the erroneous impression that

18 Contrary. to the implieations of the court of appeals opinion,

(App. A, p. 10a, and n. 4) “we do not.contena that the Convention

requires. that’ the Big Four ‘agreements be. set aside. Nor have we

at any time sought sueh relief. However, it seems clear that if the

_ Big Four contracts were violative of the provisions or policy of the

- Chieago Convention, they could not be sustained under Haver vy.

™

. a et 39°05

x . .

the Big -Four, including Pan Anie Tiean, ‘furnished to

the: Port Authority valuable consideration, for, the Vo-

year grant of low landing ¢ harges and exe mption from

other charges.” The Court of Appeals refers to the

Big ‘Four agree ‘ments as inposing on those lessees a

‘duty to the airport to sustain any losses (, App. A, pp. da,

do’, 18a). Tt also quotes a CLALA, letter that aceepts the 2

-mythieal duty as an “underwriting? (App. Ay p. 7,

note 3),

Even casual examination of the Big Four lease form

(R. 632-642) discloses that this “sustaining” or “tin

derwriting’ duty of the Big Pour wes illusory. The

contract imposed on each member of the Big, Pour a

burden as to oper: iting loskes no greater than was to

be-borne by every other ope ~~ landing atthe airport

during the year the ‘oper: iting deficit should be sus-

tained, : a

The provision ‘relied upow is Artiele T[, para. 5(d)

in the form of lease agreement with, each of the Big

Four. (R. 637): Side .

a : \

Yaker, 9 Wall. 32 (eited ‘by hes court of ap esi KApp.. A. 1, Wa.

on. 4))* but would vield ‘to the supervening exereise wot the treaty

. power, Addyston Pipe Nivel Co. Vv. United States, Ss oe Ste.

229, 230;. Louisville & Nashville Ro-Co. v. Mottley, 219 USS 467.

Highland v: Russe UW Car Co., 279 US, 253, 261: Norman vwoR. & O.

R. Co. Salk US. 240, 300. 310; Continental Bank v. Rock Island Ry.,

294 US. 648, 680.

% Of course, even if there was such consideration, this would’ not

be ground for writing inty the treat ¥ any exception with’ respeet to

the contracts of ne Big Four. . As this Court. said in Ti . Viable’

Isabella, & Wiggt. 1, 725, 0° We are nod at liberty to dispense with

any of the bie: Be, of requirements of the tre atyoor to take away

any qualification or integral part of any Stipulationvupon any

notion of equity or general convenience, or substantial Justice.”*

. 4 40°

‘*(d) In the event the revenues of the Authority

from sources other than the rents paig by air trans- .

portation companies for space at the Airport ex-

clusively occupied by them shall be insufficient in

any fiscal year to pay all operating expehses, such

deficit shall be carried: over into the budget as an

operating expense for the succeeding year. The

Lessee and all other air transportation companies '

* operating on the Airport shall, within-thirty days.

-. after written demand therefor, pay a special assess- » .

~ ment sufficient to make’ up said deficit, which as-

sessment shall be apportioned among said compu:

| G2 § nies ratably in accordance with -tue number of

flights scheduled to Jand ‘at the Airport during thit®

~ fiseal year in which such deficit oeeurted, .. .”’

In passing, it may be noted that this obligation was:

to continue only until the original $2,500,000 revenue:

bond issue delivered to Pan Am forits airport, was’

redeemed (Lease Agreement, Art. 27, R. 641) and, as

the trial court found, the obligation did terminate on®

' July 1, 1947, when the issue was. redeemed (R: 399).

Both courts overlooked that the ‘sustaining’? duty —

as to airport operating losses was not, by the lease

agreement. provisions, imposed on the Big Four alone.

On the contrary, as is evident from the words italicized

_ in the subparagraph quoted above, the meimbers of the

Big Four agreed.merely to ‘pay their fiir share of ‘any.

annual operatin eficit, a share equal té the portion of

the (total loss -réasonably: attributabe to the respective

use 6f the airport made by each of them. The prorationi,

of the loss was among each of the Big Four and ‘‘all

other air transportation companies operating on the.

Airport’® measured by the relative number of sched-

uled landings of each in the year of the deficit.

a : .

Each of the Big Four, by its lease agreement, con-

tracted to do no more than a non-contract airline would

~w in

Uh gy Sed Baa

have been required to do, viz; pay an additional

amount representmy the actual Gost of its own use of

the airport determined ona pro rata-basis.”’ Whether

or not the ratable portion of operating losses of a non-

contracting carrier would have to be out by ine

creased landing charges in Ge Second yea a Beealuve i

was not party to a-contract for ‘tassessment™> or by

voluntary payment of an assessnient of its ‘chare of the

defieit is irrelevant. Each member of the Big Four

was manifestly under no contractual duty to hear. more

than its proportionate share of the total oper ‘ating

losses, and their total shares would nat equal more than

the proportionate share of the total properly allocable

to them as a group. ‘The “valuable consideration’

‘founded on the assumption that the Big Faur were

bound to sustain any losses of the airport and were

‘underwriters’ sof the boned issue is obviously i myth.

The facts with respect tea this * valuable. considera-

tion” dise lose an additional absurdity in the lower

~eourt's reliance’ on the “anost-favered-hation’’ clause

ruling. > Cle arly, even the conditional *most- rg ied

nation” poliey vy of the United States in force until 192

recognized thatthe other contracting party should era

opportunity to furnish ** valiuableconsider: ation” equiv.

‘alent to that furnished by the fe wwored nition. |

‘Here, petitioners had no such opportui. ity.s As pre-

viously stated: supra, po 1 By Mone of the ten petitioners

= Tt is worth ‘noting that while the Big Pour were : veqeleed ti

_ bear only their respective shares of total los shes, the right te partiel-

pate in profits during the AG the &2.500,000 bond issuecwas un

redeemed, Was iimited to the’ Big Four and did) nat exte nd te te f

other airlines using the airport. . See opinion of Che trial court CR.

400).

Teeter °-

Was overating,-or authorized by the ¢ LAB. to ie

into Miami during any’of the period prior to July 1

», WAT, in Which Art. 1, para. 5(d) of the Big Four ledge

_ agreements remained in effect. Consequently, they

could never have offered or given to the Port Authority :

the same consideration (evemif the Airport. would have

been willing at any time during such period to have

entered into agreements’ with petitioners sinular to

those given the Big Four).

There was no evidence hata any of the petitioners,

after it obtained authority to operate into Miami was.

by: the Port Authority afforded opportunity to sign

‘lei SUS or contracts (either with a sustaining obligation

-or including any other valuable consideration) that

embodied the preferential landing charges enjoyed by

‘the Big Four. Indeed, when petitioners, at various

times did seek 10, 15 oy 20 year leases. of. space and

structures at the. airport, they were itt almost every

instance refused.*' For years; they were forced to rent

ona month-to-month or year-to-year basis.

The assumption that the preferential landing charges

to the Big Four may. on some vague equitable prin-

ciple, be ‘justified because they assnmed a sustaining”

burden in the airport’s early vears is nothing more

than a ce: refilly nurtured myth. — rere

E. Independently ot the Chicago Convention. the Bilateral

Agreements Confer Rights- ‘that en Support the _

Judgment of the District Court _ Rieraseneees eobienecs

- Entiely apart from the Convention, the Air Trans-.

port Seryices Agreements (commonly khown as ‘Bi

lateral Agreements” of “Bik terals’ ‘2m the cases of

= Deposition of Nie Piste of Dade Conuty Port A uthorit Vv pp.

r +4-46). Plaintiffs’ Exhibit 33

‘

seven of the ten petitioners confer omtthen: the right

to equality of airports chafges for foreign airlines here’

involved: and support the decree of the District Court

as to these seven. The trial court sb found (R. 391,

401, 426, 435) fees”,

These Keciitiye Agreeme nts executed over the vears

beginning in 1946, in substance follow the model Stand:

‘ard Agreement adopted at Chicage as part of the Final

Act of the Convention op, Liternational Aviation?

The bilaterals here involved and the. pertiment article:

onumber in eaeheare set out above: pp. a6. Bor eon

venience, that of the Kenaderian agreement, typteal of

those here in sit, is lene repeated. Ut provides:

‘*Anti¢tnS \

Sie

“Tn order, te prevent diserimitakery “practices

and te assure ‘equality of treatment, Doth contract

Ing parties agree that: ‘

Ca) Bach of the contracting partie amas iM

prose «97’ [reagent th bee PENA p sen d jus “Toa nedor toll able

charges for the use of publi airports and other

facilities inder its -eantrol bach oof the cortraect-

Wie parties, agrees, however. thatothese eharges

shall net be higher than world be paid: for the tise

of such airports ahd facilities be it\ national air

vraft -efgaged® in similar international serv fees?

If anything, this clause is more specific than Article 15

’ f of the. Chicago Convention. It requires’ that the’

charges amiposed tn the aumpert= af each nation on

__.._the-aircratt of the other-be: Li" just; (2) reasonable;

and (3) equal (ise, hot “higher than would be: paid”

2? Proveddings of the International Civil Aviation Con terenes

. s

Chicago. Ulinets, Nove 1-Dees 7. T44. Deparfinent of Stare Pub

/ lication No. 2820, po 12s. . ; me

by “its national aircraft engaged in similar interna-

fional services.” Kae h of the bilaterals applies. to the

Miami International Airport, as appears trom the

route annexes of each. specifving airline routes thar

-inelude as the United States. terminal point, Miami,

Florida (which can be served only through the Mian

International Airport). As

‘The Court of Appeals does not even acknowledge the

-existense¢ of the: Air Transport: Services Agreements in -

its Opinion excepit to mention that the Panama Agree-

ment ‘‘for the purpose of this case, is as effective as

op the Chieago Convention.” (App. aA. p. 2a). The

omission of the Court of Appeals te deal with the -

\ bilateral ezreements was, of course, inadvertent aud

the result of aversight. Llowever. there are certain

distinguishing characteristics of the bilateral agree

ments that cannot be overlooked: —

(1) The Bilateral Agreements have equal dignity with formal treaties.

