Candid confessions of an odd Fellow*

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1 On the anniversary of the 50 th anniversary of the Air Law Group, Tim Marland talked to the person who inspired its foundation and was a member of its first committee, Harold Caplan. Candid confessions of an odd Fellow* The Air Law Group; and honours for its originator There cannot be too many Chartered Engineers who are also members of the English Bar. Harold Caplan is one of them. On one of his rare visits to Quadrant Chambers, I began by asking how he came to suggest an Air Law Group, and why he had been honoured as a lawyer by groups of lawyers on either side of the Atlantic - even though he has never practised as a lawyer. I hoped for some insight into a career sprinkled with paradox. His revelations may serve as a cautionary tale (or maybe an encouragement) to other members of the Society - in particular, those of the Air Law Group, who now number about 500. Harold joined the Royal Aeronautical Society in 1947 whilst a student of aircraft propulsion at the newly-opened post-graduate College of Aeronautics, Cranfield. Later, he served on the Council of the Society as a Graduate representative. What led him to the idea of an Air Law Group in 1961? His confessions are disarming: As I had been schooled in aeronautical science I cannot claim any instincts for the law. In fact it was not my choice. The choice was made for me by a charismatic leader - Capt A G Lamplugh, Underwriter of The British Aviation Insurance Co Ltd - known all over the world as Lamps. He was a pioneer of truly international aviation insurance (as distinct from domestic insurance) in the years between the two World Wars when commercial aviation began to explode. With his contemporaries at Lloyd s they established London as the centre for international aviation insurance - something which continues to the present day even though there are no wholly British insurers involved. After leaving Cranfield I was the youngest in a small group of aeronautical engineers who formed the Air Safety & Survey Division of Lamps company. One day he came into our office and said one of you should know about the law. He pointed at me. I was 23 and took it as an order. It sounded interesting and did not seem too difficult when I discovered that I did not need a law degree and, best of all, Part I Bar exams could be taken one at a time. In the early 1950s, I had plenty of time for study whilst travelling around the world in piston-engined aircraft. Long journey times and no in-flight entertainment. I traded two years annual leave for the right to attend a cram course for Bar finals. Alas, Lamps died of a hectic lifestyle, at the tragically early age of 57, just a fews days before I was called by the Middle Temple (Michaelmas 1955) - but he knew I had done what he asked. Next, I was incredibly lucky to be one of the earliest extra-mural students to be taught the rudiments of international air law by the ever-youthful, inspirational Bin Cheng (now an Emeritus Professor). I hate to think what might have happened if I had missed this crucial introduction. He gave me the essential foundation for all my *As told to Tim Marland MRAeS, Barrister, of Quadrant Chambers, 10 Fleet Street, London. (Footnotes provided later by Harold Caplan)

2 future studies. At the City of London College I was also fortunate to receive very practical encouragement from a charismatic scholar Clive Schmitthoff. Under his influence, by the end of the 1950s, I had started writing about and teaching the law of air transport. Clive introduced me to Lord Denning with whom I was able to exchange views when the 1955 Hague Protocol came before Parliament. The laws regulating the business of insurance in UK, USA and later, the European Community, I had to learn for myself. So I became the first in-house lawyer in the London aviation insurance market and began to specialise in the legal liabilities of the aviation industry - principally manufacturers and operators of aircraft and engines with a focus on the United States. The most enjoyable part of my job was finding and meeting the best available lawyers to defend our insured clients in each jurisdiction. That is how I met so many leaders of the legal profession on both sides of the Atlantic - but I never dealt directly with claimants lawyers - that was entrusted exclusively to the defence lawyers we appointed for our insured clients. Thus, although I never lost complete contact with my roots I began to savour the arcane atmosphere of the legal profession in many jurisdictions. My perception of these diverse cultural differences led to a growing belief that the spheres of Law and Science should somehow be brought closer together. The laws of nature are universal, whereas man-made laws display endless variations in nearly 200 separate jurisdictions. I therefore welcomed an invitation to present a Main Lecture to the Society to share some of my hopes, fears, findings and suggestions with others. But it did not lead me directly to suggest an Air Law Group. Instead I thought I might be able to help those of my friends and contemporaries from Cranfield who (unlike me) were truly fulfilling the aims of the creators of the College by moving into important positions in civil and military aviation. Many had told me of endless frustrations when dealing with officialdom - especially the cadre of classicists who seemed to dominate Whitehall. I was convinced that in the UK, aeronautics would not have the future it deserved unless more scientists and engineers were involved in national decision-making. Hence my first idea was that the Society should form a Law Reform Group or Committee to encourage the participation of scientists and engineers when the Society was called upon to perform its consultative function. That was the substance of my suggestion at the end of my lecture 1. It was soon pointed out that my suggestion was unnecessary because there was nothing to prevent the Society from calling upon any of its members when appropriate for consultative purposes. But the magic word Law rang a bell in the right quarters and my original idea was promptly taken up and transformed by older and wiser heads (all sadly departed now) such as Lawrence Wingfield (who was then the Honorary Solicitor) and Arnold Kean, the witty Treasury lawyer involved in civil 1 The actual text of my suggestion was: That this Society should promote and establish (either within the Society or outside it) a Law Reform Committee or a Law Group with the general duty of applying Aeronautical and Other Sciences to the evolution of Law [65 JRAeS 466 July 1961]. I still think this is a good idea. Currently, the most glaring illustration of the absence or misuse of Science is seen in the EU insistence that civil aviation be included in the complex and expensive carbon emissions trading completely ignoring the fact that long before concern for the environment became fashionable, civil aviation (for about a century)has been and continues to be unique by benefiting from intense research and competition to yield maximum efficiency in the use of hydrocarbon fuel.

