ternational aviation," 12 influencing domestic liability policies of member and non-member states alike,13 it has nevertheless found a less ready acceptance in the United States.14 Frequently attacked in the courts as cementing undesirable provisions into an otherwise progressively evolving domestic policy, the treaty has been upheld as constitutional on several counts.15 Assaults have centered primarily upon the treaty's limitation of carrier liability to 125,000 gold francs 16 ($8,291) unless the carrier be proved guilty of "wilful misconduct"; 17 but despite benefits to passengers resulting from the presumption of carrier liability, 18 this wrongful death limitation has generated continued controversy.

Opposition to the treaty intensified following the famous 1953 court decision limiting singer Jane Froman to a Warsaw award of $8,300 despite actual damages in excess of one million dollars incurred in a 1943 Portugal landing accident.19 To encourage amendment of the

12 Ibid.

13 Many European and South American states, including the United Kingdom, France, Belgium, Luxemburg, Greece and Switzerland, Argentina, Brazil, Mexico, and Uruguay, have adopted the Warsaw Rules into their own liability laws. Sand, Air Carrier's Limitation of Air Passengers' Accident Compensation Under the Warsaw Convention, 28 J. AIR L. & COM. 260, 264-65 (1962).

14 When the Convention terms were completed in 1929 by the major European aviation and governmental interests. United States representatives participated only as observers. Five years later, United States international air traffic was still limited to one airline flying to Cuba; but the President and his advisors optimistically concluded that future aviation and passenger interests could be best served by signing and adopting the treaty See Report by Secretary of State Cordell Hull to President Franklin D. Roosevelt, Feb. 7, 1934, in S. EXEC. Doc. No. G, 73d Cong., 2d Sess. 3 (1934). On June 15, 1934, the Senate advised adherence, subject to the reservation under the "Additional Protocol," and the President proclaimed it as law on October 29, 1934. Comprehensive treatment of the Convention and its many subsequent developments has been given by the following authorities: DRION, LIMITATION OF LIABILITIES IN INTERNATIONAL AIR LAW (1954); Calkins, Grand Canyon, Warsaw and the Hague Protocol, 23 J. AIR L. & COм. 253 (1956); Ereli, The Hague Protocol: An Abuse of Executive Discretion? 11 U.C.L.A.L. REV. 358 (1964); Karlin, Warsaw, Hague, the 88th Congress and Limited Damages in International Air Crashes, 12 DE PAUL L. REV. 59 (1963); Kreindler, The Denunciation of the Warsaw Convention, 31 J. AIR L. & COм. 291 (1965) Lowenfeld & Mendelsohn, supra note 11; Orr, The Warsaw Convention, 31 VA. L. REV. 423 (1945); Reiber, supra note 10; Sand, supra note 13.

15 It has been challenged in the courts as unconstitutionally interfering with Congress' right to control foreign commerce, Indemnity Ins. Co. of No. Am. v. Pan American Airways, Inc., 58 Supp. 338 (S.D.N.Y. 1944); Wyman v. Pan American Airways, Inc., 181 Misc. 963, 43 N.Y.S.2d 420, aff'd 267 App. Div. 947, 48 N.Y.S.2d 459 (1944); as depriving plaintiffs of their right to trial by jury for the determination of damages, Pierre v. Eastern Air Lines, 152 F. Supp. 486 (N.J. 1957); and as contravening state law, Da Costa v. Caribbean Int'l Airways, 4 Av. L. REP. ¶ 17,792 (1955).

16 Warsaw Convention art. 22. Although the value of gold francs has fluctuated upward in the United States since the limitation was originally fixed, it has not kept pace with the heightening costs of living. Orr, The Rio Revision of the Warsaw Convention, 21 J. AIR L. & COм. 174 (1954).

17 Warsaw Convention art. 25. "Wilful misconduct" in a term of art with varied constructions. See generally Acosta, Wilful Misconduct under the Warsaw Convention: Recent Trends and Developments, 19 U. MIAMI L. REV. 575 (1965); Kreindler, supra note 14, at 295; Strock, Warsaw Convention-Article 25-"Wilful Misconduct," 32 J. AIR L. & COм. 291 (1966).

