Agency Rulings

Order No. 1999-A-187

April 21, 1999

IN THE MATTER OF the operation of charter flights by MNG Havayollari Ve Tasimacilik A.S. (MNG Airlines Cargo Inc.) doing business as MNG Airlines Cargo without the necessary Agency approval.

File No. M4425/M239

Under Licence No. 980132, MNG Havayollari Ve Tasimacilik A.S. (MNG Airlines Cargo Inc.) doing business as MNG Airlines Cargo (hereinafter MNG) is authorized to operate a non-scheduled international service to transport goods on a charter basis between points in Turkey and points in Canada.

On September 2, 1998, MNG's licence was amended by the Canadian Transportation Agency (hereinafter the Agency) by adding a condition allowing for the operation of 16 Canadian originating fifth freedom cargo flights, on behalf of Blue Sky Air Cargo, from Moncton, New Brunswick, Canada to Madrid, Spain from September 6 to October 27, 1998 (one-way) (Program Permit No. CECF-22EU refers).

On September 2, 1998, MNG's licence was further amended by adding a condition allowing for the operation of 16 Canadian originating fifth freedom cargo flights, on behalf of Chartermasters, from Moncton to Brussels, Belgium from September 6 to October 28, 1998 (one-way) ( Program Permit No. CECF-23EU refers). On September 18, 1998, the Agency, at the request of MNG, amended Permit No. CECF-23EU to reduce the number of flights to 14 between September 20 and October 28, 1998 and to change the destination to Liège, Belgium, in lieu of Brussels.

On October 9, 1998, the Agency further amended MNG's licence by adding a condition allowing for the operation of 1 foreign originating fifth freedom cargo flight, on behalf of Kraft Jacobs Suchard (Schweiz) AG from Liège to Moncton on October 9, 1998 (one-way). (Program Permit Number FECF-59EU refers).

An investigation by Agency staff revealed that:

1. On September 20, 1998, MNG operated a cargo flight from Moncton to Hahn, Germany and Istanbul, Turkey, contrary to the terms of its amended licence, which authorized flights to Liège and to Madrid only. MNG also failed to obtain a program permit from the Agency for such flight.
2. On October 13, 1998, MNG operated a cargo flight from Liège to Moncton on behalf of Kraft Jacobs Suchard (Schweiz) AG without obtaining prior authority from the Agency. This flight was authorized for October 9, 1998. Although it appears that a request to amend the authority to October 12, 1998 was sent by facsimile after regular business hours, it was not received by Agency staff until October 13, 1998.
3. On October 13, 1998, MNG operated a cargo flight from Moncton to Vitoria, Spain contrary to the terms of its amended licence which authorized flights to Liège and Madrid, and without obtaining a program permit from the Agency for such flight.

By LET-A-308-1998 dated November 27, 1998, the Agency provided MNG with the opportunity to show cause, within ten (10) days from the date of the letter, why the Agency should not find that MNG contravened subsection 74(2) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA) and paragraphs 33.1(a) and (b) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) with respect to the flights in question.

On December 3, 1998, in response to LET-A-308-1998, MNG indicates that, with respect to its flight from Liège to Moncton on October 13, 1998, it assumed that, in the absence of a reply from the Agency to the carrier's request to permit it to operate such flights, it could do so. With regard to its flights on September 20, 1998, from Moncton to Hahn, Germany and Istanbul, Turkey, and October 13, 1998, from Moncton to Vitoria, Spain, MNG states that it did not know that it needed the Agency's permission for a routing change. MNG advises that it will take particular care to ensure that any future flights are operated specifically according to the program permit details and that it will request the necessary Agency approval should it have to reroute a flight for operational reasons.

The Agency has reviewed the matter and finds that MNG contravened subsection 74(2) of the CTA and paragraphs 33.1(a) and (b) of the ATR by having operated cargo flights contrary to the terms and conditions of its amended licence.

The Agency has considered MNG's explanations for the contraventions and notes that the carrier has applied for a number of amendments to its current charter permits, and that MNG now appears to be advising the Agency of any changes to the carrier's charter operations. The Agency is satisfied that MNG is now aware of the requirements of subsection 74(2) of the CTA and paragraphs 33.1(a) and (b) of the ATR. Consequently, the Agency will not take any action against MNG at this time. However, MNG should be aware that the Agency views contraventions of the CTA and ATR as serious, particularly the operation of an air service contrary to the terms and conditions of the carrier's licence.