NOTE: Bill Clarke, a recognized expert in all aviation matters, recently died. Paul Mifsud wrote a touching obituary about his mentor’s contributions to the system of law that is in place today. The story traces an exemplary career and provides an excellent text for the years shaping International and US Aviation Deregulation. With Paul’s permission:
Paul V. Mifsud, Esq., July 22, 2018, MifnetWORLD
The news of Bill Clarke’s passing, has impacted me hard, as I know it has you. It has caused me to reflect upon what Bill did for me and the amazing adventure he set before me.
When Bill left Amtrak to set up a US in-house legal department in BOAC’s NY office, he hired me, a then-disenchanted SEC enforcement Attorney, to assist him. In the ensuing two years, he generously provided me with the most incredible crash course in international aviation law any lawyer could wish to experience. No one could have a better US international aviation law teacher than Bill Clarke. He was knowledgeable, insightful, creative, patient, and fun to be with. From law school on, Bill seemed to live and breathe aviation law.
On my first day on the job, he gave me a copy of a thick article he had written when he was in Columbia law school entitled, “The Legal Framework of International Air Navigation.” He told me to go to my office and study it, “to get an idea of what international aviation law was all about.” And, so began my education. As with much of his work, it was clear, concise, and highly informative. I have kept my now-yellowed copy all these years.
Few could have learned the ropes at a more pivotal juncture in the industry’s history. Bill and I arrived at BOAC at the very time the UK joined the EU, rolled out the Concorde, and ordered the merging of its two government carriers—BOAC/BEA—into the then new British Airways. Simultaneously, in the US, the very foundations of post WW II aviation regulation were in considerable turmoil.
The Senate was exploring deregulation. The CAB was rapidly blurring the legal boundaries between scheduled and nonscheduled air transport while at the same time eliminating ATA’s antitrust immunity with its travel agents. Meanwhile, the US attorney for the EDNY initiated a criminal investigation into the industry’s illegal rebating of government fixed fares. This all occurred while the industry was suffering from, among other things, the aftermath of the enormous 747 capacity expansion, the 1973 oil crisis, and the new competition from Freddy Laker and his fellow charter operators.
BOAC placed our legal office two floors below management, alongside the reservations department. Bill hung a poster-sized copy of the US Declaration of Independence at the entrance to our offices. He told me it was to remind the British they were dealing with US law when they came for advice. In those turbulent times, the British came often. When Concorde was being introduced, Sandy Gordan Cummings, who was the air attaché in DC, would fly to NY with a team of UK officials to consult with Bill after every meeting with Secretary Coleman.
My portfolio was strictly regulation—Bill handled all the air political matters. Yet, Bill regularly invited me to join these meetings. Beforehand, he would discuss the issues with me, placing an emphasis on the strategic questions. Afterwards, we would discuss the various positions taken and the risks that lay ahead.
This gave me a front row seat on the way Coleman nudged the British away from a traditional view of Chicago Convention international airworthiness rights and standards into the world of local noise issues. It also impressed upon me the degree of vision Bill employed during negotiations. Unfortunately, I also learned the British of that era were “good old chaps” who frequently explained things in the simple terms: “that’s not the way it’s done.” As Bill predicted, the issues weren’t “worked out,” they ended up, the American way—in court.
Our offices at 245 Park Ave overlooked the Chrysler and Pan Am buildings, and most mornings began with the two secretaries and me sipping coffee and tea in Bill’s office, enjoying the view and discussing the news and recent gossip—and, reflecting upon where we’d been and where we were going. Often, at such times, Bill would get nostalgic for his youth on the Maryland shore. He often proclaimed that Chincoteague oysters were the best in the world and lectured on the art of ordering and eating such gems of the sea. It was Bill who taught me to make sure oysters were served on cup side of the shell to ensure that they were freshly opened.
Bill’s door was always open. When the coffee cart came, Bill’s office was often a good place to take a break and chat. During sessions such as that, Bill’s reminiscences. unveiled to us bit-by-bit, the history of Pan Am and its legal department. Bill came to Pan Am’s legal department as Juan Trippe was on the verge of retirement. Bill’s learned his trade in a law department created by Henry Friendly, historically one of America’s most notable attorneys and judges.
When Bill arrived at the “Big Blue Meatball,” Howard “the Bear” Hamstra was Friendly’s successor and heir to Friendly’s traditions of legal excellence. At that time, Pan Am had one of the best legal departments in the industry. It was clear that while there, Bill soaked up like a sponge all the best principles and responsibilities that adhere to the legal profession.
But with Juan Trippe’s retirement, the quality legal department Friendly built was thoughtlessly disassembled in the name of corporate reorganization and “savings.” Pan Am’s best lawyers scattered throughout the industry. Bill went to Amtrak, Dick Fahey to American, and my aging mind slips on the name of the Pan Am lawyer who joined Welch Pogue at Jones Day. His anger about that decision lingered. Bill often made sarcastic comments about the enormous bills Pan Am thereafter paid to Jones Day and the in-house attorney they let go in the in the name of reducing “costs.”
