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Air Transport Agreement between the Government of Canada and the Government of the Polish People's Republic [1977] CATSer 23 (28 October 1977)

E103363 - CTS 1977 No. 31

AIR TRANSPORT AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE POLISH PEOPLE’S REPUBLIC

THE Government of Canada and the Government of the Polish People’s Republic, hereinafter referred to as the Contracting Parties,

BEING parties to the Convention on International Civil Aviation opened for signature at Chicago, on the 7th day of December, l944,

DESIRING to conclude an Agreement on air transport between and beyond their respective territories,

HAVE agreed as follows:

ARTICLE I

For the purpose of this Agreement, unless otherwise stated, the terms:

(a) “Aeronautical Authorities” means, in the case of Canada, the Minister of Transport and the Canadian Transport Commission and, in the case of the Polish People’s Republic, the Minister for Transport, or in both cases, any other authority or person empowered to perform the functions now exercised by the said authorities;

(b) “Agreed services” means scheduled air services on the routes specified in the Annex to this Agreement for the transport of passengers, cargo and mail, separately or in combination;

(c) “Agreement” means this Agreement, the Annex attached thereto, and any amendments thereto;

(d) “Convention” means the Convention on International Civil Aviation opened for signature at Chicago on the 7th day of December, 1944;

(e) “Designated airline” means an airline which has been designated and authorized in accordance with Articles III and IV of this Agreement;

(f) “Territory”, “Air Service”, “International Air Service”, “Airline” and “Stop for non-traffic purposes” have the meaning respectively assigned to them in Articles 2 and 96 of the Convention.

1. Each Contracting Party grants to the other Contracting Party the following rights for the conduct of international air services by the airline designated by the other Contracting Party:

(a) to fly without landing across the territory of the other Contracting Party;

(b) to make stops in the said territory for non-traffic purposes; and

(c) to make stops in the said territory at the points named on the routes specified in the Annex for the purpose of taking up and discharging international traffic in passengers, cargo and mail, separately or in combination.

2. Nothing in paragraph 1 of this Article shall be deemed to confer on the airline of one Contracting Party the privilege of taking up, in the territory of the other Contracting Party, passengers, cargo and mail carried for remuneration or hire and destined for another point in the territory of that other Contracting Party.

ARTICLE III

Each Contracting Party shall have the right to designate by diplomatic note an airline to operate the agreed services on any route specified in the Annex for such a Contracting Party and to substitute another airline for that previously designated.

ARTICLE IV

1. Following receipt of a notice of designation or of substitution pursuant to Article III, the aeronautical authorities of the other Contracting Party shall, consistent with its laws and regulations, grant with a minimum of delay to an airline so designated the appropriate authorizations to operate the agreed services.

2. Upon receipt of such authorizations the airline may begin at any time to operate the agreed services, in whole or in part, provided that the tariffs established in accordance with the provisions of Article XII of this Agreement are in force in respect of such services.

ARTICLE V

1. The aeronautical authorities of each Contracting Party shall have the right to withhold the authorizations referred to in Article IV with respect to an airline designated by the other Contracting Party, to revoke such authorizations or impose on them conditions, temporarily or permanently:

(a) in the event of failure by such airline to qualify before the aeronautical authorities of that Contracting Party under the laws and regulations applied by these authorities in conformity with the Convention;

(b) in the event of failure by such airline to comply with the laws and regulations of that Contracting Party;

(c) in the event that they are not satisfied that substantial ownership and effective control of the airline are vested in the Contracting Party designating the airline or its nationals; and

(d) in case the airline otherwise fails to operate in accordance with the conditions prescribed under this Agreement.

2. Unless immediate action is essential to prevent infringement of the laws and regulations referred to above, the rights enumerated in paragraph 1 of this Article shall be exercised only after consultations with the aeronautical authorities of the other Contracting Party. Unless otherwise agreed by the Contracting Parties, such consultations shall begin within a period of sixty (60) days from the date the other Contracting Party receives the request.

ARTICLE VI

1. The laws, regulations and procedures of one Contracting Party relating to the admission to or departure from its territory of aircraft engaged in international air navigation or to the operation and navigation of such aircraft shall be complied with by the designated airline of the other Contracting Party upon entrance into, departure from and while within the said territory.

