Wednesday, May 11, 2011
Cabotage has become a topic of discussion again among aviation law aficionados, particularly with regard to whether or not the doctrine applies to non-remunerative carriage. As a number of commentators have noted, the application of the doctrine varies considerably from country to country. For instance, under 49 U.S.C. § 40109(g), the Department of Transportation "may exempt by order a foreign air carrier . . . for not more than 30 days to allow the foreign air carrier to carry passengers or cargo in interstate [i.e., domestic] air transportation in certain markets" if the Department determines that such authorization is in the public interest due to an "emergency created by unusual circumstances not arising in the normal course of business[.]" This seems to imply that any domestic carriage of passengers or cargo, regardless of remuneration, is barred under U.S. law unless granted special dispensation by the DOT. However, the Department's webpage, "Airline Cabotage," adds the qualification that these limited cabotage rights apply to "commercial traffic." It is not clear whether the "commercial traffic" language constitutes a gloss on the provision, an iteration of DOT practice in these matters, or a simple confusion concerning the actual language of the statute. Interestingly, the word "cabotage" itself has never appeared in U.S. law. See generally Nicky E. Hesse, Some Questions on Aviation Cabotage, 1 McGill L.J. 129, 133 (1953); see also 49 U.S.C. passim.
Arguably, the DOT's interpretation that "cabotage" means "commercial traffic" is the most sensible approach in light of the doctrine's "canonical" definition under the Chicago Convention: "Each contracting State shall have the right to refuse permission to the aircraft of other contracting States to take on its territory passengers, mail and cargo carried for remuneration or hire and destined for another point within its territory." See Convention on International Civil Aviation art 7., opened for signature Dec. 7, 1944, 61 Stat. 1180. Besides, an overly strict reading of the cabotage prohibition in U.S. law would imply that British Airways, for example, would be barred from enplaning its own employees for courtesy carriage during a stopover in New York on a London/Los Angeles flight.
For further discussion of the history of cabotage, see Pablo Mendes de Leon, Cabotage in Air Transport Regulation (1981).