18 Warsaw Convention art. 17. This presumption of liability can be defeated only by proving that the carrier took "all necessary measures to avoid the damage" or that "it was impossible. to take such measures." Id. at art. 20 (1). Other benefits accruing to both carrier and passenger include a uniform body of substantive law providing available forums in which to bring suit, id. at art. 28; and for the handling of documents and shipping liability. It is said that no other business has its own international system of law laid down for the benefit not only of carriers and shippers but also of passengers. Testimony by Stuart G. Tipton, President of the Air Transport Association, Hearings on the Hague Protocol to the Warsaw Convention Before the Senate Committee on Foreign Relations, 89th_Cong., 1st Sess. Pt. 2. at 49 (1965) [hereinafter cited as 1965 Senate Hearings].

19 Froman v. Pan American Airways, 284 App. Div. 935. 135 N.Y.S.2d 619 (1954), leave to appeal denied, 308 N.Y. 1050, cert. denied, 349 U.S. 947 (1955); Ross v. Pan American Airways, 299 N.Y. 88. 85 N.E.2d 880 (1949). Congress in 1962 passed a special relief bill for Miss Froman and the other injured USO entertainers aboard the ill-fated airliner, in the sum of $20,000 each as "full and final settlement of the respective claims . . . against the United States." Priv. L. No. 87-684, 76 Stat. 1411 (1962).

treaty's unrealistic limitations, the Eisenhower Administration called for an international conference in 1955 at The Hague, and there proposed to triple the Warsaw amount to $25,000. The most that could be achieved, however, was a compromise at $16,000, or twice the Warsaw limit, which the President signed in June 1956 as the Hague Protocol.20 It was not until July 1959 that the Protocol was submitted to the Senate for approval as an amendment to the Warsaw Convention; there it languished in committee until President Kennedy had it withdrawn in June 1961 for further study.21 On August 7, 1964, the Secretary of State resubmitted the Hague Protocol to the Senate Foreign Relations Committee with a recommendation that it be ratified only after it was implemented by legislation imposing upon American flag-carriers automatic, compulsory trip insurance in the amount of $50,000.22

Committees in both houses reported resistance to the Government's proposal for strict-liability insurance legislation, and even to the perpetuation of limited liability through the Hague Protocol; some witnesses suggested that the United States withdraw from the WarsawHague system altogether. Denunciation, however, would admit de

23

Protocol Amending the Convention for the Unification of Certain Rules Relating to International Carriage by Air (The Hague Protocol), S. EXEC. Doc. No. H, 86th Cong., 1st Sess. 5 (1959); 3 Av. L. REP. 27,101 (1966). At The Hague, the United States' proposal was opposed by a majority of states which had determined two years previously in Rio de Janeiro that a 50 per cent increase was adequate. Lowenfeld & Mendelsohn, supra note 11, at 504-06. It was only after this country agreed to proscribe several loopholes which would allow recovery beyond the agreed limitation that the other nations broke the impasse with a compromise. See generally Lowenfeld & Mendelsohn, supra note 11, at 505-09; Kreindler, supra note 10. at 295-97. The Administration was generally satisfied that nothing more could be achieved at the international level. See Letter of Comment, September 12, 1956, in S. EXEC. Doc. No. H, 86th Cong., 1st Sess. 21 (1959) [hereinafter cited as S. EXEC. Doc. No. H].

21 See generally Kreindler, supra note 14, at 297-98; Lowenfeld & Mendelsohn, supra note 11, at 533-38.

22 An executive interagency committee called the Interagency Group on International Aviation (IGIA), composed of the Federal Aviation Agency, the Civil Aeronautics Board, and the executive Departments of State, Commerce, Defense, Justice and Labor, had studied suggestions that the 1938 Federal Aviation Act be amended to require United States flag-carriers to accept liability limitations of $50,000 on a proof-of-fault basis, as well as a requirement of automatic, compulsory insurance in the amount of $25,000, or twice the Hague ceiling, before reaching a compromise plan which combined the $50,000 proposal with absolute liability. See authorities cited note 21 supra; 1965 Senate Hearings 118-20.