2. The laws and regulations of one Contracting Party respecting entry, clearance, transit, immigration, passports, customs and quarantine shall be complied with by the designated airline of the other Contracting Party and by or on behalf of its crews, passengers, cargo and mail upon transit of, admission to, departure from and while within the territory of such a Contracting Party.

ARTICLE VII

1. Certificates of airworthiness, certificates of competency and licences issued or rendered valid by one Contracting Party and still in force, shall be recognized as valid by the other Contracting Party for the purpose of operating the agreed services on the routes specified in the Annex to this Agreement provided that such certificates or licences were issued or rendered valid pursuant to and in conformity with the standards established under the Convention. Each Contracting Party reserves the right, however, to refuse to recognize, for the purpose of flights above its own territory, certificates of competency and licences granted to its own nationals by the other Contracting Party.

2. If the privileges or conditions of the licences or certificates referred to in paragraph 1 above, issued by the aeronautical authorities of one Contracting Party to any person or designated airline operating the agreed services on the routes specified in the Annex to this Agreement, should permit a difference from the standards established under the Convention, and which difference has been filed with the International Civil Aviation Organization, the aeronautical authorities of the other Contracting Party may request consultations with the aeronautical authorities of that Contracting Party with a view to satisfying themselves that the practice in question is acceptable to them. Failure to reach a satisfactory agreement in matters regarding flight safety will constitute grounds for the application of Article V, in other cases Article XX applies.

1. The charges imposed in the territory of either Contracting Party for the use of airports and other aviation facilities on the aircraft of the designated airline of the other Contracting Party shall not be higher than those imposed on aircraft of a national airline engaged in similar international air services.

2. Neither of the Contracting Parties shall give a preference to its own or any other airline over the airline of the other Contracting Party in the application of its customs, immigration, quarantine and similar regulations or in the use of airports, airways and air traffic services and associated facilities under its control.

ARTICLE IX

1. There shall be fair and equal opportunity for the airlines of both Contracting Parties to operate the agreed services on the routes specified in the Annex.

2. In operating the agreed services, the airline of each Contracting Party shall take into account the interest of the airline of the other Contracting Party so as not to affect unduly the services which the latter provides on the whole or part of the same route.

3. The agreed services provided by the designated airlines of the Contracting Parties shall bear reasonable relationship to the requirements of the public for transportation on the specified routes and shall have as their primary objectives the provision, at a reasonable load factor, of capacity adequate to carry the current and reasonably anticipated requirements for the carriage of passengers, cargo and mail between the territories of the Contracting Parties.

4. Provision for the carriage of passengers, cargo and mail both taken up and discharged at points on the specified routes in the territories of States other than that designating the airline shall be made in accordance with the general principle that capacity shall be related to:

(a) traffic requirements to and from the territory of the Contracting Party which has designated the airline;

(b) traffic requirements of the area through which the airline passes after taking account of other transport services established by airlines of the States comprising the area; and

(c) the requirements of through airline operation.

5. The capacity to be provided on the specified routes, i.e. frequency of services and type of aircraft, shall be agreed between the designated airlines in accordance with the principles laid down in this Article and subject to the approval of the aeronautical authorities of the Contracting Parties. In the absence of an agreement between the designated airlines, the matter shall be referred to the aeronautical authorities of the Contracting Parties which will endeavour to resolve the problem, if necessary, pursuant to Article XVIII of this Agreement. Pending an arrangement either at the airline level or between the aeronautical authorities the status quo shall be maintained.

ARTICLE X

1. The aeronautical authorities of both Contracting Parties shall provide each other with monthly statements of statistics, on a quarterly calendar basis, including all information required to determine the amount of traffic carried over the routes specified in the Annex and the initial origins and final destinations of such traffic.

2. The details of the statistical data to be provided and the methods by which such data shall be provided by one Party to the other, shall be agreed upon between the aeronautical authorities and implemented not later than three (3) months after the designated airline of one or both of the Contracting Parties commence operations, in whole or in part, of the agreed services.

3. Failure to reach a satisfactory agreement regarding the supply of statistics may, at the discretion of either Contracting Party, constitute grounds for the application of Article XVIII of the Agreement.