3 aviation. By the end of that year (1961) Council had approved the formation of an Air Law Group with terms of reference which I understand are unchanged to this day. The senior group who had brought this about were kind enough to continue to regard me as the instigator and I was honoured to be a member of the first committee under the illustrious chairmanship of the late Sir Richard Wilberforce (as he then was). Although the Air Law Group fulfils a special need in the United Kingdom, it cannot be assumed that there is a similar need in overseas Branches or Divisions. Nevertheless, in recent years, the Society s Montreal Branch has successfully adapted the idea. If he never dealt directly with claimants lawyers, I was curious to know how he came to receive a medal commemorating one of the best-known plaintiffs lawyers in the US. I m afraid this is a long story which starts with my good fortune in meeting George N Tompkins Jr around 50 years ago. George was amongst the first US defence lawyers I met as a result of an introduction (from one of Lamps contacts) to the senior partner of the firm in which George was then the newest Associate. Subsequently, he has probably defended more Warsaw cases than any other lawyer on earth. He introduced me to Lee S Kreindler because he regarded him as a man of principle who represented the best of the plaintiffs Bar. I was uneasy about this because, in London, in those days, US plaintiffs lawyers were generally regarded by insurers as an unavoidable, forum-shopping, greedy bunch of bandits driven by a distasteful contingent-fee system which relentlessly generated outrageous jury awards of damages. I was therefore pleasantly surprised to discover that Lee was a gentle man, with a warm personality. He was consumed by compassion for his clients with a burning zeal for justice. I was sufficiently impressed to invite Lee to London to meet the then Underwriter of The British Aviation Insurance Co Ltd together with his Lloyd s counterpart. I was relieved to find that they got on well, but I was completely unprepared to find that the two leading underwriters of the aviation insurance market agreed with Lee that arbitrary limits on compensation were undesirable and should be unnecessary! Naturally he was one of the first to urge US denunciation of the Warsaw Convention, and this finally occurred in The denunciation was withdrawn when sufficient airlines agreed to higher limits of liability for passengers (CAB 18,900). At my suggestion, Lee was also invited to speak at two conferences on Warsaw Convention developments which were organised by the Air Law Group in London 2. In short, at long distance, we became good friends and were able to exchange views on the Warsaw Convention freely in private and at conferences. Professional propriety was maintained by never discussing his clients claims, and I never disclosed which organisations we were insuring. We had many stimulating differences of opinion. My biggest disagreement was with Lee s conviction that plaintiffs litigation was a positive force promoting air safety - but I had to admit that his expert investigators had more than once reached the truth ahead of official investigations. 2 (1967) 70 JRAeS (1971) 75 JRAeS ;