23 Initial opposition to the insurance legislation was registered by the airlines and insurance industries, followed by various trial lawyers' associations and even the FBI. Opposition was based on the strict liability provisions, which allegedly provided incentive to sabotage airplanes for insurance, thereby making detection by purchase of private coverage more difficult. Most witnesses encouraged a return to common law principles of full compensatory damages upon proof of fault. Many private attorneys, professors, university deans, and lawyers' associations went on record favoring United States withdrawal from the Warsaw System. 1965 Senate Hearings 26-28; see Lowenfeld & Mendelsohn, supra note 11. at 538-46. The Foreign Relations Committee seemed uncertain about the manner of withdrawing:

Senator CARLSON. Mr. Speiser, you suggest that we denounce Convention.

Mr. SPEISER. Yes.

...

the Warsaw

Senator CARLSON. That gets to be an executive act, I think, and only the President can do that, isn't that correct?

Mr. SPEISER. I have discussed this with the State Department and apparently the United States has denounced treaties in two ways, either by the President alone and [sic] the Senate.

Senator CARLSON. I would assume that the Senate, of course, could advise the President by resolution. We probably could cut off funds and we probably have other methods, but personally, I would feel that it would be an executive act.

1965 Senate Hearings 62. See also the questioning of Mr. Buschmann by Senator Sparkman, id. at 42.

The primary result of the committee hearings was a report dated June 29, 1965, recommending ratification of the protocol unless the complementary insurance program was "not enacted within a reasonable time (i.e., prior to the adjournment of the 89th Congress)." in which case "the Department of State should take immediate steps to denounce the Warsaw Convention and The Hague Protocol." Dep't of State Letter, supra note 5, at 244. See 1965 Senate Hearings 6-7; Lowenfeld & Mendelsohn, supra note 11, at 544-46.

feat of a major administration commitment.24 As a final alternative to political embarrassment, the President through the State Department proposed that, pending another international attempt to amend the Warsaw treaty by conference scheduled for February 1966 in Montreal, all United States carriers voluntarily waive their limits upward to $100,000 by filing new tariffs with the Civil Aeronautics Board.25 When it became clear that the airline companies would not agree to more than $50,000,26 and that the Hague-insurance package would be rejected by Congress,27 the Administration on November 15, 1965 formally denounced the treaty by notice to take effect six months after delivery.28

The Department of State disclosed that denunciation was not, however, unconditional. Rather, it would be rescinded if (1) the results of the Montreal conference indicated reasonable international support for the new Warsaw limit of $100,000 per passenger, and (2) the principal world carriers agreed to a provisional limit of $75,000 until a higher limitation could be implemented.29 At Montreal, the Government proposal received virtually no support, and the conference ended inconclusively. But Andreas F. Lowenfeld and Allan I. Mendelsohn, two United States delegates to the Montreal conference, thereafter noted: "[T]he feeling was beginning to spread that if the United States withdrew from Warsaw the whole treaty would unravel..." and that many countries appeared willing to make high concessions to prevent withdrawal.30

Capitalizing on this feeling, the Administration on March 7, 1966, suddenly altered the terms of a "satisfactory interim arrangement" by designating forty-three United States and foreign flag-carriers who must accept a new limit of $75,000 on an absolute liability basis in order to avoid denunciation.31 By the eve of the May 15 deadline, all

24 [I]t was felt within the Government that the United States had been the moving party at The Hague, that a substantial number of other countries had followed the American lead, and that it would be somehow improper for the United States now to abandon its own creation." Lowenfeld & Mendelsohn, supra note 11, at 532-33, 546-47; Kreindler, supra note 14, at 300-01.

25 Dep't of State Letter, supra note 5, at 244; Lowenfeld & Mendelsohn, supra note 11, at 547-50. See note 123 infra and accompanying text.

26 The airlines responded with a documented counter-proposal of $50,000 maximum drawn from information regarding recent settlements and injury verdicts, economic characteristics of United States passengers, indemnity practices of Government and industry, private bills passed by Congress for special compensation, and liability limitations established by state and federal statutes, encompassing the years 1950 to 1964. Kreindler, supra note 14, at 301. International cooperation in support of a $50,000 limitation was obtained among many nations that had previously refused to go beyond $16.000 at The Hague, but signed a mail petition circulated by the IATA for the purpose of preventing United States denunciation of the Warsaw treaty. See Flight International, Sept. 23, 1965, p. 538; Lowenfeld & Mendelsohn, supra note 11, at 547-555.

