106

Implementation of International Civil 

Aviation Agreements

If a valid reciprocal arrangement has been entered into between the United States and a foreign 

country, the Civil Aeronautics Authority is authorized under existing law to grant to a foreign 

aircraft a permit to fly across the United States without landing or a permit to land for non-traffic 

purposes.

February 6, 1945

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL*

The State Department has requested the informal advice of the Attorney General on a question that has arisen in connection with the International Air Services 

Transit Agreement, commonly called the “Two Freedoms Agreement,” and the 

International Air Transport Agreement, frequently referred to as the “Five 

Freedoms Agreement,” drawn up at the International Civil Aviation Conference 

held in Chicago in the fall of 1944. These agreements grant to the signatory 

powers certain privileges with respect to “scheduled international air services.” It 

is in connection with these privileges that the following question has risen: 

Assuming that reciprocal rights have been granted by some valid arrangement 

between the United States and a foreign country, is the Civil Aeronautics Authority authorized under existing law to grant to aircraft of the foreign country a license 

or certificate (1) to fly across United States territory without landing; and (2) to 

land in the United States for non-traffic purposes (e.g., refueling)?

The State Department has not asked this Department to examine the details of 

these agreements, or to comment on the Convention on Civil Aviation or the 

Interim Agreement on Civil Aviation drawn up at Chicago. The State Department 

has not asked us to consider whether the agreements require ratification by the 

Senate or may be executed as executive agreements. The only question that has 

been put to us relates to the construction of the statutes regulating civil aviation 

and we shall confine the discussion in this memorandum to that point. The 

question of statutory construction, however, does have a bearing on the question 

whether the agreements may properly be executed as executive agreements for the 

following reason: If the agreements required or contemplated action by the Civil 

Aeronautics Authority or any other agency of the government that was unauthor-

 

* Editor’s Note: The cover memorandum attached to this memorandum opinion states that “Mr. 

Acheson [presumably Dean Acheson, then Assistant Secretary of State, later Secretary of State under 

President Truman] is very eager to get our views on this; he has called me twice in the past week. It 

may be that you will wish to submit a copy of my memorandum to Mr. Acheson for his comments 

before you decide whether you agree with the conclusion reached in the memorandum.” The cover 

memorandum states further: “The State Department has not asked us for a formal opinion, and you will 

recall that in his conference with us Mr. Acheson said he was not sure that the State Department would 

make this request.”
Implementation of International Civil Aviation Agreements

107

ized or forbidden by domestic law, a serious question might arise as to whether the 

agreements could be consummated as executive agreements. If it is concluded that 

the Civil Aeronautics Authority is authorized by existing law to grant to foreign 

aircraft a license or certificate to fly across United States territory without landing 

or to land in the United States for non-traffic purposes, the problem of the 

agreements contemplating action not authorized by existing law does not arise.

I. Statutes Involved

Section 6 of the Air Commerce Act of 1926, Pub. L. No. 69-254, 44 Stat. 568, 

572, as amended by the Civil Aeronautics Act of 1938, Pub. L. No. 75-706, 52 

Stat. 973,1 provides in part as follows:

(a) The United States of America is hereby declared to possess and 

exercise complete and exclusive national sovereignty in the air space 

above the United States . . . .

(b) Foreign aircraft not a part of the armed forces of the foreign nation shall be navigated in the United States only if authorized as 

hereinafter in this section provided.

(c) If a foreign nation grants a similar privilege in respect of aircraft 

of the United States, and/or airmen serving in connection therewith, 

the Civil Aeronautics Board may authorize aircraft registered under 

the law of the foreign nation and not a part of the armed forces 

thereof to be navigated in the United States. No foreign aircraft shall 

engage in air commerce otherwise than between any State, Territory, 

 

1 Section 1107(i) of the Civil Aeronautics Act of 1938 amended section 6 of the Air Commerce Act 

of 1926. Among other things, section 1107(i) struck out the last part of section 6(a) and added the last 

sentence of section 6(c) as quoted in the text. In its original form, section 6(c) contained the following 

language limiting the authority to permit foreign aircraft to be navigated in the United States: “but no 

foreign aircraft shall engage in interstate or intrastate air commerce.” Pub. L. No. 69-254, 44 Stat. at 

572.

The Air Commerce Act of 1926 contains the following definitions:

That as used in this Act, the term “air commerce” means transportation in whole or in 

part by aircraft of persons or property for hire, navigation of aircraft in furtherance of 

a business, or navigation of aircraft from one place to another for operation in the 

conduct of a business. As used in this Act, the term “interstate or foreign air commerce” means air commerce between any State, Territory, or possession, or the District of Columbia, and any place outside thereof; or between points within the same 

State, Territory, or possession, or the District of Columbia, but through the airspace 

over any place outside thereof; or wholly within the airspace over any Territory or 

possession or the District of Columbia.

Pub. L. No. 69-254, § 1, 44 Stat. at 568, codified at 49 U.S.C. § 171 (1940).

As defined in the 1926 statute, the term “United States” includes the overlying airspace. Id. § 9(b), 

44 Stat. at 573, codified at 49 U.S.C. § 179(b) (1940).
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or possession of the United States (including the Philippine Islands) 

or the District of Columbia, and a foreign country.

