Questions from the Cockpit: A matter of law

In July’s column we took a look at why captains sit in the left-hand seat, which ended up generating a lot of reader speculation that it might have had something to do with right-of-way rules, which in turn generated a lot of requests that we look at the origins of today’s right of way rules. 

Right on!

Here in FAA land, 14 CFR § 91.113 lays out the law of the air above the land, saying that if two planes are approaching more or less head on, each “shall alter course to the right.” Similar language is found in ICAO Annex 2, “rules of the air.” 

Them be Da’ Rules. But where did they come from? What logic is there to them?

You don’t need to look far on the internet to discover that boats follow the same rules. Did we, like with position lights, simply borrow from our nautical forefathers?

Actually, no. Most emphatically not. At least not as far as the federal aviation rules in the United States are concerned.

Do a quick mag check on your time machine and set your temporal GPS for the year 1926: A time when the U.S. economy was booming, Calvin Coolidge was in the White House, Al Capone ran Chicago, Ford established the 40-hour work week, and Prohibition was the unobeyed law of the land. The barnstorming era was coming to an end and the fledgling airlines were beginning to fly Uncle Sam’s mail.

In May, Congress passed the Air Commerce Act, establishing federal control over civil aviation in the United States, and laying the cornerstone of what would later become the Federal Aviation Administration. 

The act created an aeronautics branch of the Department of Commerce, with the power to certify aircraft, establish airways, make and enforce safety rules, and license pilots. (We’d had non-governmental pilot’s licenses in the United States since 1911, issued by the Aero Club of America, but they were not legally required for flight.)

The act also specifically spelled out that the new branch create “rules for the prevention of collisions.” Interestingly, however, it goes on to clearly state “the navigation and shipping laws of the United States…shall not be construed to apply to seaplanes or other aircraft… including the rules for the prevention of collisions.”

Herbert Hoover, secretary of the Department of Commerce at the time, turned the development of the new branch over to lawyer-pilot William MacCracken, Jr., and MacCracken got crackin’.

By the last day of the year, the department issued the first Air Commence Regulations. What did they say about right of way?

“When two engine-driven aircraft are approaching head-on, or approximately so, and there is risk of collision, each shall alter its course to the right, so that each may pass on the left side of the other.” 

A familiar sounding sea tale.

So even though Congress specifically spelled out that MacCracken did not have to use the laws of the sea, he chose to anyway.

It’s worth noting that the reason ships divert to the right has more to do with how ships navigate waterways — which is on the right side of a channel or river — than for any other reason. As there are no terrain or current issues on an airway, there was no need to treat airplanes like flying boats.

In fact, the curious language of the Air Commerce Act suggests that at least some people thought that adopting nautical collision avoidance was a bad idea. So why did MacCracken do it? 

Although there were no federal regulations prior to the ones he wrote, were there already established best practices of the air that pilots were using? Perhaps so.

The Aero Club of America published a set of Rules of the Air in the Aero Blue Book in 1919, saying, “Now that hundreds of planes are used daily, and the age of aerial transportation is dawning, it is necessary to formulate aerial laws to govern aerial transportation.”

But like the Pirate’s Code in the Disney Caribbean movies, they be more what you’d call “guidelines” than actual rules as the Aero Club had no regulatory authority.

Still, Rule No. 1 of the Rules of the Air for Flying Over Land is “Machines meeting must pass each other left wing to left wing,” and interestingly, the club notes that its separate seaplane rules are “based upon existing nautical practices.” 

Of course, there’s also the Treaty of Versailles, which ended World War I, to consider. The peace treaty included a number of “air clauses.” Most of these dealt with limiting German aerial activities and establishing rules for aircraft flying over national borders, but it also included a Rules of the Air section that stated, “when two motor-driven aircraft are meeting end on, or nearly end on, each shall alter its course to the right.”

That said, this did not affect U.S. law. Congress never ratified the treaty. Still, this shows us that there was some degree of consensus on the world stage at the time when it came to avoiding head-on collisions of aircraft.

Lastly, there was one other precedent that might have influenced MacCracken. A uniquely American precedent. Way back in 1913, only a decade after the Wrights’ first flight, the Commonwealth of Massachusetts attempted to regulate airplanes, airspace, and pilots. Its Act to Regulate the Use of Aircraft included a series of right-of-way rules for “aviators while flying over any part of the commonwealth,” that included “Meeting head on: When two aeroplanes are in danger of meeting head on, each aviator shall change his course to the right.”

But wait. There’s more. The act, rarely for a legal document, includes an editorial note telling us the rational for the rule. It says, “this method of passing being in accordance with the rules of the road on land, and with the Unites States steamboat regulations at sea.” 

So there you have it. Our right of way rules share ancient DNA of not only the sea, but of the road as well.

MacCracken, no crackpot, rightly saw no reason to create something completely different for the air. Of course, in later times the rules of the road changed, and we now pass on the left, leaving modern pilots confused about why things are different in the air and on the seas than they are on the land.