27 Chairman Mike Monroney of the Senate Commerce Subcommittee on Aviation advised the President that the strict liability legislation lacked support, and that without a better alternative, the protocol would also fail of approval. Kreindler, supra note 14, at 300-01. During the summer of 1965, Congressman Wolff introduced a resolution asking Congress to go on record in favor of denunciation, which four Senators supported in a speech on the Senate floor, Kreindler, supra note 14, at 300-01; Lowenfeld & Mendelsohn, supra note 11, at 546-49.

28 See note 3 supra.

29 Dep't of State Letter, supra note 5, at 245.

30 Lowenfeld & Mendelsohn, supra note 11, at 590. See also Lowenfield & Mendelsohn at 569, 586-87. Of the fifty-nine states and 121 carriers in attendance at Montreal, a few preferred the old Hague limits of $16,000. But most were willing to go as high as $33,000 or $50,000 and some even to $75,000 to avert United States denunciation of the treaty. A variety of plans presented at the conference is discussed in Lowenfeld & Mendelsohn, supra note 11, at 563-75. The concern over United States withdrawal is understandable in view of the fact that this country's airlines fly more international air miles than all foreign carriers combined. S. Exec. Doc. No. H 22; Ereli, supra note 14, at 362.

The reappearance and subsequent adoption by the carriers of strict liability despite its defeat at Montreal and the historic opposition by the United States to that principle of liability is carefully described by Lowenfeld & Mendelsohn, supra note 11, at 558–61, 587-96.

but three of the specified airlines had come to terms; 82 the Department of State was able dramatically to retract its notice of denunciation; 33 and the revised but still viable Warsaw Convention continued in force in the United States.

II. THE POWER OF TREATY TERMINATION

The entire Warsaw-Hague-Montreal sequence illustrates that on occasion the power to break treaties can create new policies far more quickly than the power to make treaties. Lowenfeld and Mendelsohn concluded that, primarily through skillful utilization of that power, "it came about that almost overnight, and without normal constitutional and legislative processes, the character of a major international treaty changed completely...." 34 This executive fait accompli resulted in implementing terms even greater than had been rejected by the treaty members at The Hague and Montreal, by Congress, and by the carriers themselves. It has been suggested that even though the President thereafter cancelled the denunciation, he may again threaten to withdraw from the Convention if the interim arrangement does not soon lead to "a multilateral replacement treaty for the Warsaw-Hague combination," 35 In such event, a unique opportunity would be presented to litigate the issue whether the President alone may constitutionally terminate private rights established by treaty, since the executive branch has seldom terminated self-executing treaties which directly affect individual parties and since the question has never been directly met by an American court.36

Most treaties relate merely to external governmental relations between countries. But Chief Justice Marshall explained that certain self-executing treaties create, in addition, an internal body of law governing rights between private parties:

32 The three holdouts were American carriers-United, Delta, and National-which "announced that they would agree to waive their liability limits in Warsaw cases to $75,000 per passenger, though they would not agree to absolute liability." Id. at 595. Even these carriers have now signed the Montreal agreement. 3 Av. L. Rep. ¶ 27,130 (1966).

33 The question whether a state could withdraw an instrument of denunciation after it had been deposited is raised by Sincoff, Absolute Liability and Increased Damages in International Aviation Accidents, 52 A.B.A.J. 1122, 1124 (1966), who asserts that the United States is no longer a party to the Warsaw Convention, since only denunciation and not withdrawal of that denunciation was authorized by the treaty. But the problem is seemingly resolved by at least seven precedents in which the President withdrew notice of termination prior to the effective date. Concerning treaties with Great Britain, see H.R. Doc. No. 471, 56th Cong., 1st Sess. 28-34 (1856); Norway (1919), see 1 Foreign Rel. U.S. 47-52 (1934); Spain (1919), see 1 id. at 54-57 (1953); Italy (1917), see 1 id. at 18-26 (1926); Greece (1920), see 2 id. at 710-15 (1936); Estonia (1935), see 2 id at 187-88 (1952), (and 1936), see 2 id. at 66-69 (1954); The International Whaling Convention, 40 Dep't State Bull. 110, 144, 332 (1959), see 41 id. at 101 (1959), 46 id. at 154, 890, 1041 (1962). These precedents are cited in Crandall Treaties: Their Making and Enforcement 462-63 (2d ed. 1916); Hackworth Digest of International Law 314-16 (1943); McClure, International Executive Agreements 17 (1941); Levitan, Executive Agreements: A Study of the Executive in the Control of the Foreign Relations of the United States, 35 Ill., L. Rev. 365, 377 (1940); Lowenfeld & Mendelsohn, supra note 11, at 550 n. 177. Significantly, a joint resolution sponsored by twenty-nine Senators_directing the President not to withdraw the notice of denunciation of the Warsaw Convention was introduced in May 1966 and is currently pending before the Foreign Relations Committee. Lowenfeld & Mendelsohn, supra note 11, at 594; 112 Cong. Rec. 9087 (daily ed. May 3, 1966).