49 U.S.C. § 176 (1940).

2

Section 1 of the Civil Aeronautics Act of 1938 contains the following definitions:

(3) “Air commerce” means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or 

navigation of aircraft within the limits of any civil airway or any operation or navigation of aircraft which directly affects, or which may 

endanger safety in, interstate, overseas, or foreign air commerce.

. . . .

(16) “Civil airway” means a path through the navigable air space of 

the United States, identified by an area on the surface of the earth, 

designated or approved by the Administrator as suitable for interstate, overseas, or foreign air commerce.

. . . .

(25) “Navigation of aircraft” or “navigate aircraft” includes the piloting of aircraft.

. . . .

(31) “United States” means the several States, the District of Columbia, and the several Territories and possessions of the United States, 

including the Territorial waters and the overlying air space thereof.

Pub. L. No. 75-706, 52 Stat. at 977–80, codified at 49 U.S.C. § 401 (1940).

 

2 The authority conferred by this section was originally vested in the Secretary of Commerce. 

Pub. L. No. 69-254, § 6(c), 44 Stat. at 572. As amended by the Civil Aeronautics Act of 1938, 

§ 1107(i)(1), 52 Stat. at 1028, subsection (c) referred to the Civil Aeronautics Authority. Section 7(b) 

of Reorganization Plan 4 changed the title of the Civil Aeronautics Authority to “Civil Aeronautics 

Board” and made other changes not relevant here. 5 Fed. Reg. 2421, 2422 (June 29, 1940). The term 

“Civil Aeronautics Authority” is now used to refer to the Civil Aeronautics Board and the Administrator of Civil Aeronautics considered together. In this memorandum we shall use the title “Civil 

Aeronautics Authority” without discussing whether the authority given by section 6(c) of the Air 

Commerce Act may be exercised by the Civil Aeronautics Board or by the Administrator or by both. 

See Permits for Flight of Foreign Aircraft into the United States, 40 Op. Att’y Gen. 136 (Sept. 12, 

1941).
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109

II. Text

In section 6 of the Air Commerce Act, the Congress asserted sovereignty over 

the airspace above the territory of the United States and reserved to American 

aircraft all rights of “cabotage” (e.g, air traffic between points within a single state, 

between two states or between the United States and any of its possessions or 

territories). The section, however, authorizes the Civil Aeronautics Authority to 

grant certain flight privileges to foreign aircraft. The only question discussed in 

this memorandum is whether foreign aircraft may be authorized to make non-stop 

flights over the United States or to land for non-traffic purposes in the United 

States. In neither case would the foreign aircraft be authorized to pick up passengers or freight at any point in the United States, its territories or possessions 

destined for any other point in the United States, its territories or possessions.

The first sentence of section 6(c) authorizes the Civil Aeronautics Authority to 

permit foreign aircraft “to be navigated in the United States.” In its ordinary 

meaning and as defined in the act, “navigation” includes any flight by aircraft 

whether or not a landing is made; both non-stop flight and transit flight with the 

privilege of landing for non-commercial purposes necessarily involve the navigation of aircraft in the airspace over the United States. Therefore, if the first

sentence of section 6(c) stood alone, it would authorize the Civil Aeronautics 

Authority to grant a permit for the type of flight discussed in this memorandum. It 

is necessary, however, to consider the limitation placed on this sentence by the 

second sentence of section 6(c).

That sentence provides that foreign aircraft may not engage in “air commerce 

otherwise than between any State, Territory or possession of the United States 

(including the Philippine Islands) or the District of Columbia, and a foreign 

country.” For the purpose of deciding how this sentence should be interpreted we 

shall first consider the meaning of the term “air commerce” and then discuss the

requirement that air commerce must be between a state, territory or possession of 

the United States, or the District of Columbia, and a foreign country.

As defined in section 1(3) of the Civil Aeronautics Act, the term “air commerce” includes any navigation of aircraft within the limits of a civil airway or any

navigation of aircraft which may endanger the safety of operations in air commerce. Under this definition any flight by aircraft into the airspace of the United 

States would appear to be “air commerce.” Both non-stop flights and transit flights 

with non-traffic landing privileges are, therefore, “air commerce” within this 

definition.3

 

3

If section 6(c) is examined in the light of the definition of “air commerce” contained in the 1926 

statute, it is none the less clear that under section 6(c) the Civil Aeronautics Authority may authorize 

non-stop flight by foreign aircraft as part of a scheduled international air service. As defined in the 

1926 statute, “air commerce” includes the navigation of aircraft in the furtherance of a business. 49 
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110

If a foreign aircraft en route from one foreign point to another stops at some 

point in the United States or one of its possessions for a non-traffic purpose, it 

seems clear that the aircraft is engaged in air commerce between a “State, 

Territory or possession of the United States (including the Philippine Islands) or 

the District of Columbia, and a foreign country” within the meaning of the statute. 

There remains for consideration the question whether a non-stop flight by a

foreign aircraft over American territory en route from a point in one foreign 

country to another foreign point also falls within the statutory language. When an 

aircraft enters the airspace over any part of the United States, including its 

territories and possessions, it has entered the United States as much as if it had 

landed within the territorial boundaries, since the United States has sovereignty 

over the overlying airspace. Cf. United States v. One Pitcairn Bi-Plane, 11 F.

