Decision No. 647-A-2007

December 21, 2007

File No. M5000/F158

Finnair OYJ (hereinafter Finnair) has applied to the Canadian Transportation Agency (hereinafter the Agency) for authority to operate the service set out in the title. The application was received on December 10, 2007 and was complete and ready for processing on December 11, 2007.

Under Licence No. 977282, Finnair is authorized to transport traffic on a charter basis between points in Finland and points in Canada.

Finnair seeks permission, on an urgent basis, to onload bellyhold cargo on a unit toll basis at Halifax, which cargo is destined for Helsinki, while operating passenger charter flights between Helsinki and each of Panama City, Puerto Plata, Punta Cana, Cancun, and Holguin.

Subsection 74(5) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) provides, inter alia, that no air carrier operating an ongoing or return portion of a foreign originating passenger charter shall take on board at any point in Canada goods except in accordance with section 23 of the ATR.

Paragraphs 23(1)(b) and 23(1)(c) of the ATR provide, inter alia, that every non-scheduled international licence providing for the operation of international charters is subject to the condition that no goods be carried for remuneration on an aircraft used for a passenger charter flight except pursuant to another charter contract that is for only part of the bellyhold of the aircraft and between the points served for the purpose of embarking or disembarking passengers.

Finnair requests that the Agency's permission be granted on an urgent basis while the Agency considers another similar application previously filed by Finnair and for which the Agency has solicited the comments of Canadian carriers by December 18, 2007. Finnair submits that while the other application did not have a specific start date, the urgency of this request stems from recent and immediate needs expressed by the seafood industry in Halifax to transport fresh seafood to the Scandinavian market while the season for such product is at its peak.

Finnair states that as the seafood season is peaking, it has received several inquiries from local suppliers in the Halifax area about the availability of space for cargo, especially seafood, on Finnair's flights that make technical stops in Halifax. Finnair submits that shippers in the Halifax area are eager to use the extra capacity that its flights would offer.

In support of its request, Finnair provided copies of correspondence it has received from R&D Nickerson Fish Products Ltd., Riverside Lobster and Seafood, KWE Canada and Ferguson's Lobster which express an urgent and immediate need for Finnair's proposed service to transport seafood and seafood product to Scandinavian markets. All indicated that as a result of capacity reductions, producers are having logistical problems getting their product to market over the high season in the month of December and will lose business to American producers if unable to do so.

In a letter dated December 10, 2007 the Halifax Robert L. Stanfield International Airport Authority stated that it supports Finnair's application to carry exports from Halifax. The Halifax Robert L. Stanfield International Airport Authority submits that the timing of Finnair's request is critical due to the upcoming Christmas period when demand for hard shell live lobsters in the markets of Europe is at its highest, peaking by December 15, 2007, and requests that Finnair be granted approval as soon as possible.

The Agency has reviewed and considered the application and notes that the service proposed by Finnair would be operated pursuant to its non-scheduled international Licence No. 977282. The Agency notes, however, that subsection 74(5) of the ATR applies in this case and therefore Finnair is subject to the conditions imposed by section 23 of the ATR.

Given the nature of Finnair's proposed operation, the immediate needs of Canadian seafood producers for sufficient lift during the December high season for seafood and seafood product and the benefits this would provide to Canadian seafood producers, the Agency is of the opinion that compliance by Finnair with paragraphs 23(1)(b) and 23(1)(c) of the ATR in respect of the transportation of seafood and seafood product is undesirable in this instance on four flights from December 13 to December 20, 2007.

Accordingly, the Agency, pursuant to paragraph 80(1)(c) of the Canada Transportation Act, S.C., 1996, c. 10, as amended, hereby orders that Finnair be exempt from the application of paragraphs 23(1)(b) and 23(1)(c) of the ATR, thereby permitting it to transport seafood and seafood product destined to Helsinki, on a unit toll basis, in the unused bellyhold space on aircraft used for passenger charter flights between Helsinki, and each of Panama City, Puerto Plata, Punta Cana, Cancun, and Holguin, on four flights from December 13 to December 20, 2007.

Finnair is required to contact Transport Canada or the Halifax Robert L. Stanfield International Airport Authority regarding permission to operate at specific times and for compliance with security requirements.

With respect to the availability of clearance services, Finnair shall contact the Canada Border Services Agency. Finnair must comply with all other applicable requirements of legislative acts or regulations, including those of Transport Canada.

It should be noted that the Agency is not bound by its previous decisions and that, accordingly, this exemption should not be relied upon for justification for similar applications in the future.

This decision takes effect on December 12, 2007, the date on which it was communicated verbally to Finnair.

Members

• John Scott
• J. Mark MacKeigan