I particularly remember when Bill received a phone call from Trippe’s successor, Najeeb Halaby, a few years after he had been replaced by Bill Seawell. Bill came out of his office and said, “That was Halaby, the S.O.B. never spoke to me, or gave me the time of day when he was destroying the Pan Am legal department. Now he calls and says, ‘Hi Bill, this is Jeeb,’ as though we had always been friends. Of course, he was just calling me to get some free tickets.”
Bill’s shared Pan Am experience became part of my aviation law foundation. Almost daily, Bill was on the phone with his many Pan Am contacts discussing all the issues and problems Pan Am was dealing with. Frequently, he would relate the latest insider news to me as object lessons and strategic weaknesses. Invariably, his insights and predictions proved to be right on point.
In those days, New York City was the center of International aviation in the US. The Pan Am building stood as a monument to our industry’s presence. Helicopters flew hourly from its rooftop to JFK. All the major international carriers had ticket offices on or near Fifth Avenue. In addition, American, TWA, Eastern, United, and certain major foreign carriers had legal departments within walking distance of each other.
The Wings Club was centrally located and was a great spot to lunch with industry colleagues and discuss all the rapidly changing events and directions afflicting the traditionally regulated and deeply indebted industry. If a really big deal loomed, an invitation by a senior Pan Am executive to the Sky Club on the 56th floor was almost sure to be offered.
Bill generously introduced me to the denizens of this special world. With his help, I developed many of the contacts and friends who have contributed so much to the industry’s struggle against the industry’s regulatory shackles.
The BA experience lasted but two years or so for both Bill and I. Bill’s impressive talents were scooped up by the partners at Barrett, Smith, Shapiro, and Armstrong, and I went on to KLM. But in those two years, Bill involved and trained me as he battled to gain Concorde access to the US; deal with the US legal issues associated with the BOAC-BEA merger; manage BOAC’s unit terminal legal issues; change New York tax laws to respect international aviation’s traditional tax exemptions; support BA’s participation in the suddenly expanding charter business; fight the CAB’s attempts to protect Freddy Laker from scheduled carrier competition; obtain antitrust immunity for, and negotiate, the capacity agreements necessitated by the 1973 oil crisis; defend BA against criminal rebating charges—all the while dealing with a host of day-to-day commercial and regulatory issues.
A month or so after I left British Airways, the UK renounced the Bermuda Agreement and the Bermuda II negotiations began.
Bill and I stayed in touch and visited each other for a while, after our BA days. BA continued to employ Bill as outside counsel. And thanks to Bill’s initial introductions, I developed close relationships with Elihu Schott, John McCaffery, and others at Pan Am and TWA as we fought on opposite sides in the battle to deregulate international aviation.
Ironically, as I left BA, Bill wished me good luck and gave me a parting piece of advice:
“Paul, you’ve only had two years here. If you are wise you should stay away from air politics. There is a guy at KLM named Or Wassenbergh who is one of the industry’s most renowned air political experts. You must know your stuff thoroughly when you deal with him. He doesn’t suffer fools lightly.”
When I arrived at KLM, my new boss gave me similar advice. As it turned out, my education continued under the wing of Or Wassenbergh. At the same time, it was Bill who moved away from air politics and into the much more lucrative area of equipment financing.
In the ensuing years, the Fifth Avenue ticket offices closed, American moved to Dallas, and many airlines merged or went bankrupt. The international air political emphasis became centered on bilateral negotiations in DC. As Bill and my career interests and locations drifted apart, so did we. With the finality of Bill’s passing, I’m left with a profound sense of the lost opportunity to share these recollections with their author. I just had to share this brief summary with colleagues who knew him or wished they had.
I am sad to report that my early mentor and former Partner, and one of our most respected aviation lawyers, William (Bill) C. Clarke III, passed away on July 16 at age 78.
Bill, a graduate of Columbia Law School (’65) and Dickenson College (’62), started his legal career at Pan Am in 1967. In 1971, he helped start up Amtrak. In 1973, he joined British Airways to run its U.S. legal team, later representing them in private practice in New York at Barrett Smith (later Lord Day Lord, Barrett Smith) where he specialized in complex aircraft lease finance transactions. He retired from Fulbright & Jaworski in 2002. In 1982, Bill asked me to open a Washington Office for Barrett Smith and I had the honor to work closely with him for 13 years. Bill was the best aviation lawyer I have known and will be greatly missed by his many colleagues and friends.
Bill is survived by his wife Jeanne; three daughters, Katherine, Elizabeth, and Jennifer; and six beautiful grandchildren.
Joanne W. Young, Managing Partner
Kirstein & Young, PLLC
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