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Federal law defines aeronautics as the science and art of flight[i].  Aeronautics is divided into two main branches:

  • Aerostation – dealing properly with machines which like balloons are lighter than the air, and
  • Aviation – dealing with the problems of artificial flight by means of flying machines which like birds are heavier than the air[ii].


Aviation is the art of flying, especially the management of aeroplanes[iii].

It is essential for the safety of sovereign states that they possess the jurisdiction to control the airspace above their territories[iv].  Every government, completely sovereign in character, must possess the power to prevent from entering its confines those whom it determines to be undesirable.  Such power extends to include exclusion from the air all hostile persons or demonstrations, and to the regulation of passage through the air of all persons in the interests of the public welfare and the safety of those on the ground.

Even though the airspace is a public highway[v], the landowner has exclusive control of the immediate reaches of the enveloping atmosphere[vi].  S/he owns at least as much above the ground as s/he can occupy or use in connection with the land[vii].  The right of an owner of land extends downward and upward indefinitely[viii].

The common law stance on the relative rights of the landowner and the aviator regarding the use of air space above the surface of the earth is that an unprivileged intrusion in the space above the surface of the earth, at whatever height above the surface, is a trespass[ix].

The Federal Aviation Act of 1958 (Act) takes control of the airspace of the U.S. and sets up federal agencies to license and regulate the operation of aircraft[x].

Federal offences related to aviation are specified in the Federal Aviation Act and other federal statutes.

The Federal Aviation Act provides that a person who knowingly and willfully violates any provisions of the Act, a regulation prescribed or order issued by the Secretary of Transportation, or any term of a certificate or permit issued under the Act will be punishable by law[xi].

A person is liable to the U.S. Government for a civil penalty for violating certain enumerated statutory provisions or a regulation prescribed or order issued under any such provision[xii].

The liability of the owner of one aircraft to the owner of another aircraft, or to aeronauts or passengers on either aircraft, for damage caused by collision on land or in the air, will be determined by the rules of law applicable to torts on land[xiii].

Ordinary rules of negligence are applicable to cases of damage to persons and property caused by aircraft[xiv].  The allegations requisite to a cause of action for negligence are[xv]:

  • facts showing the defendant had a duty of care,
  • negligence constituting a breach of the duty, and
  • injury to the plaintiff as a proximate result.


Generally, the law of the place where the tort or wrong has been committed is the law by which liability is determined[xvi].  The lex loci delicti, or place of the tort or wrong, determines the substantive rights of the parties in airplane crash cases[xvii].

In an action for personal injuries received in an airplane accident, the plaintiff has the burden of proving that the operator or the aviator was negligent in the operation of the airplane and of showing that such negligence was the proximate cause of the injury complained of.

The maxim of res ipsa loquitur is applicable to airplane accidents.  In a case where the maxim res ipsa loquitur is applicable, a plaintiff does not lose the benefit of it by alleging specific acts of negligence which he fails to prove[xviii].

The Code of federal regulation provides that a person may not operate an aircraft in a careless or reckless manner so as to endanger the life or property of another[xix].  A pilot has a duty to remain vigilant throughout the flight.

The rule of liability applicable to aircraft is that if the aircraft is operated in a negligent manner the pilot in command is negligent regardless of whether or not s/he is at the controls at the time, at least in the absence of extenuating circumstances such as sudden illness[xx].

Also, the air carrier may be held liable for injuries or damage proximately caused by the negligence of its authorized personnel in operating the carrier’s aircraft.

[i] 49 USCS § 40102.

[ii] Bew v. Travelers’ Ins. Co., 95 N.J.L. 533 (E. & A. 1921).

[iii] Swasey v. Massachusetts Protective Asso., 96 F.2d 265, 266 (9th Cir. Ariz. 1938).

[iv] Smith v. New England Aircraft Co., 270 Mass. 511 (Mass. 1930).

[v] Cheskov v. Port of Seattle, 55 Wn.2d 416 (Wash. 1960).

[vi] United States v. Causby, 328 U.S. 256 (U.S. 1946).

[vii] Antonik v. Chamberlain, 81 Ohio App. 465 (Ohio Ct. App., Summit County 1947).

[viii] Thrasher v. Atlanta, 178 Ga. 514 (Ga. 1934).

[ix] Guith v. Consumers Power Co., 36 F. Supp. 21 (D. Mich. 1940).

[x] Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639 (Tenn. 1962).

[xi] 49 USCS § 46316.

[xii] 49 USCS § 46301.

[xiii] Finfera v. Thomas, 119 F.2d 28, 30 (6th Cir. Mich. 1941).

[xiv] Todd v. Weikle, 36 Md. App. 663 (Md. Ct. Spec. App. 1977).

[xv] Peter W. v. San Francisco Unified Sch. Dist., 60 Cal. App. 3d 814 (Cal. App. 1st Dist. 1976).

[xvi] Ferguson v. TWA, 135 F. Supp. 2d 1304 (N.D. Ga. 2000).

[xvii] Yates v. Lowe, 179 Ga. App. 888 (Ga. Ct. App. 1986).

[xviii] Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639 (Tenn. 1962).

[xix] 14 CFR 91.9.

[xx] Lange v. Nelson-Ryan Flight Service, Inc., 259 Minn. 460 (Minn. 1961).

Inside Aviation