+» The bilateral agreements are all classitied by the:

State Department as Treaties in Force. The partie:

in the case at bar treated the Bilateral Agreements a-

having equal status with the Chicego Convention (av.

83-84). The District Court held that the Dilaterals are

compacts haying dignit’, equal in every respeet with

that of formal treaties. Ceiting United States vo. Pink,

3t5 U.S. PO: Lnited States \. Belinont, 207 UGS. oe 4.

doO-O3L: State ‘of Peussia \. National City Bank, oO F,

fete th etackice. * Uy” RP EN S: Culonia! Air Lines, Ine, \. beets, ST; i

Supp. 242) CR. 390-391). |

Attorney General Tom ©. Clark on June TS, 1946,

rendered an opinion to the Seeretary of State sustain-

2" ing the validity and binding effect of Commercial Avia-

tion Agreements (the Bilaterals) between the United -

States and other nations. 40 Op. ALG.-451. He held

them clearly contemplated and authorized by the Civ!

Aeronautics Aet of 193s. :

(23 .The bilateral agreements contain no weoviaion comparable to

Article 82 of the Chicago Convention.. .

The. bilateral obligations as*te national treatment at

the airports of each country are cunequiveeal obliga

tions containing no provisions sueb as Article 82 of the

Chicago Convention upon whieh the Court of Appeals

pitched its argument that Article 15 of the Convention

_ Was unenforceable. The ‘petitioners grounded ther

actions on the bilaterals as well as on Article 15 of the

Chicago Convention CR. 155-1565. 0 The’ District Court

held that airlines ‘of, the nations that have. sueh bilat.

eFals had a cause of action and were entitled te injune

tion and refunds under th inde pendent. force of thee

bilaterals as well as under the Clneage Convention (R

891, 401, 4260. The opinion of theeourt of appeais

stated above, t fails to deal-owith the Issue,

It is important te note that the same typeof Exeen

tive Agreement pertaining te aif transport service

has been executed with HY new countries as the

expanding reeeh of Uiited States airline enterprise

required. These embodied the same stipulation as te

reciprocal equal airport charges. Presiumably, the State

Department was thereby indicating to the other parties

its continued adherence to the prineiple of uneondi

tional equality of airport charges with those made te

national aireraft: Some of the bilateral— were nege-

tiated at the time of the Convention at Chicago and —

several, ineluding two invelved in this: ease became

effective even before the effective date of the Chieage

Convention: Brazil, ¢ffeetive Octaber 6, M6: Pern,

7 3

4h} °

effective December 27, 1946. Re nicding the bilaterals

as binding and etfective, the State Departme nt, on be-

half of United States airlines has inveked and’ will

continue to Invoke the bilaterals, as well as the Chicago

Convention, for the protection’ of American airlines

beth in Latin America and elsewhere.

As noted above, the bilaterals contain no provision

even. remotely resembling Article 82 of the Chieago

Convention, or any other? provision upon which the

court of appeals could rely as ai avenue for escape by--

the Port Authority from the duty of eqaalctreatment .

that they impose. ;

Whatever the reason for the omission of the eourt

of appeals to deal with the point, it is submitted that

when a court of the United States dénies claimed rights

-of nationals of seven countries under international

agreements, it'owes to the United States as well as the

foreign nations the courtesy of niore than its mere P apse

- dirit—* He versed”

2. The Issues Here Involved are of Great and Continuing

Importance to the Petitioners, to Their States and to the :

United States. ‘

The basic right to equality of airport. charges. in

international civil aviation is nothing new. Tt has:

long been regarded ‘as ao fundamental, principle in

International air transportation. Tt was embodied in

the Paris Convention of 1919 ¢ App. Ey pp. 32a-332)

and Onequivecally restated in the Habana Cor vention

of 1928 (supra, p28, ni. 16). This hot surprising that

the Chicage Convention again reenacted this pr ineiple

The States of linkin America ennnot, of course, hye

regsonab ly expected to accep the lower court's deci:

* -

sion as the ultimate resolution of the issue here, As

the necessary result-of the decision, and so long-as it

-eontrols, their airlines wilk continue te pay ampert

. charges in the United States that are ‘Is times higher

than those paid by their United States airline eom-

petitors. Ninety per eent of all trattie between Laatin

oe and the United States moves through the

Miami gateway, . Under the! preferential system of,

Mian pane charges now sanctioned and perpety

ated by the court of appeals deeision, the average

charge for aireraft of the Tnited St ates airtines Pan

mi. is ¥4.05 per dandime: for nireratt of petitioners,

$71.70 per landing (App. ©, p. Zia)

If these cire “umistances remain unch: Wiged, the ve an

serve only asca continuing source of Eriction in Latin-

American relations. -International air transpert, is su

Import: int fo the economic life of the majority of Latin

“Ameriean States that in many instances their airlines

are owned in Whole or in part by their governments.

* History repeats itself. This case is reminiscent’ of

substantially the same yp srroblem presented: half a cen:

tury age with respect: to vail eareiers i the St. Louis”

Terminal eases) There this Court's deeree reqtired |

that all existing or future carrie Is be permitted -to Use

% thie facilities of “the terminal Company on a _plane of

equahity. with all other carricrs atid. af they so desl,

he pe wmitted to acquire joint ownership of the te rial

nal company with the ether proprietary carriers, |

“The multi-lateral Chicago ¢ ‘onvention now has

contracting States, Et was proclaimed by the State

Departme nit spokes inc before the Senate F arejon

Relations 4 ‘ormmmittee as bemge ac ‘constitution’: for

. e

United States Vo Nte Lovwis Terminal ,woyy S. 385. 411

Moen: Sion.

the postwar air world’ CAppok, p. S4ad. Theease also -

involves the first eecasion for vindieation tn a United

States court of Executive Air “Transport Services

Agreements with the United States. The United States

has exeented 40 similar bilateral agreements of which

seven are here involved. ‘They are given full foree and

effect by the district court to grant petitioners’ reliet ;

in the court of appeals they are completely ignored and

petitioners’ bilateral treaty rights are nullified without

the slightest. pretext ef reason, .

~ Thécease is not without importance to dhe larger in-

terests-of the United States. It has an interest in the

continuing growth of it imternational airlines ‘as we'd

as the promotion of better understanding: among’ the

peoples of the world. a ets .

CONCLUSION

It ix respectfully submitted that writ of eertiorar :

_ should isste in this case to creview the decisions of the

Court of Appeals for the Fifth Cireuit in these cases.

; . Pia ScHLELT,

1757 K Street, NW.

Wash geton 6. De OL.

. J. Leo MeSuaxe me

l ewe 740 Ingraham Bldg. ¥

Miam 32, Florida

‘ : . Wirtiam DPD. DoxNnenny

‘Washington b, 2 i

November, 1962 > i ase :

. ° * 7

“_._ 1695 K Street NW

APPENDIX A

Opinion of United States Court of oe Fifth Circuit

IN THE

UNITED STATES COURT OF, APPEALS «

FOR THE FIFTH CIRCUIT

os s

*-No. 19476 >: ‘

Boarp oF County Commissioners or Dape County, Forma,

acting as the Dane Country Porr Avtnoriry, Appellant,..

’ , Vv.

AEROVIAS INTERAMERICANAS DE Panama, et al., Appellees.

. . ”

(AND REVERSE TITLE)

No. 196382

Boarp or Cov UyTyComstusst NERS OF Dapr County, Fiori,

acting” as “the Dave CoUxty Porr Atruontry, Appellant,

s Vv.

Lingas Areas pe Nacanacuva, S. A., Appellee.

cae REVERSE TITLR)

Appeals ‘from the United States District Court for the

Southern District of Florida

: Oe (August 31, 1962)

(OPINION | «¢@

Before TUTTLE, Chief Judge, BELL, Circuit Judge and

Pe *: ARSWELL, District t Jude

BELL, Cireuit Judge: These consolidated appeals are

from final decrees of the District Court holding that ap-

pellant may not charge the foreign airlines ‘according’ ‘to

‘its usual schedule of charges for landiny and other aviation:

fees and tor fees*paid concessionaires by the appellees and

_—

2a Cs >

in turn paid to appellant, but must give them the*henefit of .

lower charges to which four others are entitled by virthe —

‘of contracts. The decrees also awarded judgments for the

amount of ‘the excess charges paid by appellees and their

suppliers’ since 1955, together with interest.’

Appellant owns and Gperates - -the Miami International

airport. Appelleés.are ten Latin American aipline corpora-

tions and have made substantial use of the airport facilities —

in international operations during recent. years. © Their

cause of action ‘is premised on Article 15 of the provisions

of the Convention on International Civil Aviation; the

‘*Chieago Con¥ention’’, which became effective as a treaty

‘between the ratifying states on April 4, 1947. 61 Stat. 1180.