ARTICLE XI

1. Each Contracting Party shall on a basis of reciprocity exempt the designated airline of the other Contracting Party to the fullest extent possible under its national law from import restrictions, customs duties, excise taxes, inspection fees and other national duties and charges on aircraft, fuel, lubricating oils, consumable technical supplies, spare parts including engines, regular aircraft equipment, aircraft stores (including liquor, tobacco and other products destined for sale to passengers in limited quantities during the flight) and other items intended for use or used solely in connection with the operation or servicing of aircraft of the designated airline of such other Contracting Party operating the agreed services, as well as usual publicity material distributed without charge by that designated airline.

2. The immunities granted by this Article shall apply to the items referred to in paragraph 1 of this Article:

(a) introduced into the territory of one Contracting Party by or on behalf of the designated airline of the other Contracting Party;

(b) retained on board aircraft of the designated airline of one Contracting Party upon arriving in or leaving the territory of the other Contracting Party;

(c) taken on board aircraft of the designated airline of one Contracting Party in the territory of the other Contracting Party and intended for use in operating the agreed services;

whether or not such items are used or consumed wholly within the territory of the Contracting Party granting the immunity, provided such items are not alienated in the territory of the said Contracting Party.

1. The tariffs on any agreed service shall be established at reasonable levels, due regard being paid to all relevant factors including cost of operation, reasonable profit, characteristics of service (such as standards of speed and accommodation) and, where it is deemed suitable, the tariffs of other airlines for any part of the specified route. These tariffs shall be fixed in accordance with the following provisions of this Article.

2. The tariffs referred to in paragraph 1 of this Article shall be agreed upon between the designated airlines of the Contracting Parties; such agreement shall be reached, whenever possible, through the rate-fixing procedures of the international body which formulates proposals in this matter.

3. The tariffs so agreed shall be submitted to the aeronautical authorities of the Contracting Parties at least forty-five (45) days before the proposed date of their introduction; in special cases, a shorter period may be accepted by the aeronautical authorities. If within thirty (30) days from the date of submission the aeronautical authorities of one Contracting Party have not notified the aeronautical authorities of the other Contracting Party that they are dissatisfied with the tariff submitted to them, such tariff shall be considered to be acceptable and shall come into effect on the expiration of the forty-five (45) day period mentioned above. In the event that a shorter period for the submission of a tariff is accepted by the aeronautical authorities, they may also agree that the period for giving notice of dissatisfaction be less than thirty (30) days.

4. If a tariff cannot be established in accordance with the provisions of paragraph 2 above, or, if during the period applicable in accordance with paragraph 3 above a notice of dissatisfaction has been given, the aeronautical authorities of the Contracting Parties shall endeavour to determine the tariff by agreement between themselves.

5. If the aeronautical authorities cannot agree on any tariff submitted to them under paragraph 3 of this Article or on the determination of any tariff under paragraph 4, the dispute shall be settled in accordance with the provisions of Article XX of this Agreement.

6. (a) No tariff shall come into force if the aeronautical authorities of either Contracting Party are dissatisfied with it except under the provisions of paragraph 3 of Article XX of this Agreement.

(b) When tariffs have been established in accordance with the provisions of this Article, those tariffs shall remain in force until new tariffs have been established in accordance with the provisions of this Article or Article XX of this Agreement.

ARTICLE XIII

1. The rules and procedures relating to the sale of air transportation by the designated airline of either Contracting Party in the territory of the other Contracting Party shall be mutually agreed upon by both designated airlines subject to the approval of the appropriate authorities of both Contracting Parties.

2. Each Contracting Party grants to the designated airline of the other Contracting Party the right of free transfer of funds obtained by each in the normal course of its operations on the basis of the exchange rates applicable for current payments on the day of payment and shall be subject only to the respective foreign currency regulations applicable to all countries in like circumstances. The transfer of funds shall not be subject to any charges except those normally collected by banks for such operations.

ARTICLE XIV

Income or profits from the operation of an aircraft in international traffic derived by the designated airline of one Contracting Party in the territory of the other Contracting Party, shall be exempt from any income tax and all other taxes on profits imposed by that other Contracting Party.

ARTICLE XV

The designated airline of each Contracting Party shall be granted the right to station representatives and staff required for the operation of the agreed services in the territory of the other Contracting Party. Such representatives and staff shall be nationals of Canada and Poland and their location and number shall be agreed upon through consultations between the designated airlines of both Contracting Parties and shall be subject to the approval of the aeronautical authorities of both Contracting Parties. Such representatives and staff shall observe the laws and regulations in force of the other Contracting Party.