4 So far as I know, Lee was the only US lawyer who participated in a UK public inquiry into an aircraft accident - the last one ever held, arising out of the BEA Trident accident at Staines, At his own expense, Lee made an expert cardiologist available to the inquiry. As is well-known, Lee also played a key role, in conjunction with the US and UK Governments in obtaining from Libya US$ 10 million for each of the PanAm Lockerbie victims over and above the compensation they had already received from PanAm s insurers. We stayed in touch and I last saw him alive at a family celebration near New York just two days before 9/11. We were both born into the same ancient faith; I attended his funeral and was privileged to write an obituary. I am now closer to answering your question! Although Lee believed that his clients interests were best served by negotiating settlements, he never hesitated to go to trial when it became unavoidable. Thus he was a Fellow of the prestigious International Academy of Trial Lawyers (IATL). This is an invitation-only group of leading counsel (civil and criminal; both sides of the Bar) limited to a maximum of 500 US lawyers under 70 at any one time (plus existing Fellows who previously were under 70) and about 30 from other jurisdictions (including Rob Lawson QC of Quadrant Chambers). Both Lee and George N Tompkins Jr are Past Presidents of the Academy which does a great deal of good work unobtrusively, behind the scenes, in promoting the rule of law (for example in China). After Lee s death, the IATL and the Kreindler family established an award programme in his memory 3. The first to be so honoured was a truly eminent French judge - His Excellency Judge Gilbert Guillaume - a Past President of the International Court of Justice in The Hague 4. Clearly I am not in the same exalted category! Perhaps I became eligible because I wrote so many articles on the Convention which Lee opposed. Also, I was one of the few overseas lawyers who had known and admired Lee for such a large proportion of his professional life. But the simplest explanation may well be that the acting Chairman of the IATL selection committee at the time was the person who first introduced me to Lee about half a century earlier. I am bound to suspect that George was also influential when, two years later, I received the Cecile Hatfield award for excellence in aviation law at the 22 nd annual symposium on aviation law and insurance in Florida under the auspices of Embry- Riddle Aeronautical University. Happily I had attended a majority of these meetings, often as a speaker. As an in-house lawyer you were obviously not in private practice - but what happened when you left The British Aviation Insurance Co Ltd in 1969? 3 For the period following the Second World War, the Academy cites Lee Kreindler as the founder and foremost practitioner of aviation law (his first textbook on the subject appeared in 1963). Recipients of the Memorial Medal are said to represent his legacy in the noble pursuit of law and justice The second recipient of the Medal was the then Senator Joseph R Biden Jr (a lawyer and former Chairman of the Senate Committee on the Judiciary). 4 Also a former Chairman of the ICAO Legal Committee.

5 For me, this was a natural development. Apart from a short period which lasted about 24 hours 5, I have never dreamed of practising as a lawyer, mainly because this was not my primary discipline. Moreover I had discovered that the law in each jurisdiction was just one element in the resolution of aviation insurers problems. And I could see little point in entering private law practice in England when most of the aviation claims activity was overseas - mainly in the US. So I did not have to adopt a new professional framework when the opportunity arose to act as an independent loss adjuster for the insurance community. The focus remained in aviation claims and later, insured satellite losses. We were also able to respond, when required, to help in the resolution of disputes between insurers, or between insurers and reinsurers. But you acted at one stage as Legal Adviser to what was then known as the International Union of Aviation Insurers (IUAI) - was this compatible with your broad-based role as a loss adjuster? I thought so. This was only part-time, and proved most enjoyable for ten years until my first (planned) retirement in One of the founders of the IUAI in 1934 had been my great supporter Lamps, so with the help of his successors I had been able to keep in touch with its work and conferences. (At one stage I was in the running to become Secretary of the Union). I can assure you that there is no pain in preparing quarterly and annual reports (on legal developments) for conferences which take place in different superb locations each year. Nevertheless your role in the IUAI clearly identified you as an aviation lawyer - was this justified? I hope so. I have imbibed aviation since childhood when my parents moved to Filton, close to the factory and airfield of the Bristol Aeroplane Co Ltd. As a schoolboy in WWII I devoured everything published about every aircraft flying - especially during air raids. I was too young to be frightened. I can recall only the excitement of trying to identify the precise type of bombers caught in searchlights amid exploding shells. I made a fortunate discovery when I joined a pioneer troop of Air Scouts. We practised dismantling and assembling a venerable Bristol Bulldog fighter - an exercise which revealed I had negligible manual skills. I do not recall any lasting dismay at my physical clumsiness because (as I now realise) my genes also decreed that I should enjoy a whiff of euphoria emanating from a precocious infatuation with words and ideas. Inevitably I joined the Air Training Corps and left school to become a Drawing Office apprentice at the Engine division of Bristol s. I completed my apprenticeship by spending two years at the brand-new College of Aeronautics where, in addition to formal studies and research, we had flying lessons. Fortunately for mankind I did not progress beyond my first solo in a Tiger Moth biplane. When I came to the law it was as natural as breathing for me to focus on the developing laws of aviation, and later, space exploration. Some might call it an obsession. But whatever reputation I may have enjoyed in relation to aviation law, it was inevitably enhanced by the calibre of outstanding young lawyers (such as Neil McGilchrist, Tim Brymer, Andrew Bandurka and the late lamented Stephen Matthews) who worked with me over the years. All of them have since made a great 5 When I was invited to become a partner in a leading firm of solicitors.