34 Lowenfeld & Mendelsohn, supra note 11, at 601. Throughout their discussion of the "series of sometimes complicated, always controversial, and often misunderstood events," ibid., the authors seem to contend that the new arrangement could not have been imposed without the use of this effective policy-enforcing tool.

35 Riggs, Termination of Treaties by the Executive Without Congressional Approval: The Case of the Warsaw Convention, 32 J. AIR L. & COм. 526, 527 (1966).

Id. at 528. However, many cases dealing with closely related issues are cited in note 58 infra, and others are discussed hereinafter.

A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished . . . but is carried into execution by the sovereign power of the respective parties to the instrument.

37

In the United States, a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. Insofar as a treaty is an international contract, it may be terminated in several ways: 38 (1) it may expire ipso facto because the period for which the treaty was entered into has elapsed; because its provisions are since fulfilled; because the performance becomes impossible; because of war; or because the subject matter has been extinguished. (2) It may be superceded by a new treaty covering the same subject matter, or by one wholly inconsistent with the earlier treaty. (3) It may be rescinded by mutual consent. (4) Unilateral notice of denunciation may be given because the other party to the treaty has breached its terms; and treaties like the Warsaw Convention may be terminated by notice as specified by its own terms. When a treaty is terminated by notice, it is to local, not international, law that the parties must look to derive their source of authority.39

In the United States, this task is made difficult by the fact that the Constitution apportions the powers to control foreign affairs between the President, Congress, and the Senate. It expressly locates the treatymaking agency. But as to the matter of termination, it is strangely silent. The Executive is granted the power to make treaties "by and with the advise and consent of the Senate"; 40 but because a treaty becomes the "supreme law of the land," 41 it cannot bind the United States internally or externally until "two-thirds of the Senators present concur." 42 Congress, on the other hand, has exclusive power to enact all legislation, "to pay the debts," and "to regulate commerce with foreign nations." 45 Thus, there exists language in the Constitution which could be construed as placing the power to terminate inter

43

87 Foster v. Neilsen, 27 U.S. (2 Pet.) 253, 314 (1829). Marshall's explanation has been frequently repeated, e.g., Terlinden v. Ames, 184 U.S. 270, 288 (1902); Rhode Island v. Massachusetts, 37 U.S. (12 Pct.) 657, 747 (1838); United States v. Arredondo, 31 U.S.. (6 Pct.) 691, 735 (1832).

U.S. Const. art. VI. § 2 provides: "This Constitution, and the Laws of the United States. which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the Supreme Law of the Land; and the Judges of every State shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding." On the internal binding effect of treaties, see United States v. Belmont, 301 U.S. 324, 331-32 (1937); Asakura v. Seattle, 265 U.S. 332 (1924); Missouri v. Holland, 252 U.S. 416 (1920).

38 See generally 5 HACKWORTH, op. cit. supra note 33, at 297-98; 5 MOORE, DIGEST OF INTERNATIONAL LAW 319 (1902); Riesenfeld. The Power of Congress and the President in International Relations: Three Recent Supreme Court Decisions, 25 CALIF. L. REV. 643 (1937).

30 Id. at 656-58. At the threshold is the problem whether the power of termination exists at the federal level or remains with the states under the tenth amendment. "It is evidently clear, however, that by a reasonable construction some department of the federal government must possess the power, and the question is only where does it rest." Id. at 656. 40 U.S. CONST. art. II. § 2.

41 U.S. CONST. art. VI.

42 U.S. CONST. art II, § 2. Regarding the ability to bind the United States externally, see authorities cited note 112 infra.

43 U.S. CONST. art. I, § 1.

44 U.S. CONST. art. I, § 8.

45 U.S. CONST. art. I, § 8.