OBITUARY – HAROLD CAPLAN
HAROLD CAPLAN CEng, FRAeS, FCIArb
(1927 – 2016)
Qualified as a Chartered Engineer and a member of the English Bar, Harold Caplan was instrumental in the formation and development of aviation law, both domestically and internationally.
Harold joined the Royal Aeronautical Society in 1947 while 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. After leaving Cranfield Harold was the youngest in a small group of aeronautical engineers who formed the Air Safety & Survey Division of The British Aviation Insurance Co Ltd, then under the leadership of the charismatic Captain A G Lamplugh CBE. Lamplugh himself 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 experience exponential growth. 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. Harold described his embarkation on the study of law as follows:
“One day he [Lamplugh] 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 few days before I was called by the Middle Temple.”
Harold continued as an extra-mural student, studying international air law under Bin Cheng. At the City of London College he was also fortunate to receive practical encouragement from the scholar Clive Schmitthoff. Under his influence, by the end of the 1950s, Harold had started writing about and teaching the law of air transport. Clive introduced him to Lord Denning with whom he was able to exchange views when the 1955 Hague Protocol came before Parliament.
Harold 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. In that role he met and dealt with many leaders of the legal profession on both sides of the Atlantic. As Harold himself related in a 2011 interview: “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.”
Meanwhile, along with many of his Cranfield contemporaries who were moving into important positions in civil and military aviation, Harold was becoming increasingly frustrated when dealing with officialdom, in particular the lack of scientists and engineers involved in decision-making in aviation at the national level. He became convinced that this lack of technical insight jeopardised the future of UK aeronautics.
He formulated the idea of establishing an Air Law Group under the auspices of the Royal Aeronautical Society. The proposed terms of reference were that the Group should have “the general duty of applying Aeronautical and Other Sciences to the evolution of Law.” The Society approved the plan and Harold duly became a member of the first committee under the illustrious chairmanship of the late Sir Richard Wilberforce (as he then was).
Around this time, Harold was introduced to Lee S Kreindler, a legendary US plaintiff’s attorney in aviation circles. Kreindler had been one of the first to urge US denunciation of the Warsaw Convention (because of its arbitrary – and hence unfair – limits on compensation for death or injury in air accidents), and this finally occurred in 1965. The denunciation was withdrawn when sufficient airlines agreed to higher limits of liability for passengers.
Kriendler and Harold remained close friends although they had many differences of opinion, notably on Kriendler’s conviction that plaintiffs’ litigation was a positive force promoting air safety. After Kriendler’s death in February 2003, the prestigious International Academy of Trial Lawyers and the Kreindler family established an award programme in his memory. The first recipient of the award was the French judge His Excellency Judge Gilbert Guillaume – a Past President of the International Court of Justice in The Hague. The second recipient of the Medal was the then Senator Joseph R Biden Jr. Harold was the recipient in 2008. He also received the first European Air Law Association Lifetime achievement award in recognition of ‘work and outstanding contributions in the field of European and international air law’ in 2009 and in 2010 the Cecile Hatfield award for excellence in aviation law at the 22nd annual symposium on aviation law and insurance in Florida under the auspices of Embry-Riddle Aeronautical University.
In later life Harold focused on the role which he felt the law could – and should – play in civil aviation safety. Harold explained his basic premise, which was developed in his paper delivered for the Kriendler Memorial Lecture:
“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 2000.”
Consistent with his views which had led to the formation of the Air Law Group, Harold continued to be frustrated by what he saw as the uneducated approach of officialdom to aviation matters, notably safety and environmental issues, where he strongly believed that the science was all too frequently sacrificed on the altar of political expediency and that true international consensus was all too often being ignored in favour of ‘local’ political quick-fixes. As such he was a constant thorn in the side of bureaucrats and policy-makers, taking a particular delight in asking awkward questions of the European Commission and other regulators.
Harold was also a vociferous critic of the ‘one size fits all’ approach to passenger rights adopted by the European Union and the US, arguing that it severely limited freedom of choice for passengers and stifled competition.
In 2014 Harold was the first recipient of the Royal Aeronautical Society’s Specialist Group Award for Air Law. Sir Charles Haddon-Cave (chairman of the Nimrod Review into the circumstances leading to the loss of the Nimrod XV230 in Afghanistan in September 2006 and now a High Court Judge) endorsed Harold’s nomination as follows:
“Harold Caplan is the doyen of the Aviation Bar and a legend in domestic and international aviation law circles…His knowledge of aviation law and the history of the subject is peerless. He has been a great supporter of young aspirant aviation lawyers. He is an indomitable figure who has a great love for the RAeS. It would be wonderful if the RAeS could properly honour him.”
Harold is survived by his devoted wife of 48 years, Isabel.
To honour the sad passing of Harold Caplan, there will be a memorial lecture on 24th June 2016.
12 May 2016