Supp. 24 (W.D.N.Y. 1935). For the purpose of subsection (c) it does not appear to 

make any difference whether the foreign aircraft returns by the same route it 

entered the United States. The section refers to “any” foreign country and does not 

require the aircraft to leave the United States by the same route it followed when 

entering.

Section 6(c) of the Air Commerce Act does not prohibit a foreign aircraft from 

entering the airspace over more than one state, territory or possession of the

United States. The section refers to “any” state, territory, or possession and does 

not limit the application of the section to states which are on the boundary of the 

United States. In addition, subsection (c) refers to the District of Columbia. It 

would not be possible for a foreign aircraft to fly into the airspace over the District 

of Columbia without crossing the airspace of some other state. It is obvious, 

therefore, that the statute does not contemplate that the foreign aircraft is prohibited from entering any state other than a border state.

This construction of section 6(c) is reinforced by a consideration of the purposes of the Civil Aeronautics Act of 1938. Section 3 of that Act declares that the 

purpose of the statute is to promote the development of air transportation. If the 

statute were construed to prohibit the Civil Aeronautics Authority from granting a 

certificate to foreign aircraft for non-stop flight as part of a scheduled international 

air service, even though the foreign government was willing to grant reciprocal

privileges, the foreign government would undoubtedly refuse such privileges to 

American air lines. As a result, the development of international air transport 

services by American carriers would be hampered rather than encouraged.

III. Administrative Construction

Administrative practice under both the Air Commerce Act of 1926 and the 

Civil Aeronautics Act of 1938 supports the construction of section 6(c) outlined in 

 

U.S.C. § 171. Non-stop flights or transit flights with the privileges of non-traffic landing carried on as a 

part of a regularly scheduled air service appear to be included within this definition of air commerce.
Implementation of International Civil Aviation Agreements

111

this memorandum. Under the 1926 statute, a number of bilateral agreements 

relating to air navigation were entered into between the United States and other 

countries granting, among other things, reciprocal privileges of non-stop flight, 

subject to various limitations not relevant here and to the rules and regulations of 

each country. See Air Navigation Agreement, U.S.-It., Oct. 31, 1931, E.A.S. 

No. 24; Air Navigation Agreement, U.S.-Swe., Oct. 9, 1933, E.A.S. No. 47; Air 

Navigation Agreement, U.S.-Nor., Nov. 15, 1933, E.A.S. No. 50; Air Navigation

Agreement, U.S.-S. Afr., Sept. 20, 1933, E.A.S. No. 54; Air Navigation Agreement, U.S.-Den., Apr. 16, 1934, E.A.S. No. 58; Air Navigation Agreement, U.S.-

Gr. Brit., May 5, 1935, E.A.S. No. 76; Air Navigation Agreement, U.S.-Ir., Dec. 4, 

1937, E.A.S. No. 110.

Since 1938 bilateral agreements conferring similar privileges have been entered 

into. See Air Navigation Agreement, U.S.-Can., Aug. 1, 1938, E.A.S. No. 129; Air 

Transport Services Agreement, U.S.-Can., Aug. 18, 1939, E.A.S. No. 159; Air 

Navigation Agreement, U.S.-Fr., Aug. 15, 1939, E.A.S. No. 152; Air Navigation

Agreement, U.S.-Liber., June 15, 1939, E.A.S. No. 166.

Since April 7, 1939 the Trans-Canada Air Lines has been operating under a 

permit granted by the Civil Aeronautics Authority authorizing non-stop flights by 

Canadian aircraft over the State of Maine en route between Toronto, Canada and 

Halifax, Nova Scotia. The Civil Aeronautics Authority has also issued a permit to 

the Canadian Colonial Airways, Inc., authorizing flights between Montreal, 

Canada, and Nassau in the Bahamas with a stopover for non-traffic purposes in 

Jacksonville, Florida.

IV. Legislative History

The legislative history does not offer positive assurance with respect to the 

construction of section 6(c) of the Air Commerce Act. Non-stop flights by foreign 

aircraft and transit flights with the privilege of landing for non-traffic purposes 

were not the subject of debate in Congress at the time of the passage of the Civil 

Aeronautics Act of 1938. However, the agreements executed under the Air 

Commerce Act were not criticized or repudiated by the Congress. The legislative 

history indicates in this respect that the Congress intended to make no substantial 

change in section 6(c) of that Act.

V. Conclusion

It is my view that the Department of State may be advised informally that if a 

valid reciprocal arrangement has been entered into between the United States and 

a foreign country, the Civil Aeronautics Authority is authorized under existing law 

to grant to a foreign aircraft a permit to fly across the territory of the United States 

without landing or a permit to land for non-traffic purposes in the United States, 

subject to compliance with the laws and regulations of the United States.
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112

It is unnecessary to discuss in this memorandum whether a non-stop flight with 

or without the privilege of landing for technical reasons is the kind of air transportation for which a permit must be granted under section 401 or 402 of the Civil 

Aeronautics Act of 1938. Cf. Canadian Colonial Airways, Inc.—Investigation, 

2 C.A.B. 752, Docket No. 601 (July 7, 1941). It is also unnecessary to discuss 

conditions that should be attached by the Civil Aeronautics Authority to any 

certificate issued to foreign aircraft.