This treaty was ratified by the United States of America

and by, among others, tlie countries of which appellees ar®

nationals, The Republic of Panama ‘did not ratify the

_ treaty until January 18, 1960, but. appellee Aerovias Inter-

americans de Panama, S.A; relies on an executive agree-

ment between the Republic of Panama and. this country

which. became eifective April 14, 1949 and which, for the

purpose of this case, is as effective as the Chicago Con-

vention. ° :

That Convention prov ided, J in setting out principles uff

‘arrangements for the development of International Civil

Aviation on the Basis of equality of opportunity, as fol-

lows: (Article 15) "4 » . as

“*Any charges that-may be imposed -.or permitted,

_to be imposed by a contracting State for the use of

- such airports and air navigation facilities hy the fair-.

craft or any other contracting State shall nét be higher.

——— ¢

1The memorandum opinion of the District Court in “ease No.

19.476 is reported in 197 F. Sup. 230 to which reference is made

for a detailed statement of the facts vere involved. The court en-

tered finding of facts. and conclusions of law in ease No. 19,632.

The cases were consolidated for consideration by this court. o

: ° . ' é

(a) As to aireratt not engaged in schedufed in

ternational air services, than these that would’ he

paid by its national aircraft of the same elass en

abn ‘ ° ee ._

“w gade.in similar operations, and _

os (b) As to _vireralt engaged ino scheduled inter:

natiotial air services,’.than those that would be

paid by its national aireraty engaged | in similar .

“*

international air services, me

The District Court construed this article in a favered

bd a . . . ‘

nation clause concept, but refused’ to eonsider’ it!on the

‘hasis of determining the presence or absence of diserimina,

tion. It was.treated as being an absolute: requirement. to

the end that charges against appellees could be no higher

than. the lowest charges or rates paid by American na

tionals, no matter what the classification er cireuinstances.

We disagree and reverse, aa

The. dispute cénters around the fact that two ccparate

schedules df charges were effective at the airport ; one

schedule being based on contracts made at or near the time

‘the airport opened for business in 1946, and the other

being based on Resolution No. 56. of appellant setting

charges applicable. to all aircraft except thiése of the com:

panies Who entered into the contracts. The facts are not

in dispute and our decision turns on the construction of

the Chicago Converition treaty. in light of the undisputed:

facts. tae :

At the close of World War Tl, Pan Ame rican Airways,

Ine. owned the 36th Street Airport, near the City of Miami

in Dade County, Florida, embracing 223 acrés of land. The.

United States of America® owned the adjacent Convair prop

erty consisting of 102 acres and both tfacts were improved

by variovs airport facilities. Eastern Airlines, Ine, Delta.

C&S Ainiines, Inc. and National Airlines, Ine. were using °

the facilities of the 36th Street Airport under an-arrange-

4a.

ment with Pan American Only Pan American was flying

internationally. a

The Board .of County Comatianionnes of Dade County

was nuthorised by the Florida Legislature in 1945 to estab-

lish airport facilities to be financed by ad valorem taxation.

on property within the county, and by revewue bonds pay-

able solely- from’ the revenues of any facility, established.

Pursuant to this statutory. authority, the county comnris- .

sioners acting as the Dad» County Port Authority issued

twenty year \bonds in the principal amount of $2,500,000

payable onl trom anticipated revenues. These were ex-

2. °

‘changed with n American Airlines, Ine. for a deed to °

: the 36th Street. irpogt. Appellant simultamfpusly borrow-

*s ing $700,090 from Eastern ‘Airlines with which to pur-

chase the Convair property. This vested title to an exist-

ing 325 acre airport in appellant with’ go cash outlay. At

Am n and Kastern whereunder Pan American leased

a portioM@of: the airport for the term of the revenue bonds

‘and Eastern leased the Convair property for the saine

‘term. Pan American and Kastern, because of the indebted-

ness of the ‘Authority, were committeed to the airport from —

the beginning but leases were ‘also tendered io other air-

lines at'the same time. National, Delta, and Taca Airwi ays

Ageniy, Inc., a corporation of El Salvador engage in ‘in-:

ternational service, all accepted identiéal tw enty year leases

same. time“a appellant entéred into contracts with Pan |

with the amount of rent depending on. space taken. Each ._

lease contract provided, that appellant and the lessees’

would share in the profits of the airport, and sustain it in

losses for ds long as appellant desired te be so sustained.

The contracts required appellants to provide without. ‘ex-

pense to lessegs. the necessary facilities for governmental

_ agencies such as the weather bureau, health serv ites, and

immigratfon and ‘customs. Each lease set forth the same

‘schedule of aviation fees tobe charged, based on a gradu-

ated seale for flights Scheduled, plus landing weight of. the

va -.

aircraft. The lessees and their suppliers were not to be-

otherwise charged for the use of the airport facilities: Hach

contract provided that the Authority could) redeem. thé

bond issue at any-time and in sueh event the ‘provision of

the contracts providing for the sharing of profits and losses

would. become ineffective.s Hach lessee had the option ‘of :

continuing afider the éontracts, sive tor that part, or of

entering into.a new ten year lease calling-for rentals and

airport charges comparvaple to those charged by _compara-

‘ble United States airports.

Appélkint commenced ope ‘rations at theairport on March

23, 1946 with a small staff, offering domestic service only.”

A schedule of charges’ applicable ta airlines who did not’

commit themselves to the long term contract was publi: zed

at that time. On September 24, 156 appellant adopted

‘Resolution No. 56 setting forth a permanent schedule of

charges applic: able to all aireraft using the facilities exeept

aircraft of the lessees under the contvacts:” Appellees com-

menced using the facilities thereafter, one as carly ax 194s, ,

. and another as late as 1960, and Were charged on the basis

of Resolution No. 56. These charges exceeded those paid

by the lessees in respeet to landing charges: atid ineluded*

the folowing, none of whieh were required ot the twenty

year lessees: passenger terminal charges, cargo ‘terminal

charges, and concessionaire charges ‘se In yposed on flieesup-

segs mand passed on to appelleés, base@on five per cent of

he gross sales price of xasoline, oil and, meals purchi ised

by appellees. ae ay . ©

The growth of the airport way rapid and after little more!

thar a year of operations appe lant redeeme d the original

bond issue with part of the procecds of anew issue, “Fh.

profit and Jossssharing arrangement under thi-contracts

was terminated, and the five contfacting. airtines elected to

continue thé use of the facilities f6r the - remaining almost ,

eighteen years under ‘the, favorable schedule of charges

e : F

. - .

* * yw

‘4 rer ‘ e : P . :

$ 9 : ‘

; , ¥ . -

-* f : P . ‘

’

ee ee . : peu ae

under the contracts, rather than entering into new ten year

leases whereunder the charges would. have been inereased.

, The facilities of the airport were greatly expanded and

finally in 1955 if was moved. toa new location. The con-

- tracts of the five or iginal lessee airlines: will expire Decem-

ber 31, 1965. In the’meantimé, Taca terminated services

to Miami and its contract was mutually cancelled.

‘The background facts demonstrate that various airlines,

other thah those’ having the original contracts, have long

bean dissatisfied with the charges. under Resolution No, 56

- in view of the lower charges under the contracts. For ex-

‘ ample, Pan American on behalf of its subsidiary corpora-

tion, Cubana de Aviacion S.A., sought to-obtain gor it the

rates afforded to Pan American: under the contract. The

matter was arbitrated and the contfhtion. of Pan American

‘for Cubana was rejected.’

Complaints’ ag@inst the charges filed by: KLM Reyal

Duteh Airlines and British South American Airways, Inc..”

: in 1949 were denied, as well as the’ complaint filed in. 1953

_ by Braniff International Airways, Inc.,-a United ‘States

airline flying internationally. Braniff has paid the same

charges as those paid by appellees, all under the prov jsions

of —— No. 56. = are eager in peapeimseratr be op-

now geri in ‘tabbenationnd operations. National Was |

for some years but discontinued after the ¢ ‘uban upheaval.

+. Some of appellees sotght relief, to no avail, from the

Civil Aeronautics Board and the Civil Aeronauties Author-

ity in 1954. Their claim then was -based on discrimination .

which she administrator of Civil ‘Aeronautics noted would

9? Ga ane seca

; ? Cubana, along with two other Cuban airlines were plaintiffs in

On sy this action but the court granted no direct relief to any ofpthe three

e : because of the ‘‘ rapidly changing politieal situation in t pics

. of Quba,”’

simply retaining jurisdiction as.to the threefsy

’

terminate with the expin ation ef the twenty: vear cOutraets—

——Decembe roOl, 19652

.\ \ *e . * ° : .

