Decision No. 578-A-1999
October 12, 1999
APPLICATION by Sabena doing business as SABENA Belgian World Airlines and City Bird 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 Sabena to operate its scheduled international service between Montréal, Quebec, Canada and Brussels, Belgium, using aircraft and flight crew belonging to City Bird S.A., from October 31, 1999 to May 4, 2003.
File No. M4835-12-1
Docket No. 990982AG
Sabena doing business as SABENA Belgian World Airlines (hereinafter Sabena) and City Bird S.A. (hereinafter City Bird) have applied to the Canadian Transportation Agency (hereinafter the Agency) for the approval set out in the title. The application was received on September 14, 1999.
Sabena advises that it does not have sufficient aircraft to operate its scheduled international service to and from Canada. Sabena will have the use of the entire passenger and cargo capacity of City Bird's aircraft and will have commercial control of the flights while City Bird retains operational control of the aircraft.
Under Licence No. 975127, Sabena is authorized to operate a scheduled international service between Canada and Belgium in accordance with the Agreement between the Government of Canada and the Government of Belgium on Air Transport signed on May 13, 1986.
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 ATR.
The Agency notes that the intent of route rights granted under bilateral agreements is for designated airlines to provide scheduled international services with their own equipment.
In Decision No. 146-A-1999 dated March 31, 1999 which approved the use by Sabena of aircraft wet leased from City Bird during the period April 1, 1999 to October 30, 1999, the Agency requested a report from Sabena, advising of its plans with respect to the operation of its own aircraft and flight crew in providing its Canada-Belgium scheduled international service and the proposed date of entry into service of such aircraft. In reply to the Agency's request, Sabena advised on April 29, 1999 that "it is currently exploring the possibility of introducing its Airbus aircraft on its service between Montréal and Brussels as of April 1, 2000".
The Agency is of the opinion that the use by a carrier of aircraft and flight crew provided by another carrier should be for short periods only, and under exceptional circumstances. The Agency notes that the approval for the three years and seven month period requested in this application, when combined with the previous approvals granted from May 6, 1998 to October 30, 1999, would result in a 5 year period during which Sabena would provide its scheduled international service between Montréal and Brussels using aircraft and flight crew provided by City Bird.
In the opinion of the Agency, the three years and seven month period requested in this application is too long. Therefore, the Agency is only prepared to grant at this time the use by Sabena of City Bird's aircraft for a five (5) month period only, which coincides with the IATA winter season.
Accordingly, the Agency, pursuant to paragraph 60(1)(b) of the CTA and section 8.2 of the ATR, hereby approves the use by Sabena of aircraft and flight crew provided by City Bird, and the provision of such aircraft and flight crew by City Bird to Sabena to permit Sabena to provide its scheduled international service between Montréal, Quebec, Canada and Brussels, Belgium, from October 31, 1999 to March 31, 2000 only, subject to the following conditions:
- Air services shall be operated under the scheduled international licence of Sabena (Licence No. 975127).
- Commercial control of the flights shall be maintained by Sabena. All tickets, including boarding passes and other traffic documents, shall clearly indicate that the service is provided by Sabena. Notwithstanding any provisions to the contrary in any commercial agreement between Sabena and City Bird and, in particular, paragraph 12.5 of the Aircraft Wet Lease Agreement dated March 26, 1998, City Bird is prohibited from selling transportation in its own name.
- Operational control of the flights shall be maintained by City Bird which shall receive payment based on the rental of aircraft and crew and not on the basis of the volume of traffic carried.
- Sabena 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 two air carriers relating to limits of liability shall diminish the rights of passengers as stated in such tariffs.
Sabena's plans for the use of its Airbus aircraft appear to still be evolving. In April 1999, it was exploring the possibility of introducing its Airbus aircraft on its service between Montréal and Brussels as of April 1, 2000 and, Sabena and City Bird have now extended their wet lease agreement until May 4, 2003.
In light of the above, Sabena is hereby requested to provide the Agency, in advance of any request for an extension of this authority, with an update of Sabena's plans to utilize its own aircraft and flight crew in providing its Canada/Belgium scheduled international service.
It should be noted that the Agency is not bound by its previous decisions and, accordingly, this approval should not be relied upon for justification for similar applications in the future.
Sabena and City Bird 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 Sabena and/or City Bird from the requirements of other legislative acts or regulations, including those of Transport Canada.