I am attaching a memorandum prepared by Mr. Eberly discussing these questions in greater detail.

HUGH B. COX

Assistant Solicitor General
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January 29, 1945

MEMORANDUM FOR THE ASSISTANT SOLICITOR GENERAL

This memorandum is in response to your request for my views on the questions 

presented in the memorandum from the Department of State for the Attorney 

General, dated January 8, 1945.

I.

At the International Civil Aviation Conference held at Chicago, there were 

drawn up on December 7, 1944, the following multilateral agreements:

(1) a Convention on International Civil Aviation;

(2) an Interim Agreement on International Civil Aviation;

(3) an International Air Services Transit Agreement; and

(4) an International Air Transport Agreement.

Members of the Civil Aeronautics Board attended the conference as delegates 

of the United States. It is understood that they have approved the agreements.

The Convention is to be submitted to the Senate for ratification. The Interim 

Agreement provides for the establishment of a provisional organization for 

collaboration in the field of international civil aviation. It is to last only until the 

Convention comes into operation, or at most for a period of three years.

We are concerned only with the third and the fourth of these four agreements, 

the International Air Services Transit Agreement and the International Air 

Transport Agreement. These agreements deal with “scheduled international air 

services.”

The International Air Services Transit Agreement, commonly referred to as the 

Two Freedoms Agreement, provides in pertinent part:

ARTICLE I

Section 1

Each contracting State grants to the other contracting States the following freedoms of the air in respect of scheduled international air 

services:

(1) The privilege to fly across its territory without landing;

(2) The privilege to land for non-traffic purposes. . . .
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Section 4

Each contracting State may, subject to the provisions of this Agreement,

(1) Designate the route to be followed within its territory by any international air service and the airports which any such service may 

use . . . .

Section 5

Each contracting State reserves the right to withhold or revoke a certificate or permit to an air transport enterprise of another State in any 

case where it is not satisfied that substantial ownership and effective 

control are vested in nationals of a contracting State, or in case of 

failure of such air transport enterprise to comply with the laws of the 

State over which it operates, or to perform its obligations under this 

Agreement.

The second agreement, document 4 above mentioned, is the International Air 

Transport Agreement, commonly referred to as the Five Freedoms Agreement. It 

contains the same provisions as those quoted above from the International Air 

Services Transit Agreement (article I, sections 1, 5 and 6) and, in addition, three 

other privileges, hence giving rise to the name Five Freedoms Agreement.

Each of these two agreements comes into force as between contracting States 

upon its acceptance by each of them. Each agreement may be denounced by any 

party thereto on one year’s notice.

The Two Freedoms Agreement and the Five Freedoms Agreement contain 

provisions making the exercise of privileges granted in the respective agreements 

to the contracting States subject to certain provisions of the Interim Agreement 

and, when it comes into force, subject to certain provisions of the Convention.

In view of the uncertainty as to the scope of the questions raised in the State 

Department memorandum, Mr. Barnard and I attended a meeting with representatives of the State Department on January 22, 1945. It is my understanding that 

with respect to the present inquiry this department is not concerned with any 

question arising out of the relation of the provisions of the Two Freedoms 

Agreement and of the Five Freedoms Agreement to the provisions of the Interim 

Agreement and the Convention; or with any question of national defense or 

security; or with the fact that the two agreements are multilateral international 

agreements, and not bilateral agreements; or with any question as to whether the 

Two Freedoms Agreement and the Five Freedoms Agreement may be executed by 

the President as executive agreements without the necessity of submitting the 

agreements, or either of them, to the Senate for its advice and consent as to 

ratification.
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115

The only question on which the Department of State desires the informal opinion of the Attorney General is the question whether the two privileges granted by 

the Two Freedoms Agreement and the Five Freedoms Agreement with respect to 

foreign scheduled air services, (1) to fly across the territory of the United States 

without landing, and (2) to land in the United States for non-traffic purposes, are 

authorized by, or conform with, existing law of the United States. This question 

will be considered on the basis that the agreements conferring these privileges are 

bilateral agreements.

II.

Both the Paris Convention of 1919 (Convention for the Regulation of Aerial 

Navigation, Oct. 13, 1919, 11 L.N.T.S. 173) and the Havana Convention of 1928 

(Pan American Convention on Commercial Aviation, U.S.-Cuba, Feb. 20, 1928, 

47 Stat. 1901) adopted the doctrine of complete and exclusive sovereignty over the 

air space above the territory of a state, but contained provisions extending certain 

reciprocal privileges to foreign aircraft within the territories of member states.

This principle of exclusive sovereignty over the air space, but with authorization for innocent passage of civil foreign aircraft under certain conditions, is 

written into the statutes of the United States to which reference will shortly be 

made.

The Paris Convention was signed by the United States, but it was not ratified. 

S. Doc. No. 67-348, at 3768 (1923). Ratification of the Havana Convention was 

advised by the Senate on February 20, 1931. 74 Cong. Rec. 5514. The Convention 

was ratified by the President on March 6, 1931, and proclaimed by the President 

on July 27, 1931. 47 Stat. 1901.

Incidentally, it may be noted that Article XV of the Paris Convention provides 

that every aircraft of a contracting State has the right to cross the air space of 

another State without landing, subject to following a designated route. S. Doc. 