Thi “administrator: of (vil Acronaut.es, in pertinent, part, re-

s oi ‘

piled:

“In your letter it is’ alleged that the Dade County Port

Authority, Which owns and operates the Miami International

Airport, is unjustly, discriminating against all eatriers using

that airport other’th: aun, Pan American World Airways, Kastern

Afr Lines,.Delta © & S Air lines, and National Airlines (here-

inafter referred to as the ‘sustaihing airlmes’). because of the

differences in the rates and charges imposed’agains: those four

‘arriers and those imposed against all ofher carriers for the

use of the landing area. and other public use areas and facili-

ties of the airport. * * * .

ee # the diferent: il in rates and charges imposed against

the sustaining airlines for the use of the | landing area and other

publie use. areas and fieilities of the Miami Ite ‘rnational. Air-

port-‘and-those- imposed against all other carriers for use of

such areas a®d facilitiés doesnot eonstittite unjust discrimina-

tion against stwh ather carriers, within the meaning, of the

provisions‘of the grant agreements, between the Dade Conaty

Port. Authorit® and ‘this Ageney. which obligate the Pért -

Authority to operate the airport for the use and benefit ot/the

public, on fair and veasonable terms and without unjust dis-

erimniation. *** © oe

“The rates and charges nd being | imposed against. the

sustain’ ug airlines are thgse that were fixed’ by agreements

entered into between the Port Authority. and those airlines in

1945. In view-of the pertinent cireumstanees prevailing at

that | time. it is the view of this Ageney that the Port Afithority

acted reasonably in entering into sueh agreements, which, by

their terms, were binding. on the parties thereto for a term

of 20.vears... |

**In reaching this conclusion we have ines into cohside Ta:

tion, among other things, (1) the provision in each of the.

agreements which, in effect, constituted an underwriting of

- the honds then being issued by the Port Authority fo finance

the acquisition’ from Pan American Airways of the Miami

‘airport; (2) the fact that in order to mi: arket the bonds it was

necessary at that time. for the Authority to ‘Provide gome type-

of security other than the then anticipated but unknown

revenues, suvh as was provided. i in the underwriting of the

€ «6

Ce EE We 2d gh ca oe

* The private rights of appellees with which we are con-

‘cerned arise under the Treaty, Edye v. Robertson, 1834,

112 U.S. 580,59 S.C t: 247, 28.L, Ed. 798, and include. bene-

fits from most fav ored nation clauses, , Santovincenzo v.

a ee

se bond issue by the cidinininee aisle. Feat 52 “the fact that the

schédu of landing’ fees and charges preseribed in the origifal~

ements with the sustaining airlines compares favor-

leasé ag

ue ably with landing fees and charges at other comparable air-

ports in effect at the time; (4) the fact that similar agree-

ments were offéred to all other carriers then operating on the

Miami Iriternational’ Airport, antl (5) the facet that it was not

‘unusual in 1945 for an airport owner ot enter into dgreements

with airlinés providing for the leasing of space on the airport

and the use of the landing facilities at preseribed ‘rentals and

tanding fees. and charges, for terms of 15, 20.and 25 years. * * *

‘‘Our study of the matter has also disclosed that the rates

and charges now being imposed against all carriers-and_ their

suppliers, other than the sustaining agrlines and their «sup-

pliers, compare favorably with the rates and charges now being

imposed at other comparable airports. It is-our opinion that

such rates and charges are fair and reasonable in the light of

all-pertinent_circumstance® now prev ailing.

“The unjust discrimination prov isions incorporated i in frant

agreements pursuant to the Federal Airport Act, in our opin®

jon, do not requife that the airpert owner refrain from charg-

“ing users of the airport, rates higher than those to'whieh other

users of the same.class are entitled under previously executed

contraéts which were reasonable when executed (see Trans

_ World Airlines, Inc. v. weg and County of San Francisco,

U.S.C. A*9th, Dee. 19, 1955, 228 F. (2d) 473, 4 Avi. 17, 866.

cert..den. April 30, 1956). * * *—

- ‘Insofar as coneerns the landing fees ad charges to be im-

| posed against the sustaining airliies after December 31/1965;

it is to be.noted that the 1955 amendatory agreements Between

those airlines and the Port Authority which revised and ex-

tended the 1945 agreements, provide that. such landing fees’ :

and charges will be renegotiated six months prior to the ex-

iration of the original terms of the agreements, in the light

of the éireumstanées then prevailing. Under this provision, it

appears that the Port Authority will. be in a, position to nego-

tiate landing fees and charzes to be imposed against the sus-

taining airlines after ‘December 31, 1965,-that are then im

pontine 2: ‘ ° 924.

Faan, 1931, 284 0. s. 86, 52 S.Ct. ST, 76.1. Ed: ft. “And

in construing the treaty. as other contracts, we give con |

sideration to the intent of the patties se is to carry out

their manifest purpose, Waright vo Menke !. 1900, 190 ES.

40, 25-S. Ct. 784,47 Le Bd. O48 -The Yuku. 5 Cir, 1934, 71

Pe 2d 635, cert. den, 293 0 S.A80, 55-8. Cr. Tog, TH L. Kid.

HS42.4@ Hidalgo Co County Water Control & Tm: Dist.

Hedrick, 5 Cir: 1955, 226 F.2d 1. We 2 proceed also WmIer

the admonition that where a tre aty admits of two construe

tions, one réstrictive of and the other. favorable to-rights -

claimed underyt, the latter is to be preferted, DiG, Uhr

v. Rigas, IS U.S. 258, 10)8. Ci. 295, 83. Kd. 642;

Pirie \. Seattle, 1924, 265 Us. S. 332, 44:S.-(¢. O15, 68

L. Ed. JON; Jordan v.- Tashiro. 1928, 278 U.S. 125, 49S,

Ct. 47, 7 io L. Kid. 214; and gene (' he of Tinerica ¥. a:

Domenech, 1940, 311 U.S. 150, 61S. 219, 85 Le Kd. Os. @

The clear purpose of the treaty here was-to de ‘velop inter-

national civil air transport services on the basis of equality

of opportumity. The contracting nations greed to apply -

‘their laws and regtlations to the airer: aft of all contracting

States without distinction as to nationality. A permanent

organization was established under the treaty to further

its, purposes, including the aviodahce of. diserimination be,

tw een the contracting ations. Mach airport In the econtract-

sabaenal conformity: with those then, imposed against all .

“In this connection, vour attention is invited. to Resolution

No. 11144 of the Board: of County Commissioners of. Dade

County, Florida, acting as the Dade County Port Anthority,

adopted February 14-1957, wherein the Port Authority. war-

ranted that on or before December Ob, 1965-it will ‘review ita.

entire schedule of rates. tariffs, fees, and charges tor users of

“airport facilities of the Authority, in all respects, in the light

of circumstances and of facets that then and there exist, and,

where necessary, modify. revise. or change ‘said rates, tariffs.

fees, and charges, so that they will then and there meet the

legal requirements of being fair, reasonable, and not unjusti-

fiably discriminatory or otherwise contr: irv to law.’ * * #""

oe 1a’ ies oy

: ° . ' z= oA"

ing nations ‘open to public use for aircraft of its nationals

was to-be open under uniform conditions to the aircraft of

the other contracting nations.

There is nothing whatever in the treaty that would de-

prive the contracting airlines here of the fruits of their

bargain, made before the treaty became effective, nor that

would réquire appellant to afford the same bargain to ap-

_ pellees.*’ Appellees, on. the other hand, have at all times

been afforded uniform conditions. .The same charges were

made against them as against Braniff, an American ni-

tional flying internationally. They were a part of. the same

class for the purpose of charges and ‘the contracting air-

lines, upoti tie expiration of the twenty year contracts,

_will join that elass. The present separate classifications

of the two. groups _will then cease to exist’ and Article 15

of the treaty will become fully, effective.

That this is a clear import of the treaty is demonstrated

by ‘Article 82 thereof whick. recognizes outstanding incon--

sistencies, and requires, the use of Best efforts by the con-

tracting states to secure the termination “of any such i incon-

sistency :

“The contracting States miei this Cenvention as

abrogating all obligations and understandings between.

them which are inconsistent with its terms and under-

take not to entef into any such-obligations and under-

_ standings. A contracting Stdte which, before becoming

» amember of the Organization has undertaken any ob-

ligations toward ‘a non-contracting State or a national.

‘of a contracting Siate or of a non-contracting State

o% Although it is not * point. urged, we noté that-these contracts

were executed after the negotiation of the treaty’ in 1944 but: be--

fore it -becanie effective in 1947. With respect ‘to private rights,

unlike rights of the governments involved, a treaty is effective

only from the exchange of ratifications and* does not relate back

to effect private rights vested prior to that date. Haver v. Yaker, i

1870, po a 32619 1. Bd. ait. ; \

e ¢ ‘ ~f'' ws

Sag e

4 ” .

die... ane

inconsistent with the terms of this Convention, shall

take. immiced iste steps to proenure ats relagise trom the:

‘obhi rations. «Tf-aw airline of ary “egitrheting State

has entered into any such inconsistent obligations, the

Statewt! which itis a nat ionupshall Ise ts beste forts SHS:

to secure ‘their termin: (tsttteret hewitt AT rst alban any

event cause them to be terminated as SOOT as Suc hh

action. ean lawfully be taken after the coming mito foree

of this Conve ntion, :

Of course, the treaty Was effective immedi: ate sly except

as to these ineopsis sterieies but. its terms. Insets ir as ape

plicable here, would not’ become nthe Iv ei iiective until

the termination of these outstanding Contract racts, either at-thye—@

ee or pon the exp expr: ation of thy

terms of the contracts, ~ De Geefron vo Riags, supra,

“where ‘the treaty with in anee permitted aliens of either

country to inherit from citizens of the other, and the presi:

dent of this country was to uurge changes in inconsistent

state laws. The treaty- was effective immedi: ately in state S

wath consistent laws.

te e

” _*

Appellees cannot rely in the courts on “what Was to he.

done in. the future hy this government to remove infra.

te: ritorial in@Onsistene les such es these contracts, This is

, av.atter that addresses itself to Lhe political branch of the

government. Foster raud Kiam v. Neilson, 1829, 2 Pet. 252. -

7 L. Ed. 415 an Roberston v. Ge neral Electric Co.. 4 Cir

1929, 32 F.2d 495. Thus,-it is that appellees will by Ive no

cause of ‘action: under the treaty until the contr: nets in

question are terminated, or unti il they” expire by their own

terms. : , ae, ae. ae -

But. there is yet another reason why this cause ‘fails.