6 name for themselves. To fit in with my non-practising status, each of them had to do the same when they joined me. Most important of all, each had something special in addition to having qualified as solicitors or barristers eg a passion for aviation; and/or practical flying experience. Your father, Ross Marland, was undoubtedly the most remarkable lawyer to join me from the Bar. An unassuming polymath, he was a pilot in the Royal Navy, a navigator in the RAF and, in collaboration with the USAF, what he didn t know about the true shape of the earth wasn t worth knowing. Although I did not foresee it, our non-practising status turned out to be a tremendous advantage as I became increasingly involved in the resolution of insurance and reinsurance disputes - many of which resulted in actual or threatened litigation or arbitration in London. For the benefit of clients I was then able to select and instruct major firms of solicitors in the City. The spin-off was that some of these firms asked us to investigate broking or underwriting operations in the UK and overseas. This was very challenging and exciting as it had many features in common with my early career investigating aircraft accidents. On one investigation into an aviation underwriting operation in Los Angeles, I was invited to collaborate with the FBI who believed that the operation was fraudulent. I must have convinced them that it was merely negligent because no prosecutions followed. The same case ultimately led to my helping a small team of London reinsurers in their negotiations with the legendary Warren Buffet in Omaha and Washington. I had another unusual experience when one of our client underwriters was accused (jointly with a broker) of conspiring to defraud a syndicate at Lloyd s. My superficial knowledge of criminal law was confined mainly to motoring offences - so my main task was to ensure that the best-available lawyers were engaged in his defence. It is the only time that I sat through every day of a month-long trial at the Old Bailey until, stage by stage, the Judge ordered each allegation to be withdrawn from the jury. It seems very unlikely that I would have had such varied experiences if I had been practising at the Bar, or in a firm of London solicitors. And is there a simple explanation for your choice of civil aviation safety as the topic for your Kreindler Memorial Lecture 6 - bearing in mind that was something on which you did not see eye-to-eye with Lee and you had not been directly involved in air safety issues for over 40 years? The short answer is yes and it was indirectly stimulated by the Air Law Group committee who chose His Excellency Judge Gilbert Guillaume to deliver the 8 th Beaumont Memorial Lecture 7 on 5 th February The learned Judge s penetrating analysis of present-day problems which might require attention in the structure of the Chicago Convention set my brain on fire. And when he particularly drew attention to regional variations in safety standards I recalled that aviation safety had been the main topic on which I had been unable to agree with Lee. I also remembered my own ideas from 1961 on what might be necessary in aeronautical regulations - in the same 6 The Crime of Flying - Air & Space Law Vol XXXIV/6. An updated version was published by McGill University: Annals of Air & Space Law (2009) - entitled Worldwide Safety of Civil Aviation. 7 ICAO at the beginning of the 21 st Century. Summarised in Aerospace Professional June Complete text in Air & Space Law Vol XXXIII/4-5.

7 lecture which led to the Air Law Group 8. From that point onwards there was no going back. Then for the benefit of those who may not have seen your paper, perhaps you could summarise what you have in mind? I can be brief because the idea is so simple. I hope it will be my swan-song. Although all 190 ICAO States subscribe nominally to the same safety standards, they are not compelled to adhere to them. My basic suggestion is that all ICAO States should adopt the same Uniform Law to enforce minimum ICAO safety standards on an enduring basis everywhere. This is hardly revolutionary but will be very difficult to achieve politically. Fortunately the idea is attracting unofficial support in several quarters It is too early to expect a State consensus to emerge one way or the other. If all my suggestions could be adopted there would be no need for criminal trials such as the one in France arising out of the tragic Concorde accident in July This was considered during the Air Law Group Conference on 27 th April From all you have said, I cannot be entirely surprised that you were honoured by the European Air Law Association (EALA), so I assume you have been actively involved with them. I wish I had been! The truth is that the first Annual Conference of this elite group I was able to attend was their 21 st - when I received my award 10 - but I have benefited from being at most (if not all) of their excellent liability seminars in Munich over the last 7 years. I was completely overwhelmed by this signal honour which took me by surprise. I am still adjusting to the emotional impact which has been unimaginably uplifting. To receive an award for lifetime achievement naturally implies that, for example, I do not need to write any more - which is a great relief at my age, with poor eyesight! After I was told of the impending award I tried to compile a list of articles I have written - a task which proved extremely difficult as I never acquired the habit of retaining copies. I was shocked to find that I had not contributed a single article to the EALA! When presenting the award, the EALA Treasurer - Dr Nikolai Ehlers of Munich - referred to your role behind the scenes, under the leadership of George Tompkins (in company with Emeritus Professor Bin Cheng and Lee Kreindler) in relation to the famous Japanese 8 The Law versus Science in Aeronautics 65 JRAeS 607 (1961). This merited the J E Hodgson Memorial Prize for the best paper of a general nature with emphasis on historical work. The original lecture on 12 January 1961 was the first Main Lecture to be given by a former Cranfield student. The date was the Society s 95 th anniversary. 9 The Proposed EC Regulation on Air Accident Investigation; the Criminalisation of Air Accidents & the Just Culture. 10 The EALA s first Lifetime Achievement Award in recognition of work and outstanding contributions in the field of European and international air law at the Peace Palace in The Hague, 6 th November The second recipient was my mentor Emeritus Professor Bin Cheng.