No. 67-348, at 3775.

The Paris Convention and the Havana Convention have been interpreted to 

deny freedom of air navigation to the operators of air lines, except by special 

agreement. As a result, international services have been established pursuant to 

international bilateral agreements and, in some cases, by unilateral concession. 

The United States is a party to a number of bilateral agreements under which each 

party grants certain privileges to the civil aircraft of the other party.

Air navigation in the United States is regulated by the provisions of the Civil 

Aeronautics Act of 1938, and the Air Commerce Act of 1926 as amended by the 

Civil Aeronautics Act of 1938. I shall discuss first the Air Commerce Act of 1926 

as originally enacted, and, secondly, the Civil Aeronautics Act of 1938.

Section 6 of the Air Commerce Act of 1926, as originally enacted, provides:
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(a) The Congress hereby declares that the Government of the United 

States has, to the exclusion of all foreign nations, complete sovereignty of the airspace over the lands and waters of the United States, 

including the Canal Zone. Aircraft a part of the armed forces of any 

foreign nation shall not be navigated in the United States, including 

the Canal Zone, except in accordance with an authorization granted 

by the Secretary of State.

(b) Foreign aircraft not a part of the armed forces of the foreign nation shall be navigated in the United States only if authorized as 

hereinafter in this section provided; and if so authorized, such aircraft and airmen serving in connection therewith, shall be subject to 

the requirements of section 3, unless exempt under subdivision (c) of 

this section.

(c) If a foreign nation grants a similar privilege in respect of aircraft 

of the United States, and/or airmen serving in connection therewith, 

the Secretary of Commerce may authorize aircraft registered under 

the law of the foreign nation and not a part of the armed forces 

thereof to be navigated in the United States, and may by regulation 

exempt such aircraft, and/or airmen serving in connection therewith, 

from the requirements of section 3, other than the air traffic rules; 

but no foreign aircraft shall engage in interstate or intrastate commerce.

Pub. L. No. 69-254, § 6, 44 Stat. 568, 572 (emphasis supplied).

The parts underscored in the above quotation were repealed or amended by the 

Civil Aeronautics Act of 1938, Pub. L. No. 75-706, 52 Stat. 973.

Section 9(b) of the Air Commerce Act of 1926 provides that the term “United 

States,” when used in a geographical sense, means the territory comprising the 

several States, Territories, possessions, and the District of Columbia, and the 

overlying air space. 44 Stat. at 573.

The term “air commerce” is defined in section 1 of the statute as “transportation in whole or in part by aircraft of persons or property for hire, navigation of 

aircraft in furtherance of a business, or navigation of aircraft from one place to 

another for operation in the conduct of a business.” 44 Stat. at 568.

The term “interstate or foreign air commerce” is defined in section 1 of the 

statute to mean “air commerce between any State, Territory, or possession, or the 

District of Columbia, and any place outside thereof; or between points within the 

same State, Territory, or possession, or the District of Columbia, but through the 

airspace of any place outside thereof; or wholly within the airspace over any 

Territory or possession or the District of Columbia.” 44 Stat. at 568.
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It will be seen that section 6 of the statute permits foreign civil aircraft, not a 

part of the armed forces of a foreign nation, to be “navigated in the United States” 

under certain conditions. The conditions are:

(1) Reciprocal rights must first be granted by the foreign nation with 

respect to aircraft of the United States.

The foreign aircraft or carrier—

(2) must receive authorization from the Secretary of Commerce to be 

“navigate[d] in the United States”;

(3) may be subject to regulation; and

(4) may not engage in interstate or intrastate air commerce.

44 Stat. at 572.

Subject to the foregoing conditions, foreign civil aircraft may be “navigated in 

the United States.” This term is not defined in the statute. Also, it is to be noted 

that the statute contains no express reference to non-stop flights or landing for 

non-traffic purposes. It seems clear that so long as a foreign aircraft does not 

engage in interstate or intrastate air commerce, both non-stop flights and landing 

for non-traffic purposes would fall within the terms “navigated in the United 

States” and “air commerce” as used in the Air Commerce Act of 1926.

The term “navigation in the United States” as used in the statute includes any 

navigation through the air space over the territory of the United States or any part 

thereof. Id. §§ 2(e), 5(e); 44 Stat. at 569, 571. This term would, therefore, include 

a non-stop flight across the territory of the United States and a stop or stops in the 

United States for non-traffic purposes.

The term “air commerce” is defined in the Act of 1926 to include “transportation in whole or in part by aircraft of persons or property for hire” and “navigation 

of aircraft in furtherance of a business.” Id. § 1; 44 Stat. at 568. Navigation of a 

foreign aircraft on a non-stop flight across the United States or a part thereof 

would seem to fall within both of these definitions.

Likewise, the landing of a foreign aircraft in the United States for non-traffic 

purposes—refueling, for example—when done in connection with transportation 

by the aircraft of persons or property for hire, or in connection with navigation of 

the aircraft in furtherance of a business, seems clearly to fall within the meaning of 

the term “air commerce” as used in the statute.