Favored nation clauses may be inapplicable in situations

Where exceptions are made<for valuable, consideration.

Bartram vy. Robertson, 1887, 122 U. & 216; 7. 8. shy ‘1115;

L. Ed. 111s; Whiiney v. Robertson, WSs, 124 ULS. 190, 8

“

- @

- the same question as it related to duty on sugar from the

PR. PSS

Ss. Ct. 456,31 L.Ed. 386; and Ke ily v. Hedden, 1888, 124

US. 196-8 S. Ct. 459, SPL. Ed. 389. .The compelling logic

of these eases ‘is’ persuasive if not controlling in this re.

gard, and we adopt it as: ‘controlling hiere.

Plaintiffs in: Bartram were importers of sugar from a

Danish possession. They sought a refund of duties paid on

the sugar under protest because of a favored nation clause

in a treaty between thts country and Denmark. This e6un-,

try entered inito‘’a treaty With the King of, the Hawaiian

Islands.after the effective date of the treaty with Denmark

whereunder the United States agreed to admit, duty free,

certain products of the Hawaiidn Islands asban equiv alent.

_for an agreement by the King to admit certain nroducts,

duty free, fromthe United States into the Hawaiian Islands

and for the coneession by the King that durmg’‘the term of |

the treaty he would not lease or otherwise dispose of any

,port or other territories in his domain or grant any “special

. privileges thereto to any other government, or make any

treaty by which any other nation would. obtain the same,.

. privileges relative to duties thereby secured to the United

States. The court stated that the fav ored nation clause in

the treaty with Denmark did not cover concessions like

those made to the Hawaiian Islands for valuable considera-

' tion. Whitne y y. Robertson and’ Kelly v. Hedde n involved

Dominican Republic’ and a treaty with that country. The

court reiterated that the favored nation clause was not in-

tended to interfere with special arrangements upon sufii-

cient consideration with other countries. :

- These ‘well reasoned authorities, lawelving - as they do

private rights based or favored nation clauses, are analo-

“gous to the instant situation. Considered together, they

teach that there may be exceptions to such elauses where .

based on valuable considerations. ‘Sueb consideration was |

present | here. Such is the case here. The five airlines with

the original contracts joined: with appellant to establish

and sustain the airport in its infaney. By.

so long as “the ‘'v do, ap rellees cannot om ylain.. a

Having taken this view of the ¢

question. af the use of a sliding v

ing fees Which appellees Urge aS, being unjustifiable, ° ‘nor

the. remaining dlefenses assepfed hy. appellant.

‘Judgments should have, fae n entered j in. the District Court

‘for appellant. We RE VE RSE and REM AND so } eet this

may ‘be done. Za

tA true copy... T hat: Edward W. W adsw orth, € ork, U.S.

Court of Appe , Fifth Cireuit.

Septembep/27,- 1962 é |

New Orleans, Louisiana + PO ae at

- ?

. m |

. s .

ihe. sili

se °

idsaeht it can

be said that the y received a bargain, but ibé Packs ie Verte.

" 1e&s show ample. consideration. - The eonfraets subsist and

So, we do not reach the,

graduated seale of land.”

I4a

APPENDIX B

Judgments entered by United Staibs Court of Appeals.

Fifth (Circuit *

IN’ THE =

‘UNITED STATES COURT OF APPEALS

FOR TH FIFTH CIRCUIT.

ae ad

——

October Term, 1961

No. 19476

D. C. Docket Nos. 8990 and 9820-M-Civil ”

Boarp or County COMMISSIONERS oF Dane County, Ftorip,, +

acting as the Dave “County Port Avurnority,

\ : Appe ilant- Appelles,

: EA

Axtovias INTERAMERICANA DF, Pixswn S. A., et al.

- . Appelle ex-Ap spellant

"(AND REV ERSE, TITLE)

Appeuls from the United States District Court’ for. the

: Southern. District of Florida’ ;

os, Before “Tuttle, Chief Judge, Bell, Circuit paca

-and Carswell, District Judge. ;

\ -JUDEMENT

This cause came on to be heard on the transcript of: the

record from the United States District ‘Court for the South.

ern District of Florida, and was argued by. counsel ; “

Ow Coysieration Wuereor, It is now here, ordered and

adjudged by this Court ‘that the judgment of the said. Dis-

loa

trict Court cin this cause be, and the: tsamme is he re by, re

versed : and that this e: tuse be, and itis hereby, remanded

to the said District Court for entry of judgment tor appel

lati, Board of Connty Commissioners: 6f Dade Count,

Fibrida ; sci 2 :

It is further ordered and adjudged that the appellees,

Aerovias Interamericanas. de Panama, S.A.. and tiers,

‘ ‘be condemned to pay. the costs of this eause in this Court -

for which execution may be issued om of the ‘said District.

C ourt. d . |

; ; J we ho) Aggant 3 1862

issued: ; i a “oS

JUDGMENT 1 Oe NTE RE r AU GUST. 31, 1962

OE 2

‘

% “4

¢ i ‘

iw*

. ~ -

. ‘ s .

ad .

Pca

. .

: a ’

. —

” C) = a

. 27

———_

ad ‘

Sy as

é Ye

* &

it ,

. ° ™

IN THE

* UNITED STATES COURT OK APPEALS

FOR THE FIFTH circuIT ®&

* October Term, 1961 7 S

mY A Ne, teens

D. C. Doeket No. 10,428-M-Civil

i* gas

Boakp or County Com MiSSIONERS or Dape County, Florina, ”

acting as the Dane County Porr Avriorrty,

er lle a

oe eae stat :

. Vv. b . 4

: ' ‘ . . i

Liweas Areas dr Nigarasua, 5... Appelle-A ppellant,

(ax REVERSE TITLE)’

"Appeals from the United States District Court for the

Southern District of. Florida * .

Before Tuttle, € hief Budge. Bell; Cj reuit Jaddk

and Carswell, District J

| JEDGMENT .

This Cause came on to be heard on the’ transcript of the

record from the United States District @ourt for the South.’

ern. District of Florida, and was argued. by counsel ;

‘Os Consmeration W HEREOF, It is now hers ordered and

cadjudged by this Court that the judgment: of the said Dis-

trict Court in this cause be, and the same is. hereby, re-

versed; and that -this ¢ eause be, and it is “hereby, remanded |

to thie said ‘District Court for entry of judgment for’ ap-

pellant, Board of C ounty C ommissioners of Dade County,

* Florida ; ut oe i

‘Lineas Aereas de Nici iragua, S! A. be condemne

Cae Mia a

It is further ordered ned adjudged that: = appelles,

to pay the -

costs off this cause in this Court far whieh exer ution may

be issue or out of the said Distriet Court.

3 . ie August of, 1962 , :

ae Sect jabs :

JU DGMENT EN TERED avaes ST 31, 1962,

‘9 * -

lSa

. APPENDIX C

Snip from certain original exhibits certified as part of the

. record but not heretofore'printed. .- ~~.

im” ’ Excerpts. from Stipulated Exhibit 1'

Preliminary ’Pre- Trial Stipulation

® _ ‘* a * ‘*.. $4 @4..'8@ @

Evidence . |

6. It is’ stipuated that Miami International Airport is.

’ the-second largest airport in the United States in terms of

international traffic. It ranks sixth ‘in the United States

in terms of domestic passenger traffic, and thirteenth in

terms of domestic cargo traffic. Domestic airline service -

at Miami-International Airport affords the shortest con-

nection time intervals for international-domestic ’ passen-

gers and domestic-international. passengers of any other

airport) in the: Southeast United States. Similarly, it af-

_ fords the best connections in the Southeast United States

for both rail and air connections of cargo in international-

domestic and. domestic-international movements. Of alltair-

. ports in the South, it is the elosest in mileage to most Latin

American ¢ountries. The. Plaintiffs. could efficiently and

economically serve Miami a through the Miami Inter-

a Airport. /

7. Dade County, Florida, iter the eae ae of County.

- Commissioners, acting as the Dade County Port: Authority,

operates.the Miami International Airport in a aepuiegenss

capacity. am

e ‘ ea.

ye a

‘Other portigns of Stipulated Exhibit 1 are shown at pages

of. the Record, (R. 629- 631)

‘

19a

2. Excerpts from Pan American lease agreement, dated Decem-

ah ber 11, 1945, effective J anuary 1, 1946, Stipulated Exhibit 2

at pages 93-94.

4 A rlicle XX VI

Leases with Other Air Transportation Companies

be . *

While the provisions of this instrument are in no respect

dependent upon effecting lease agreements with other’air

transportation: companies, nevertheless jt is understood

~ that.the Authority shall have the right and jrobable ‘will

‘execute lease agreements forthwith with such other’ com-

panies, and it is further undersjgod that. the Authority

reserves the right to execute at any time hereafter lease

‘agreements with others and.to construct bangars and other

buildings for them and to gramt to them the right to use

the landing field and all public parts of the Airport. in

common with the Lessee herein and all others rightfully

using: the’ airport.

The Authority covenants and agrees that if it enters into

any contract, agreement or lease with any ‘other air trans-

portation operator or airline with respect.to the- Airport

‘containing more favorable terms.than-this agreement, or if

the Authority grants to any other air transport operator

or airline, facilities, licenses or privileges with respect to

the Airport which are more fay orable than those aecorded

to Lessee, then the same terms,. facilities, licénses and:

_ privileges upon the same- terms and conditions will. auto- -

matically and sy 9 be —_ available to Lessee..

