Agency Rulings

Decision No. 351-A-2005

June 2, 2005

IN THE MATTER OF an application by Malaysian Airline System Berhad carrying on business as Malaysia Airlines for an exemption from the requirement to hold a non-scheduled international licence and for a charter program permit in order to permit it to operate two charter flights, on behalf of Formula One Management Ltd., from London, Stansted, United Kingdom to Mirabel, Quebec, Canada on June 4 and 5, 2005; and an application on behalf of itself and Flugfelagid Atlanta H/F carrying on business as Air Atlanta Icelandic for an approval pursuant to section 60 of the Canada Transportation Act, S.C. 1996, c. 10, and section 8.2 of the Air Transportation Regulations, SOR/88-58, as amended, to permit Malaysian Airline System Berhad carrying on business as Malaysia Airlines to provide its non-scheduled international service between the United Kingdom and Canada using a B747-200F aircraft and flight crew provided by Flugfelagid Atlanta H/F carrying on business as Air Atlanta Icelandic on June 4 and 5, 2005.

File Nos. M4212/M216
M5000/M216

Malaysian Airline System Berhad carrying on business as Malaysia Airlines (hereinafter Malaysia Airlines) has applied to the Canadian Transportation Agency (hereinafter the Agency) for an exemption from the application of paragraph 57(a) of the Canada Transportation Act (hereinafter the CTA) as set out in the title. It has also applied on behalf of itself and Flugfelagid Atlanta H/F carrying on business as Air Atlanta Icelandic (hereinafter Air Atlanta Icelandic) for an approval pursuant to section 60 of the CTA and section 8.2 of the Air Transportation Regulations (hereinafter the ATR) as set out in the title.

Pursuant to paragraph 57(a) of the CTA, no person shall operate an air service unless, in respect of that service, the person holds a licence issued under the CTA.

The Agency notes that while Malaysia Airlines does hold a licence to operate a scheduled international service between Malaysia and Canada, it does not hold the necessary non-scheduled international service licence.

The Agency has carefully considered the matter and notes that Malaysia Airlines holds a valid Canadian aviation document and has the prescribed liability insurance in respect of the proposed service.

In light of the foregoing, the Agency is of the opinion that, in the present circumstances, compliance by Malaysia Airlines with paragraph 57(a) of the CTA is impractical.

With respect to the request for a charter program permit, the Agency notes that the application was filed less than 15 days before the first planned flight as required by subparagraph 73(2)(c)(ii) of the ATR, and therefore an exemption from the application of this provision is necessary. The Agency has considered this matter and is of the opinion that compliance by Malaysia Airlines with subparagraph 73(2)(c)(ii) of the ATR is impractical in this case.

With respect to the request for an approval pursuant to section 60 of the CTA, the Agency notes that the application was filed less than 45 days before the first planned flight as required by subsection 8.2(2) of the ATR, and therefore an exemption from the application of this provision is necessary. The Agency is of the opinion that compliance with subsection 8.2(2) of the ATR is impractical in this case.

Accordingly, the Agency, pursuant to paragraph 80(1)(c) of the CTA, hereby exempts Malaysia Airlines from the application of paragraph 57(a) of the CTA and subparagraph 73(2)(c)(ii) and subsection 8.2(2) of the ATR.

The Agency hereby grants program permit number FECF-43/05 for the operation of two foreign originating entity cargo charter flights on behalf of Formula One Management Ltd. from London to Mirabel on June 4 and 5, 2005 carrying Formula One cars and equipment.

With respect to the request for an approval pursuant to section 60 of the CTA, the Agency has reviewed and considered the application and the material in support thereof and is satisfied that it meets the remaining requirements of section 8.2 of the ATR.

Accordingly, pursuant to paragraph 60(1)(b) of the CTA and section 8.2 of the ATR, the Agency hereby approves the use by Malaysia Airlines of aircraft and flight crew provided by Air Atlanta Icelandic, and the provision by Air Atlanta Icelandic of such aircraft and flight crew to Malaysia Airlines, in order to permit Malaysia Airlines to provide a non-scheduled international service between the United Kingdom and Canada using a B747-200F aircraft and flight crew provided by Air Atlanta Icelandic, on June 4 and 5, 2005 subject to the following conditions:

1. Air services shall be operated under the exemption from the requirement to hold a non-scheduled international licence granted to Malaysia Airlines by this Decision.
2. Commercial control of the flights shall be maintained by Malaysia Airlines.
3. Air Atlanta Icelandic shall retain operational control of the flights and shall receive payment based on the rental of aircraft and crew and not on the basis of volume of traffic carried or other revenue-sharing formula.

Malaysia Airlines and Air Atlanta Icelandic are reminded of the continuing requirements to comply with sections 8.2 and 8.5 of the ATR.

The approval granted herein does not exempt Malaysia Airlines and Air Atlanta Icelandic from the requirements of other legislative acts or regulations, including those of Transport Canada.

Malaysia Airlines is reminded to contact Transport Canada for compliance with security and dangerous goods requirements and the local airport authority for permission to operate at specific times or for the use of any airport facility. Regarding the availability of clearance services, Malaysia Airlines is reminded to contact the Canada Border Services Agency. In addition, this authority should be carried on board the aircraft.