I find no apparent intent either in the language of the original Air Commerce 

Act of 1926 or its history to limit foreign aircraft to engaging in “foreign air 

commerce” within any restricted definition of this term that would exclude nonstop flights. On the contrary, the foregoing analysis of the provisions of the statute 

shows that non-stop flights of foreign civil aircraft and landing of civil aircraft for 
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118

non-traffic purposes are within the terms of the authorization contained in the 

statute as originally enacted.

There seems, however, to have been some doubt as to the construction of the 

Air Commerce Act of 1926. Thus, in March 1938, Mr. Hester, Assistant General 

Counsel, Treasury Department, later Administrator of Civil Aeronautics, gave the 

following testimony before a subcommittee of the House Committee on Interstate 

and Foreign Commerce:

While the authority of the Secretary of Commerce under that act [the 

Air Commerce Act of 1926] to permit the operation of foreign private aircraft in this country is clear, his authority to permit the operation of a foreign air carrier to this country is in doubt. Consequently, 

a provision has been inserted in the present bill providing that no 

foreign air carrier shall operate to the United States unless it secures 

from the Authority a permit to do so. The issuance of such permits 

would be subject to the approval of the President.

Hearings on H.R. 9738 Before the H. Comm. on Interstate and Foreign Commerce, 75th Cong., 3d Sess. at 41 (1938).

The Civil Aeronautics Act of 1938 created a Civil Aeronautics Authority and 

conferred certain powers and duties upon an Administrator. Pub. L. No. 75-706, 

§ 201, 52 Stat. at 980-81. The title, Civil Aeronautics Authority, was changed to 

Civil Aeronautics Board by the provisions of the President’s Reorganization Plan 

4 of 1940, § 7, 5 Fed. Reg. 2421, 2421–22, and certain changes have been made in 

the respective duties of the Board and the Administrator. See Permits for Flight of 

Foreign Aircraft into the United States, 40 Op. Att’y Gen. 136 (1941). For present 

purposes it is unnecessary to distinguish whether duties are vested in the Board or 

in the Administrator.

Following are pertinent provisions of the Civil Aeronautics Act of 1938:

Section 2 of the statute states that in the exercise and performance of its duties 

the Authority shall consider the following as being in the public interest—

(a) The encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign 

and domestic commerce of the United States, of the Postal Service, 

and of the national defense; . . .

(d) Competition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs 

of the foreign and domestic commerce of the United States, of the 

Postal Service, and of the national defense; . . .

(f) The encouragement and development of civil aeronautics.
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52 Stat. at 980.

Section 201(b) of the statute provides that there shall be in the Authority an 

Administrator, 52 Stat. at 981, and section 301 empowers and directs the Administrator “to encourage and foster the development of civil aeronautics and air 

commerce in the United States, and abroad,” 52 Stat. at 985.

Section 402 provides in part—

(a) No foreign air carrier shall engage in foreign air transportation 

unless there is in force a permit issued by the Authority authorizing 

such carrier so to engage; . . .

(b) The Authority is empowered to issue such a permit if it finds that 

such carrier is fit, willing, and able properly to perform such air 

transportation and to conform to the provisions of this Act and the 

rules, regulations, and requirements of the Authority hereunder, and 

that such transportation will be in the public interest.

52 Stat. at 991.

The Authority is authorized by paragraph (f) of section 402 to prescribe the 

duration of any permit and to attach to it such reasonable terms as, in its judgment, 

“the public interest may require.” 52 Stat. at 992.

Paragraph (g) provides that any permit issued under section 402 may, after 

notice and hearing, be altered, modified, amended, suspended, canceled, or 

revoked by the Authority whenever it finds such action to be in the public interest. 

52 Stat. at 992.

Section 801 provides that the issuance, denial, transfer, amendment, cancellation, suspension, or revocation of the terms of any foreign air carrier permit 

issuable under section 402 shall be subject to the approval of the President. 52 

Stat. at 1014.

Section 802 provides that the Secretary of State “shall advise the Authority of, 

and consult with the Authority, concerning the negotiation of any agreements with 

foreign governments for the establishment or development of air navigation, 

including air routes and services.” 52 Stat. at 1014.

Section 1102 provides that in exercising and performing its powers under the 

Act, “the Authority shall do so consistently with any obligation assumed by the 

United States in any treaty, convention, or agreement that may be in force between 

the United States and any foreign countries.” 52 Stat. at 1026.

The statute gives recognition to “agreements” entered into by the United States 

with foreign governments “for the establishment or development of air navigation, 

including air routes and services.”

It will be noted that under the Civil Aeronautics Act of 1938 a foreign air carrier is required to obtain from the Civil Aeronautics Board a permit to engage in 

foreign air transportation. The issuance of any permit is subject to the approval of 
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the President. It is understood that if the Two Freedoms Agreement and the Five 

Freedoms Agreement are entered into by the United States, foreign air carriers 

who wish to make non-stop flights or who want permission to land in the United

States for non-traffic purposes will be required to obtain permits from the Civil 

Aeronautics Board in the same manner as other foreign air carriers who make 

stops in the United States for traffic purposes.

The Civil Aeronautics Act of 1938 (section 1107(i)(1) and (5)) amended section 6(c) of the Air Commerce Act of 1926 to read in part as follows:

If a foreign nation grants a similar privilege in respect of aircraft of 

the United States, and/or airmen serving in connection therewith, the 

Civil Aeronautics Authority may authorize aircraft registered under 

the law of the foreign nation and not a part of the armed forces 

thereof to be navigated in the United States. No foreign aircraft shall 

engage in air commerce otherwise than between any State, Territory, 

or possession of the United States (including the Philippine Islands) 

or the District of Columbia, and a foreign country.