3. Excerpts from Plaintiffs’ Exhibits 3 and 4

Request for: Admission of Facts Urider Rule BE.

* Plaintiff's Exhibit 3

‘Plaintiffs hereby request the defendant within ten (10)

days after service of this request to make the following

admissions for purposes of this action only and subject

20a.

to all pertinent objections ta edvninaibiaity Ww _ may be .

interposed at the trial. ’ :

That each of the following statements is true

@ - * ; ° , e ad ° _ @ a e . e

_ £2. Braniff International Airways, Inc. (Braniff) in 1955,

pursuant to a certificate of public convenience and neces- .

- sity issued by the Civil Aeronautics Board began scheduled

international air. serv ices between Miami, Florida and vari-

ous Latin American countries through the use of the Miami ;

- International Airport. :

23. Reports of-Braniff, Pan, American and Nattenal to’

the Civil Aeronautics Board and _published traffic’ reports |

of the Immigration Service for the 12 months ended June

30, 1959, indicating the international passenger departures

from Miami to. Latin America, show that the passenger

traffic was. carried as follows:. —

Pan American | 64.1% of all passengers

National 3.4% of all passengers .

Braniff. . 2.0% of all passengers

All Foreigu Carriers / — mens

Combined 30.59% of all passengers

100.0%

e e-- ° . e * e ® ° 6

-Answers to Request for Admission of Facts U nder -

— 36—Plaintif’s’ Damion & ~o

a Admitted

93, Admitted

- -2la a

‘4. “Excerpts from Stipulated Exhibit 12-B

: ‘@e : e ... ® x _* ° e o . @ @

[The Fiséal Year} .

-1958/1959 : o

; No. of Landings -

Name of Airline [U.S.] {International}.

LAPAA. oe 8196

, Braniff "308

e. e e ° x -« e a e

7 . a ‘ x : Pad

¢ ‘

22a

5. Letter of General Counsel, Civil Aeronautics Board—

Plaintiffs Exhibit 13 le

Civil Aeronautics Board—Plaintiff’ s Exhibit ;

CIVIL AERONAUTICS BOARD

WwW ashington 25, D.C.

_ _ _ November 29, 1960 -

_ Philip Schleit, Esa, “rs, .

‘Attorney at Law .

1757 K_ Street, N.W.

Washington -6,-D. C.

Re., Aerovias, et al. v. Bd. of Comm. -

~ No. 8990-M; Cuba Aeropostal, S.A.

y. Bd. of Comm. No. 9820-M, .

U.S. Dist. Ct. So.. Dist. Fla.

(Miami Division) _ .

en. .

Dear Sir:

This will ackrfowledge receipt of your letter of Nov embe v

28, 1960, with respect to. the above-captioned litigation, and

requesting the opinion of the General Counsel of the Board

with respect to certain questions concerning the. operating

rights and regulaticns applicable to international airlines.

_ It is my understanding that it is proposed to submit these

answers as part of the record in the litigation.

In the interest of simplicity, I am isting the questions

as stated in your letter, together with the answer to each |

such question.

I. Do the foreign air carrier permits of each of the 13

foreign airlines shown in Annex A attached hereto author-

ize such foreign airline to:

a) Engage i in’ scheduled foreign a air transportation over

the route or routes specified in the permit, also to engage

in non-scheduled foreign air transportation over said route

or routes? 7 sa aa

‘Answer: Yes.

23a

b) Engage in ‘‘air services’? over said routes within

the meaning of the various bilateral air tenmapett « services

agreements? ,

Answer: Yes, .

e) Engage i in scheduled’ ‘intotinasieiiiay aera tas Over

said routes within the 1 meaning of articles 6 and 15 of the

~ Convention on International. Civil Aviation, known as the.

Chicago: Convention pig Stat:° 1180) ? ; i

Answer: Yes.

d) Engage in “scheduled international wir services * be-

tween the United States terminal point and a point or

points, not named i in the forvign air carrier permit, beyond

the foreign earrier’s homeland sf long as such flights serve

the foreign carrier's homeland in the case ofall foreign

airlines ‘listed, in Annex .A (except TAN. since Se ‘ptembe r

18, 1960, in’ whose permit certain beyend services are pro-

hibited) ?

Answer: Yes.

I]. In view of the fact that the C.A.B: and j its staff have

an important part in the development of bilateral air trans.

- port agreements, and that the C.A.B. has regulatory fune-

tions over both foreign and U.S. flag air carriers operat

ing under these bilateral agreements, there are the fotlow-

‘ing questions: | ;

a) In the opinian of the General. Counsel of the Board,

is the Convention of ‘International ( ivil Aviation (Corn-

- monly known as the Chicago Convention, 61 Stat. 1180) a

treaty in full force and effect?

. Answer: Yes.

b) In the opinien of the General Counsel of the Board,

have all of the foreign airlines, listed in Annex A attached

hereto (with the exception of the Guate ‘malan, Nicaraguan

and Honduran airlines) been accorded by the Unitéd States

the airline operating rights into the U nited States provided

— ‘

24a

for in the Air Transport Servi ices Agree ments with their

. Fespective countries ee

alee

Answer: In aécordance with the provisions a Section

. 1102 of the Civil Aeronauties Act of 1938, as amended, and ° :

« Section 1102 of the Federal] Aviation. Act of 1958, the: air-

_ line operating rights granted to the foreign airlines listed”

_in Annex A (with the exception of the Guatemalan, Niear-”

auguan and Honduran -airlines) have been granted con-~ .

- siStently with the provisions of. the Air Transport Services:

Agreements with their respective countries,

«e) ‘In the opinion of. the General ¢ ‘ounsel of the Board,

have three’ ‘ontrak American Airlines (of Guatemala, Nie-

aragua and Honduras), wherein no bilateral air transport

_. Serviges agreements. exist been accorded by the United

States airline operating rights into the United States gen-.

erally reciprocal to-the airline operating rights aceorded | -

United States flag. airlines in the respective foreign coun-

tries?

Answer: Upon the basis of the stiles and orders -ot

“the Board which issued foreign air carrier permits’ to the .

Guatemalan, Nicaraguan and Honduran airlines listed in

Annex A, it is my opinion that the airline operating rights

of those airlines have been granted by the. United. States

for the purpose of granting. rights reciprocal to. those

granted to United States carriers by the country of which

“ the airline is a national.

Ill. As to Compania: ‘Cubana. de Aviacion; S.A, (4° Cu-

-bana’’), do the records of the Board indicate that Cubana -

was controlled in whole or in part by Pan American World

Aifways, Ine., uptil about 1955?

Answer: ‘In Havana-New York Air Carrier Pe rinit Case,

14 C.A.B., 399 (1951), the Board found that Cubana was |

~ a wholly owned subsidiary of Pan American Airw ays from

- March, 1932, until November, 1945, at. which time 48 per- -

cent of the stock was allocated: for sale‘to Cuban nationals.

ry ! re

{ F Loa S

Pan American's holdings had been reduced to 48 percent

by 1947, and to 42 percent at UkG time of the oral argument

in the aforesaid proec ming

pania Cubana de Aviacion, Air Carrier Permit, 20 CAA.B.

4x2 (1955), states that sale of the re maining shares of Pan

American was completed, in 1954 and that liquidation ef

that debt owed by Cubana to Pan American would be com

pleted on March 10, 1950.

IV. ‘Has it been generally eus stomary: for the past sever ral

years for international airlines carryiig: passengers to

serve complimentafy meals aloft to their passengers

Answer: The inte national airlines who are members of

the Internatjonal Air: Transport) Associations Cap proxi

mately seventy in nuniber) have entered into agreements,

copies of which areon fil with the Civ i} Aeronanties Board,

_ Which permit such airlines to serve complimentary meals

aloft to their passengers in accordance with the require:

ments and limitations preseribed by such agreements. Most

of the major international airlines of the world are mem

bers of the Association. Tocthe best of my knowledge. the

Board has no official record of agreements or prac {fees of

international, airlines who are not members of the Asso-”

ciation. [aes a .

4 Yours very truly,

Fraxkuin M. Srone

General Counsel .

; by Jonn H. Waxnxep

. ; og De puty Generals C: auisel

The Board's opinion in Com

“

: . Jia Age :

in the = oo Coase Nos 19.476

Un.ted States Court at Appeals ; ; es 4 + @Ad 19,632 °-

For the Fifth Circuit Poge 20 6

| _ EXHIBITS FOR ORAL ARGUMENT.

Airport C Charges for One Year -

Ending ‘September 30, 1959

Comparison of Average Charge per Landing for >

Nine Appellees, then operating, and Pan Am and Notional

” . ° .

aoe Foreign Airiine PAN AM ~ . Nationai,

Har ; , - : : :

Ser onaing «Appellees Reger :

890 —— , : — : jaan -

ao +

-_w

iin age acetate ceca

- 12)

Source Stpuloted exhibit 9 ond l2; gos & o1/ concession charges, Plainttts Exhibits (S17

(ottached exnidits) Amounts ineiyde passenger, <0rgo, lonaing chorges, ond gos 4%

. @/ concession charges Do net snciude catering chorges Nine oppe//ees para tota’ of

$187,701 25 tor 2,618 londings PAN AM paid $32, 45300 for BNE ionoings, ond

Notional pad $32,198.00 for ‘0,227 /onamgs One opveliee dic no’ begin ser.

unt:/ 1960 and one appellee has suspended

29a

APPENDIXD. ~* =,

Part of Proceedings in Court, Below

District’Court Order, Exhibit I attached to. Petitioners’

Motion in the Court of Appeals, whiéh Motion was entifled

‘Motion By Appellees To Inchade Certain Recent Dade ,

County Port Authority Resolutions, Contracts atid: Facts

As Part of * he Record ‘On Appeal.’?— | $y

“IN THE UNITED ST ATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MINMI DIVISION:

No, S990. M-Civil- BC Rea}

ABROVIAS INTERAMERICANAS DE Panamae SJAL; A RKOLINE AS

Pervanas, S.A.; Gompanta Crnana pe Aviaciox, Sud.