8 Initiative of 1992 which paved the way for similar IATA and ATA agreements which ultimately led to the 1999 Montreal Convention. This was extremely generous and I believe over-generous in relation to the Montreal Convention in which George played a leading role with IATA. I had no positive role in relation to that Convention which, originally, I mistakenly thought was strictly unnecessary. Later I realised it was the only way to introduce the Fifth Jurisdiction for passengers which became essential if the US was to avoid a second denunciation of the Warsaw system. In your list of over 100 published articles, Dr Ehlers cited three linked to the RAeS:- - your first published piece 11 in 1955 which merited the Pilcher Memorial Prize for the most valuable paper read by a Graduate or Student - your role in relation to the Air Law Group 12 - your latest ideas on air safety law which were commended by the Society s then Chief Executive to the President of ICAO s Council 13. Obviously Dr Ehlers could not mention all your contributions to the Society s publications. Can you indicate briefly what other topics you have dealt with for the Society? Not everything resulted in a published paper; for example: lectures on aviation risk management and insurance for the Society s annual Air Transport courses at Oxford 14. And I failed to publish anything following my Beaumont Memorial Lecture in 1997 on Human Factors in the Warsaw Convention. The topics which were published in the old Journal of the Society included:- -aircraft noise (when I forecast the need for national and international design rules) 15 -protecting safety information arising out of accidents and incidents 16 (which still seems to be topical) -reporting on a conference at Cranfield 17 -speculating on the next 50 years of aerospace law 18. In more recent years I have contributed to The Aerospace Professional : -proposals to amend UK Law on liability of aircraft owners for third party damage The Investigation of Aircraft Accidents & Incidents (based on a talk to Graduates and Students 1953). 12 Footnote Footnote This was based on occasional lectures for the Air Transport department at Cranfield - later repeated for the Air Transport courses of the Asian Institute of Management in Manila. 15 The control of aircraft noise perceived at ground level [1964] (Legal aspects). 16 Practical & legal problems of disseminating air safety information [1967]. 17 National Aerospace Planning [1967]. 18 Law of Aerospace Activities ' [1967]. 19 Minimising the financial impact of aerial terrorism in the UK [January 2006].

9 -in response to an Air Law Group discussion paper on ICAO s proposals to modernise the 1952 Rome Convention 20 -summarising an EU Directive which I believe precludes Member States participation in the ICAO Terrorists Convention 21. From all this it will be obvious that I owe a great deal to the Royal Aeronautical Society and the Air Law Group in particular. Being a member of the Group was a badge of specialisation and facilitated what, today, is known as networking. The previous Honorary Solicitor (Peter Martin) served for many years as Chairman of the Group. His silvery eloquence illuminated all our meetings. Early on, he cheerfully accused me of practising law without a licence. I took it as a compliment and was rewarded years later when he made me sole arbitrator in some airline leasing disputes. In more recent years I have benefited from the Parliamentary connections of the former Chief Executive who introduced me to members of the House of Lords who (in 2005) introduced amendments to Section 76 of the Civil Act which are still topical - awaiting government support. And, as you have already noted, last year he brought my suggestions (for a Uniform Law to govern aviation safety everywhere) to the attention of the ICAO Council. I know that you claim to have definitely retired for the second time in so, to conclude, would you be able to tell us very briefly how you became a door tenant of Quadrant Chambers? That has to be for another day. Bearing in mind that I have never even served a pupillage, it is a truly extraordinary privilege to be associated with Quadrant Chambers. The unplanned chain of events which led me to you, started way back in my days with The British Aviation Insurance Co Ltd when John Wilmers was the leading aviation silk... To my complete astonishment, last year, I found myself briefly in Chambers, giving a little advice for the benefit of my favourite clients at Lloyd s concerning the aftermath of 9/ September Addendum to the report of a conference concerning the ICAO proposals, jointly organised by the Air Law Group and the British Institute of International & Comparative Law [March 2009].

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