52 Stat. at 1028 (underscored portions added by the 1938 amendment).

The Civil Aeronautics Act of 1938 substituted for the provision in section 6(c) 

of the Air Commerce Act of 1926 that “no foreign aircraft shall engage in 

interstate or intrastate air commerce” the requirement that “no foreign aircraft 

shall engage in air commerce otherwise than between any State, Territory, or 

possession of the United States (including the Philippine Islands) or the District of 

Columbia, and a foreign country.”

There is a question whether the Congress intended by this change in the provisions of the Air Commerce Act of 1926, and by the other provisions of the 1938 

statute that I have mentioned, to prohibit foreign aircraft from making non-stop 

flights across the United States in connection with scheduled international air 

services. I find no such intention either in the language of the statute or in its 

history. Reading the provisions of section 6(c) of the Air Commerce Act of 1926, 

together with the provisions of the Civil Aeronautics Act of 1938, it seems to me 

that all that was intended was to prohibit foreign aircraft or foreign air carriers 

from engaging in interstate air commerce or intrastate air commerce.

Section 1 of the Civil Aeronautics Act of 1938 contains the following definitions:

(3) “Air Commerce” means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or 

navigation of aircraft within the limits of any civil airway or any operation or navigation of aircraft which directly affects, or which may 

endanger safety in, interstate, overseas, or foreign air commerce.
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. . . .

(20) “Interstate air commerce,” “overseas air commerce”, and “foreign air commerce,” respectively, mean the carriage by aircraft of 

persons or property for compensation or hire, or the carriage of mail 

by aircraft, or the operation or navigation of aircraft in the conduct or 

furtherance of a business or vocation, in commerce between, respectively—

(a) a place in any State of the United States, or the District of Columbia, and a place in any other State of the United States, or the 

District of Columbia; or between places in the same State of the 

United States through the air space over any place outside thereof; or between places in the same Territory or possession (except 

the Philippine Islands) of the United States, or the District of Columbia;

(b) a place in any State of the United States, or the District of Columbia, and any place in a Territory or possession of the United 

States; or between a place in a Territory or possession of the 

United States, and a place in any other Territory or possession of 

the United States; and

(c) a place in the United States and any place outside thereof, 

whether such commerce moves wholly by aircraft or partly by 

aircraft and partly by other forms of transportation.

Under section 6 of the Air Commerce Act of 1926, as amended, foreign aircraft 

may be authorized “to be navigated in the United States.” It has been shown that 

this term includes non-stop flights. Section 6 further provides that no foreign 

aircraft shall engage in “air commerce” otherwise than between any State, 

Territory or possession of the United States and a foreign country. The term “air 

commerce” as used in section 6 before it was amended by the Civil Aeronautics 

Act of 1938 also includes non-stop flights.

The term “air commerce” in the last sentence of section 6(c) of the 1926 Act, 

after the subsection was amended by the 1938 Act, is somewhat ambiguous for the 

reason that the definition of “air commerce” in the Act of 1938 differs from the 

definition of “air commerce” in the Act of 1926. The term “air commerce” as used 

in the 1938 Act includes any operation or navigation of aircraft which directly 

affects, or which may endanger safety in, interstate, overseas, or foreign air 

commerce. This definition, therefore, as well as the definition of “air commerce” 

in the 1926 Act, seems to include non-stop flights.

The Civil Aeronautics Act of 1938 is derived from S. 3845, 75th Cong., 3d 

Sess., and H.R. 9738, 75th Cong., 3d Sess.
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S. 3845, as reported to the Senate and agreed to by the Senate, provided in 

section 1103:

(b) . . . If a foreign country grants a similar privilege in respect of 

aircraft of the United States the Authority may authorize such foreign aircraft registered under the laws of such country to enter and 

be navigated within the United States. . . .

(d) No foreign aircraft shall engage in interstate or overseas air 

commerce, or in the transportation of persons or property for compensation or hire, or be operated or navigated in the conduct or furtherance of a business or vocation, in commerce wholly within a 

State.

83 Cong. Rec. 6765 (1938).

H.R. 9738, as reported to the House and agreed to by the House, contained the 

amendment to section 6(c) of the Air Commerce Act of 1926, which was finally 

adopted in the 1938 Act, providing that no foreign aircraft shall engage in air 

commerce otherwise than between any state and a foreign country. 83 Cong. Rec. 

7100, 7104 (1938).

The Senate bill repealed all of the provisions of the Air Commerce Act of 1926, 

and rewrote in the text of the bill such of the provisions that the Senate thought 

necessary to preserve. The House bill, on the other hand, repealed most of the 

1926 Act, but preserved in existence and amended in certain respects other provisions of the 1926 Act. The conferees adopted the House amendment, dealing with 

“admission of foreign aircraft into the United States,” without, however, indicating 

that in their opinion there was any material difference between the Senate 

provision and the House provision. Where there was any substantial or material 

difference between a Senate provision and a House provision, the conference 

report called attention to the difference. See H.R. Rep. No. 75-2635, at 80–81 

(1938).