Compania Bevatorntana pe Aviaciox, SoAe: Earpresa

*Guatemacteca pe AviacioS > Expresa.pe TRANsrorres

Agrovias Brasit, S. A. : Exeresso Agree Pxren Aire

caxo, S.A.; Gutst “Arnovias Mexico, S.A.;) Linzas

AgREAS DE Nicanacua, S.A.; Luoyp AgEKEO CoLonpiano:

‘Rutas Agreas Nactonaues, S.A.: axp Tra Nsportes

AgREO Nacionates, S.A, ;

; alien Plaintiff's

Boarp or County Cow issioners or Dave Corry,

Fioriva, Actixe as Dapk County Porr Aucriorrry,

. os Defendant -

_ No. 9820-M-Civil-EC

Cra ABRoOposTAL, 8.A..:

a eyed tac gins Plaintiff,

a, OM ~

Boarp OF County C OM MISSIONEIS OF Dane County,

“FLorips, Actix as Dapr County Porr Avrnomry,

rf I fendant

a oe

‘ORDER * ; a

Tuts Cavse-came on bevore the Court upon Motion of the

.. Plaintiffs-Appellees for the entry of an order designating

certain resolutions and contracts of the deferfdant-appellant

Port Authority occurring since’ decision herein and Final

Decree as part of the record on appeal, and to mcdify the

Stay Order; and after hearing argument of counsel for both

parties and upon due deliberation, it appears to the C ourt:

Ordered that the motion: to modify. the Stay Order is re.

ferred to J udge Lieb. '

That ‘such docunmnts would sliow the removal of all cargo

terminal charges 6n all airlines sinee October 1, 1961, and

new reduced rate airport charges | '% Braniff Airways,

Ine., and certain other non- litigant foreign. airlines as -of

‘January 1, 1962, granting also Braniff and the others equal

future relief to that finally achieved by plaintiffs-appellees

in. this cause; that such matters would.be relevant te the

appeal only with respect to certain injunctive feattires: and

. they affect only the trial court’s opinion under point 4 at’

page 244 of 197 F. Supp. 230 (1961}, which contention of”

the defendant-appeallant upon stipulation of: all counsel

in open court can not.now be urged by slefendant-appellant

before the United States Cireuit Court of Appeals; it is

2 ae ees... eat... . . °

OrnpERED, that the-motion be and it hereby is denied.

_ Done anv, Orperep. at Miami, Florida, this 20th day ‘of

February, 1962. ee ee

ee . iowa , /s/ Eetr C.. Cnoatr_

United Staes District Judae

a € . ;

_ tory basis

3la

APPENDIX E .

Portions of Legislative History of Convention on ievilecthandh

Civil Aviation, 61 Stat. 1180 .

State. Department Memorandum for United States Delegates

-, . * at Convention .

Sentmary of Objediives Favored by: the United /States

of America with Respiet to Post-War Civil Air Tr ransport

Confidential : For Information of the Vuited States

Delegates”

11 (2) Use of airports and Faciltties on a Non-diserimina

Policy Recommended :

That each country agree and take necessary implemen

tary action; | .

(1) That thy use of public airports, accessory, facil

ities, and techni¥al assistance such as navigational aids,

weather reporting and: telecommunieations be made

available to civil aircraft of the other “on a basis of

national and most-favored-nation treatment ;

2) That commercial aireraft of ‘the peree Which

ane been granted’ rights of commereial entry or tran.

sit rights may have equi lity at opportunity, to obtaie

or provide necessary facilities tor tne ling, repair or

Maintenance ; and ,

soul jance w ith thoes: prax isions.

Background Material: 0s

General. \t is a° well-established principle in interna-

tional practice that. the granting of commercial rights of

entry (See [tem I, (2)) requires the according to the air

craft transport service of another country as favorable

i a. =; g

tres itrfient ith respect to use of pubite airport ‘fueties as’.

are accorded to aireratt of nationals of the country grant-—

“ify the operating rights. [tis also corisidered ‘that’ treat-

ment gn this basis is a necessary adjunet to the granting.

of the right of transit and*technical stop. (See-Item 1 (1).)

Situations have arisen where ahoair transport ft of:

one country which has been granted commereial operating

right anto anotHer country, has been estopped from effee-

tively operating as a restlt of the efforts of national. com-

petitors to block access to existing fucting, maintenance |

or ‘repair facilities and to prevent the providing of such

facilities by the new carrier. The provisons in clauses (2)_

and (3) have been inserted with ‘a View to assuring that

the Government granting commercial operating Tights. to

a foreign carriér will enforee equality of opportunity to

obtain “or provide ACCESSOTY facilities vital; to effective

operation.

. British Vi ew point % ° ag

‘The Britizh Draft, Agenda eg not incliide an idefitical |

item. However, attention is invited to-Item 2 (9). The’

British position is prébably indicated by the provisions in

the internatioral agreement citeg below. ;

U.S. Viewpoint i ra ees r

. “ws, ° e ~ . - cr

It is beheved™that the treatment recommended in- the

goliey declaration should be granted as a matier ef course

‘inder international practiée in connection with the grant-

ing of operating rights to American aireraft. —

ULS British A greem ents ee

The British and Canadian Governmetits are parties. to

the Paris Convention of 1919 which includes the following

article: fe

. ‘Art. 24.—Every hiorbiledinn "et a contracting State,

Which upon payment t charges is open to — use

oa .

by its national aircraft, shall likewise be open to the

aircraft of all the other contracting States.

“In ev ery suck aerodrome there shall he a sing?

tariff of charges for landing and length of stay applica-

ble alike to national and forei ign aircraft.’

The Air Navigation Arrangement between the United

* States*and Great Britain, effective May. 5, 1939, inichudey

this British commitment : J

. Aerodromes open tocpublie air traffic in the ter-

ritories to which this Note applies ‘will, so far as they

are under the control of His Majesty's Government in

the United Kingdom, be open to United States air

craft, which (subject to the same proviso) will also’ ’

be entitled to the assistance of the meteorological,

wireless, lighting ‘and day, and night signalling SOTV-*

fees at such aerodromies. Subject again to the same

proviso, the scale of charges at such aeredromes for

Janding and ac ‘commodation W ill be the same for U ited.

States as for British aireraft.’ —

This applies only to the following territories;

United States territories:

Continental United States - ae a

Alaska | oy + mie

American: ‘Samoa (comprising the feland of Tutuila,

the Manua Islands, and all other Islands of the-

Samoan group east of Longitude 171° west of

Greenwich, together with Swains Island)

si Puerto Rico (including Vi ieques, Culebra, Mona and

Desecheo) ;

‘Virgin Islands ‘ofthe United States (comprising St.

Thomas, St. John, St. Croix and dependent islets)

dta : e ie ‘

British territories:

United Kingdom of. Gireat, Britain and Northern 1 Tre .

land

Newfoundland sachiabae Labrador | ~ y

Bahamas ~

Barbados"

Bermuda

British Guiana

British Honduras

Jamafea Qneluding Turks and Caicos Islands and

the Cayman Islands)

Leeward Islands and their dependencies including :

« Antigua —_

Dominica

Montserrat

St. Christopher and Nevis

Virgin Islands .

Trinidad and Tobago «+ :

Windward, Islands and their dependencies including :

Grenada

St. Vincent :

St. Lucia

Statement Or Mr. W. Lb. Ciayton, Assistant SECRETARY oF

- STATE, AT THE SENATE ForeiGn ReLatroxs ComMITTE F

~Hearixc, Monpay, Marcu 19, 1945 _

. At the outset, I would like to emphasize that the Inter-

national Civil Avi ation Convention which has been sub-

mitted to the Senate by the P resident is a document inde-

pendent of all other agreements drawn up at the Chicago

Air Conference and should be pas ssed. upon on its own

merits.

The International Civil Aviation “Convention sets forth .,

modernized basie regulations governing international civil — .,

aviation. It covers the air transport, air navigation and _

technical phases of aviation, and establishes a basis for

joa - 4

lecommon air practice throughout the world. It sets up an

_ International Civil Aviation Organization on a truly world.

wide basis. This body consists of an assembly represent.

ing all States parties ‘to the Convention, as well as.a 21-

member. Council, which. will have advisory and technical

functions, but which is not empowered to regulate the

economic aspects of international air transportation. — -

The fundamental improvement which the Chicago Avia-.

tion Convention makes ts the replacement of the interna-

tional aviation convention adopted at Paris in 1919 and

the international aviation convention adopted at Habana

. in 1928 by a single modernized convention. This ‘makes

it possible to bring about .the adoption nd application

of international rules ard standards on a\more universal

basis than has heretofore been accomplishtd. In view of

the increasing speed of aitcraft-and thei ability to fly.

over the territories of many countries in a single -flicht,

international air navigation ean be greatly impéded by

divergencies between the rules and standards of flight aris-

ing out of different international convention, Further-

more, the experience of the last few years has emphasized

_ the importance of bringing air navigation regulations .up

‘to date.

