Decision No. 133-A-1997
March 12, 1997
APPLICATIONS by Air Canada and Korean Air Lines Co. Ltd. for an approval to allow Air Canada and Korean Air Lines Co. Ltd. to provide scheduled international air services by blocking space and selling transportation in their own name on each others' aircraft operating between Toronto and Seoul and between Vancouver and Seoul for a period of two years commencing September 10, 1996.
File No. M4835-2-30
Air Canada and Korean Air Lines Co. Ltd. (hereinafter Korean Air) have applied to the Canadian Transportation Agency (hereinafter the Agency) for the approval set out in the title. The applications were received on August 8 and October 8, 1996.
On July 1, 1996, the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), came into effect. Section 60 of the CTA and sections 8.2 to 8.5 of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR), now apply to the provision of aircraft with flight crew. In accordance with subsection 8.2(1) of the ATR, Agency approval of the applications is required.
The Agency notes that the initial application was not filed at least 45 days before the first planned flight, as required by subsection 8.2(2) of the ATR. However, the Agency has considered the applications and is of the opinion that, in this case, compliance by Air Canada and Korean Air with subsection 8.2(2) of the ATR is unnecessary, undesirable or impractical. Accordingly, pursuant to paragraph 80(1)(c) or the CTA, the Agency hereby orders that Air Canada and Korean Air be exempt from the application of subsection 8.2(2) of the ATR.
By letters dated September 9 and October 10, 1996, the Agency advised the applicants that although they substantially satisfied the requirements of section 8.2 of the ATR, the requirements of subsection 8.2(5) of the ATR had not been met. Accordingly, the Agency approved the applications on an exceptional basis and for a limited period of time (from September 10, 1996 to November 10, 1996) in order to allow Air Canada and Korean Air time to provide the Agency with amended documentation to satisfy the requirements of subsection 8.2(5) of the ATR. Amended documentation was received by the Agency on November 5 and 7, 1996.
The Agency has reviewed the applications and considered the amended documentation filed and is satisfied that the applications now meet the requirements of section 8.2 of the ATR, including the requirements of subsection 8.2(5). Accordingly, the Agency, pursuant to paragraph 60(1)(b) of the CTA and section 8.2 of the ATR, hereby approves the use by Air Canada and Korean Air of aircraft and flight crew belonging to the other air carrier, and the provision by Air Canada and Korean Air of such aircraft and flight crew to the other air carrier, so that each air carrier may block space and sell transportation in its own name on the other air carrier's aircraft on licensed routes for scheduled services between Toronto and Seoul and between Vancouver and Seoul, from September 10, 1996 to September 10, 1998.
Notwithstanding any provisions to the contrary in any agreement or arrangement between Air Canada and Korean Air, scheduled international air services may be provided by each air carrier by using space blocked on aircraft provided and operated by the other air carrier, pursuant to this approval, subject to the following conditions:
- Air Canada and Korean Air shall continue to hold the required licence authorities.
- Each air carrier 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.
- During the period of this approval, the Agency shall be notified of any changes to the allotment of space, frequency of service or aircraft type at least ten (10) days before implementation.
- The approval granted herein does not apply to the blocking of space for the carriage of cargo.
Air Canada and Korean Air are reminded of the continuing requirement to comply with sections 8.2 and 8.5 of the ATR.
It should be noted that the approval granted herein does not exempt Air Canada and Korean Air from the requirements of other legislative acts or regulations, including those of Transport Canada.
Statistics submitted in accordance with the Carriers Information Regulations, SOR/96-334, are required to distinguish the traffic carried by each air carriers. Detailed information regarding reporting requirements can be found in a document entitled "Instruction for Reporting Co-Host Data for Joint Agreement (scheduled) Flights", which is available from the Aviation Statistics Centre, Ottawa, Ontario, Canada K1A ON9, (819) 953-3347 (telephone) or (819) 953-8499 (facsimile).
The determinations set out in this Decision take effect on September 9, October 10 and November 8, 1996, the dates on which they were communicated by letters to the parties of record.
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