Decision No. 53-A-2002
January 30, 2002
APPLICATION by Cubana de Aviacion S.A., on behalf of itself and TACA International Airlines S.A., 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 Cubana Aviacion S.A., while providing its scheduled international service (excluding all-cargo international services) between Cuba and Canada, to operate flights using A-320 aircraft and flight crew provided by TACA International Airlines S.A. until April 30, 2002, the end of its winter schedule or, if possible, until October 31, 2002, the end of its summer program.
File No. M4835-C16-1
Docket No. 011310AG
Cubana de Aviacion S.A. (hereinafter Cubana), on behalf of itself and TACA International Airlines S.A. (hereinafter TACA), has applied to the Canadian Transportation Agency (hereinafter the Agency) for the approval set out in the title. The application was received on December 7, 2001.
Under Licence No. 975160, Cubana is authorized to operate a scheduled international service between Cuba and Canada in accordance with the Air Transport Agreement between the Government of Canada and the Government of the Republic of Cuba signed on February 12, 1998.
Cubana states in its application that it is wet leasing A-320 aircraft from TACA in order to offer its passengers the same high quality service as other competitive airlines do in the market. It adds that it is still in the process of obtaining its own aircraft of that type which has not been possible. It is asking the authorization to cover its operation for the whole year 2002 to be able to comply with its commitments.
Notice of the application was given to interested parties and no objections were filed with the Agency. However, Air Canada noted its continued concern over the difficulties it had experienced with the Cuban Goverment during 2001 when shipping hard cargo on its charter service to Varadero. Air Canada adds that although it has received assurance from local authorities that no "hard freight shipment" would be refused, it has not be able to test and confirm if the situation had improved in this respect. Therefore, Air Canada proposed an approval to the end of the IATA winter season, i.e., March 30, 2002.
The Agency has reviewed and considered the application and the material filed in support thereof and is satisfied that it meets the requirements of section 8.2 of the Air Transportation Regulations (hereinafter the ATR). The Agency considers that the end of the IATA summer season on October 26, 2002 will provide Cubana with some certainty for its operations and Air Canada time to resolve its concerns on cargo.
Accordingly, the Agency, pursuant to paragraph 60(1)(b) of the Canada Transportation Act and section 8.2 of the ATR, hereby approves the use by Cubana of aircraft and flight crew provided by TACA, and the provision by TACA of such aircraft and flight crew to Cubana, in order to permit Cubana, while providing its scheduled international service (excluding all-cargo international services) between Cuba and Canada, to operate flights using A-320 aircraft and flight crew provided by TACA, from February 1, 2002 to October 26, 2002, subject to the following conditions:
- The air services shall be operated under Cubana's scheduled international licence (Licence No. 975160).
- Commercial control of the flights shall be maintained by Cubana. All tickets, including boarding passes, shall clearly indicate that the service is provided by Cubana.
- Operational control of the flights shall be maintained by TACA which shall receive payment based on the rental of aircraft and crew and not on the basis of the volume of traffic carried.
- Cubana shall apply its published tariffs, on file with the Agency and in effect, to the carriage of its traffic. In particular, nothing in any commercial agreement between the air carriers relating to limits of liability shall diminish the rights of passengers as stated in such tariffs.
- The air services approved herein shall only be provided as long as the Aircraft Leasing Agreement [Contrato de Arrendamiento A.C.M.I., (Fletamento) de Aeronave] of February 16, 2001 providing for such services remains in effect.
Cubana and TACA are reminded of the continuing requirement to comply with sections 8.2 and 8.5 of the ATR.
The approval granted herein does not exempt Cubana and TACA from the requirements of other legislative acts or regulations, including those of Transport Canada.