It thus appears that the provisions of the House bill and the Senate bill were 

each designed to prohibit foreign aircraft from engaging in interstate air commerce 

or overseas air commerce or air commerce wholly within a State. The amendment 

to the 1926 Act made by the 1938 Act authorizing foreign aircraft to engage in air 

commerce between the United States and foreign countries discloses no purpose to 

prohibit foreign air carriers from engaging in air commerce to the extent of 

making non-stop flights across territory of the United States or of landing in the 

United States for non-traffic purposes.

The Civil Aeronautics Act of 1938 is intended to promote the development of 

civil aeronautics and air commerce in the United States and abroad. The statute 

should be construed consistently with this purpose and its provisions. In permitting 

foreign aircraft to engage in air commerce between the United States and a foreign 
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country the Congress has disclosed no purpose to prohibit foreign aircraft from 

making commercial non-stop flights over the territory of the United States. Fairly 

construed, such non-stop flights of foreign aircraft fall within the provisions of the 

Air Commerce Act of 1926, as amended, and the provisions of the Civil Aeronautics Act of 1938.

A construction that would prohibit foreign aircraft from engaging in commercial non-stop flights undoubtedly would preclude the Government of the United 

States from obtaining similar privileges from foreign governments for American 

air carriers. Such a construction would hamper and restrict the development of 

civil aeronautics and air commerce in the United States. It would be contrary to 

the provisions and purpose of the Air Commerce Act of 1926, as amended, and the 

Civil Aeronautics Act of 1938.

III.

The administrative practice supports the construction that I have suggested. 

Under the 1926 Act a number of bilateral agreements were entered into by the 

United States with foreign governments granting liberty of passage over our 

territory in time of peace, and providing for the establishment and operation of 

regular air routes by air transport companies “across the said territory, with or 

without intermediary landing, . . . subject to prior consent of the other party given 

on the principle of reciprocity.” Air Navigation Agreement, U.S.-Swe., art. 4, 

Oct. 9, 1933, E.A.S. No. 47, at 1-2; Air Navigation Agreement, U.S.-Nor., art. 4, 

Nov. 15, 1933, E.A.S. No. 50, at 1; Air Navigation Agreement, U.S.-S. Afr., art. 4, 

Sept. 20, 1933, E.A.S. No. 54, at 1-2; Air Navigation Agreement, U.S.-Den., art. 4, 

Apr. 16, 1934, E.A.S. No. 58, at 2. See also Air Navigation Agreement, U.S.-It., 

Oct. 31, 1931, E.A.S. No. 24; Air Navigation Agreement, U.S.-Gr. Brit., May 5, 

1935, E.A.S. No. 76; Air Navigation Agreement, U.S.-Ir., Dec. 4, 1937, E.A.S. 

No. 110.

Since 1938 additional agreements have been entered into.

An agreement between the United States and Canada grants, subject to compliance with local laws and regulations, liberty of passage in time of peace above the 

territories of each of the parties. It is further agreed “that the establishment and 

operation by an enterprise of one of the Parties of a regular air route or services to, 

over, or away from the territory of the other Party, with or without a stop, shall be 

subject to the consent of such other Party.” Air Navigation Agreement, U.S.-Can., 

art. 3, Aug. 1, 1938, E.A.S. No. 129, at 1.

In a further exchange of notes, the Government of the United States and the 

Government of Canada agreed, subject to compliance with their laws and regulations,

to grant to air carrier enterprises of the other Party permits for nonstop services through the air space over its territory between two 
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124

points within the territory of the other Party; provided however that 

inland non-stop services between the United States and Alaska shall 

be the subject of a separate understanding.

Air Transport Services Agreement, U.S.-Can., art. 3, Aug. 18, 1939, E.A.S. 

No. 159, at 1.

On July 15, 1939, the United States entered into an agreement with France by 

which each contracting party granted, subject to its laws and regulations, in time 

of peace, “liberty of passage above its territory” to the registered civil aircraft of 

the other party, and agreed that the establishment and operation of a regular air 

route or air transport service to, over or away from the territory of the other, with 

or without stop, should be subject to the consent of the other party. Air Navigation 

Agreement, U.S.-Fr., art. 4, Aug. 15, 1939, E.A.S. No. 152, at 2.

On June 14, 1939, the United States and Liberia entered into an agreement, 

effective June 15, 1939, providing that, subject to compliance with local laws and

regulations, civil aircraft, not engaged in regular scheduled services, “shall be 

accorded liberty of passage above and of landing upon the territory of the other 

Party.” Air Navigation Agreement, U.S.-Liber., art. 1(b), June 15, 1939, E.A.S. 

No. 166, at 3.

IV.

Accordingly, confining the advice in the manner that I have mentioned in this 

memorandum, I believe that the Department of State can be advised informally 

that the statutes permit the Government of the United States to enter into an 

agreement with the government of a foreign country granting on the principle of 

reciprocity, in respect of scheduled international air services, the privilege to fly 

across the territory of the United States without landing, and the privilege to land 

in the United States for non-traffic purposes, subject to compliance with the laws 

and regulations of the United States.

W.H. EBERLY

Attorney-Adviser

Office of the Assistant Solicitor General