In connection with the foregoing, particular attention

is invited to the situation that has existed in.the Western

Hemisphere. International aviation in Canada’ and in

European possessions of the Western Hemisphere was -

‘governed by the principles of the Paris Convention. The

United States, Mexico, Guatemala, Honduras, Nicaragua,

Costa Rica, Panama, Dominican Republic, Haiti, Ecuador,

_» and Chile are parties to the Habana Convention, but are

not parties to the Paris Convention. Peru, Paraguay,

Uruguay and Argentina are not parties to the Habana

Convention, but are parties to the Paris Convention. Since °

in some of the countries of the Western Hemisphere there

have been no rules governing international air navigation

o- .

36a_ .

other than those included fn national laws, while. in other

_ countries of this Hemisphere either. the Paris or Habana

Convention was applicable, there were marked divergencies

in the international ‘regulation of aviation. While these

conditions were perhaps endurable in the pioneering days .

-of aviation, before the war, they would-be unendurable

with the vastly increased traffic anticipated in the post-

warera. ° at Se aie, carck :

The delegates. to the Chicago Aviation Conference were :

in a position to profit by the experience gained in the prac- *

tical application of the Paris and HabanaConventions,

and retained in the Chicago Convention a number of the

basie principles of the Paris and Habana Conventions

which, in their practical application, had satisfactorily met

the needs of international air navigation. . At this- stage,

I should like to give a general outline of outstanding dif-

ferences between the Chicago Convention and the existing

* multilateral aviation conventions.

The provisions of the Paris and Habana Conventions

setting forth the conditions wnder which commercial and .

non-commercial aircraft of a contracting State would be

allowed to operate in territory of other contracting States

were not .at all clear. * Although the Paris Convention

provided that the operation of scheduled air services of

any contracting State over territory of another contracting

State would be subject. to the latter’s prior consent, tlfe |

provisions of the Convention relied upon to establish a

‘general right of entry for private or tourist -flights or for

occasional. charter flights were rather ambiguous since the

“provision of the Convention mainly relied upon to estab-

lish this general right of entry was the one ‘granting the

right of innocent passage, a term which many have con-

fused with the establishment ofa general right of transit

for commercial air lines. Moreover, a provision in another

_ part of the Paris Convention under which each contracting

State granted to aircraft of other contracting States the

e <

‘

head . e

aoa

right to fly in transit through its territory was also relied

upon to establish the’ general right of transit for non-

scheduled services.

The Habana Convention grants the right of innocent

passage in one article and states in another article that

the aircraft of a contracting State engaged: in interna:

tional air -cammerce, shall be allowed to discharge pas-

sengers and cargo of foreign origin in another contacting:

.. State and take on passengers and cargo in such other State’

for a foreign destination, but the Convention does not

specifically state that the operation of scheduled air lines

of one contracting State in territory of another shall be

subject to the latter’s prior authorization. -In practice,

however, the Habana Convention has beén interpreted as.

requiring. such prior authorization. : re

Having in mind these ambiguities of the “Paris and

_. Habana Conventions, the delegates at the Chieago Aviation

Conference’ clarified the situation by definitely providing |

in Article 5 that airerart.of a contracting State not en-

gaged in scheduled international air se rviees shall have

the definite right of entry into or transit through the ter-

-ritory of other contracting States subject to certain rea-

‘sonable limitations and conditions which are fully - ex-

plained in Article 5.° As to the entry of international

scheduled lines the Chicago Convention leaves no doubt

as to what the delegates to the Chicago Conference had in-

mind, since Article 6 is very specifie and definitely pro-

vides that no scheduled international air service may be

operated over vr into the territory of a contracting State -

except with the special permission or other authorization

of that State; and in accordance with the. terms of such

permission or authorization. | ak

- Part I of the Chicago Convention contains general prin-

ciples pertaining to air navigation. A. number of these

are basically the same as corresponding provisions found

an the Paris and Habana Conventions, but they have been

38a |

niodernized .in the light of the practical operating a

ence of the last few years.

Part II of, the Chicago. Coavciibon provides for. :the

_ establishment of the International Civil Aviation Organiza-

tion. Part II contains a number of pfovisions not found

in the Paris Convention of 1919, since that part defines

the duties of a Council and an_Assembly which’ are to

constitute the International Civil Aviation Organization,

whereas the~Paris-Convengign established a single body

known as the Intérnational Commission for Air Navigation

‘which had important duties in the matter-of developing

_ international regulations -on. various technical subjects.

The advantage in having the International Civil Aviation

Organization under tlie Chicago ‘Convention comprised of

both a Council. and an Assembly is that representation in

the Assembly of all the contracting States is provided for,

while «the Council,.a smallér body “composed of States

elected on the basis of their importance in: international

air transport or contribution of air navigation facilities,

or elected beeause of geographical position, is in a better

position ta act expeditiously:

The International Commission for. Air’ Navigation’

adopted technical regulations which were embodied in the

anriexes to the. Paris Convention, and ‘it Was provided in

{ fhat Convention that: these regulations would become effec

“five upon their notification to the contracting States. The

Chicago Convention deals with the matter in a somewhat

different way since under this, Convention the Council

will adopt international standards and recommended prac-

tices, which will come info force as such unless disapproved

by a-majority of the contracting States. While it is

_ generaily agreed that. the various countries should: adopt

and apply these international standards in their national

regulations to the greatest, possible extent, there is the

possibility under the Cliicago Convention of some depar-

ture from the international standards if a particular gov-

ernment feels that it has serious reasons for bsckh de

parture.

The Convention further provides that the ¢ ‘oubelt shall

establish.an air navigation commission composed of qual

fied and experienced persons charged | with the duty of

making studies of technical aviat bon operational matters

and that the findings of this commission are to be sub-

_ mitted to the Council for adoption. Among the matters

referred to here would be such qiestions as radio com:

munication procedures, air navigation aids, rules of the

alr, air traffic control, airworthiness of aircraft and aero-

nautical meteorology. The great udvantage of such ia

centralized study of these questions on a world-witle basis.

will be apparent. The fast increasing number, size and

speed of aircraft using the air space makes it more and

more necessary to simplify, Improve and standardize air

navigation procedures.

The Convention permits a country which finds it im:

_ possible or inadvisable tovconform to the practices recom

mended by the Council to deviate from those practices,

provided the Council ix given seasonable’ notice of such

deviations so that other countries may be informed thereof.

A fundamental weakness in‘ the Habana Convention ix”

that it ‘provided for no intern: tional aeronautical ‘body

‘develop ‘international standards in thy technical field: «

aviation. <i

“Part III of the Chicago, Convention deals with inter:

national air transport. This part contains important pro

visions conferring upon the Council -the power to assist

the contracting States in the matter of making available

in the territory of a contracting State adequate airports

and facilities for the safe, regular, efficient and economi

eal Operation .of ‘international air services of. the other

contracting States.

39a | ae

‘

ee at . . ° 40a

The Convention provides that all agreements relating

to international air transportation shall be filed with the

Council and that full publicity be given thereto. We be-

lieve that this is an important provision in that it ends

the era of secret diplomacy in international. air transport.

This ‘Convention, Gentlemen, is literally ‘a’ **eonstitu-

tion’’ for the postwar air world, and a framework under —

which international aviation can thrive and grow strong.

It establishes commoii practices throughout the world so

that any aircraft can fly f rom any airport to any other air-

port oen‘’any continent, foliowing rules, regulations and

practices which are universal in their application. It

provides the necessary machinery in anticipation of a

vastly initensified tempo of postwar world aviation activity.

~ Dear Mr. Schleit :

3 dla

DEPARFMENT OF STATE

F VaRHINGTOS

In reply refer to LT

Nove mber 20, 1962

In\ your letter of November 6, 1962 you request an opin-

“ion of the Department of State whether the Convention on

Intern: ational Civil Aviation, (G1 Stat. TISO), particularly

Article 15 thereof, is considered to be selfzexecuting, or

* whether the Department considers that implementation by

the Exectitive or by the Legislative branch of the Govern:

ment Was necessery to make Artisle 15 fully effective.

You state that this request/is made for the purpose at

clarifying certain contusion which you consider has arisen’

in the United States courts on. the foregoing point and

refer to cfreovias et al v. Board of County Commissioners,

“197 F. 2d 230 (District Court Opinion), and a Court of Ap-

. peals opinion in the same case of August 31, 1962.

A survey of the records Ot the Departme nt of State ree

garding this Convention indicates that the question whether

Article 15 of the Convention is self-executing has not beem

raised heretofore. The Department has, from all indica-

tions in its records, proceeded on the basis that since the

entry into force of the Convention on April 4, 1947 Article

15 has been in full’ foree and operative without the enaet-

“ment of any additional legislation: or implementation by

_ the Executive. :

In accordance With its policy. of not issuing legal opin-

ions at the request of a private party with respect to a

_ matter which is seb jadice the Department regrets that it

is unable to comply with your request. Tf! requested by a

eourt which is seized of the issue, however, the Department —

would be glad to express its opinion as to the present effect

of Article 15 ) sig Conv ention,

Sincerely 4 yours, .

ae ; =

' — ~ Ricwarp D. Kearxey «

: : ; | Deputy Legal Adviser

Mr. Philip Schleit,

Attorney af Law,

1757 K Street, N N.W.,

W —— 6, D. C.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.