ARTICLE XVI

1. The crew members of an aircraft of the designated airline of either Contracting Party flying on the specified route shall be nationals of their countries. In case the designated airline of one Contracting Party deems it desirable to utilize crew members being nationals of third countries for the operation of agreed services, it can do so after approval of the aeronautical authorities of the other Contracting Party.

2. The crews of an aircraft of the designated airline of one Contracting Party shall, on the basis of reciprocity and as scheduling of the agreed services requires, be permitted temporary sojourn in the territory of the other Contracting Party.

ARTICLE XVII

The provisions set out in Articles VI, VII, VIII, XI, XIII, XIV and XVI of this Agreement shall be applicable also to charter and other non-scheduled flights operated by an airline of one Contracting Party into or from the territory of the other Contracting Party and to the airline operating such flights.

ARTICLE XVIII

In a spirit of close cooperation, the aeronautical authorities of the Contracting Parties shall consult each other from time to time with a view to ensuring the implementation of, and satisfactory compliance with, the provisions of this Agreement and its Annex.

ARTICLE XIX

If either of the Contracting Parties considers it desirable to modify any provision of this Agreement, it may request consultations with the other Contracting Party. Such consultations, which would be between aeronautical authorities and which may be through discussion or by correspondence, shall begin within a period of sixty (60) days from the date of the request. Any modification agreed pursuant to such consultations shall come into force when it has been confirmed by an exchange of diplomatic notes.

ARTICLE XX

1. Should any dispute relating to the interpretation or application of this Agreement and of the Annex thereto arise, the aeronautical authorities shall in the first place endeavour to settle it through direct negotiations between themselves. In the case where such negotiations were not successful the dispute shall be settled between the Contracting Parties.

2. If the Contracting Parties fail to reach a settlement by negotiations, they may agree to submit the dispute to arbitration in accordance with the procedures set forth herein.

3. Arbitration shall be by a tribunal of three arbitrators constituted as follows:

(a) One arbitrator shall be named by each Contracting Party within sixty (60) days of the date of delivery by either Contracting Party to the other of a request for arbitration. Within thirty (30) days after such period of sixty (60) days, the two arbitrators so designated shall by agreement designate a third arbitrator, who shall not be a national of either Contracting Party.

(b) If either Contracting Party fails to name an arbitrator, or if the third arbitrator is not agreed upon in accordance with sub-paragraph (a) either Contracting Party may request the President of the Council of the International Civil Aviation Organization to designate the necessary arbitrator or arbitrators.

4. Each Contracting Party shall use its best efforts consistent with its national law to put into effect any decision or award of the arbitral tribunal.

5. The expenses of the arbitral tribunal, including the fees and expenses of the arbitrators, shall be shared equally by the Contracting Parties.

ARTICLE XXI

Either Contracting Party may at any time give notice in writing through diplomatic channels to the other Contracting Party of its decision to terminate this Agreement; such notice shall be communicated simultaneously to the International Civil Aviation Organization. The Agreement shall terminate one (1) year after the date of receipt of the notice by the other Contracting Party, unless the notice to terminate is withdrawn by agreement before the expiry of this period. In the absence of acknowledgement of receipt by the other Contracting Party, the notice shall be deemed to have been received fourteen (14) days after the receipt of the notice by the International Civil Aviation Organization.

The present Agreement and any amendment thereto shall be registered with the International Civil Aviation Organization.

ARTICLE XXIII

If a general multilateral air convention comes into force in respect of both Contracting Parties, the provisions of such convention shall prevail. Consultations in accordance with Article XIX of this Agreement may be held with a view to determining the extent to which the present Agreement is affected by the provisions of the multilateral convention.

ARTICLE XXIV

This Agreement shall be applied provisionally from the date of its signature, and shall enter into force on the later of the dates on which the Contracting Parties shall each have notified the other by diplomatic note that they have obtained whatever internal approval may be required to give effect to this Agreement.

IN WITNESS WHEREOF, the undersigned, duly authorized thereto by their respective Governments, have signed this Agreement.

DONE in two copies at Ottawa this 14th day of May, 1976, in the English, French and Polish languages, each version being equally authentic.

Allan J. MacEachen

FOR THE GOVERNMENT OF CANADA

Stefan Olszowski

FOR THE GOVERNMENT OF THE POLISH PEOPLE’S REPUBLIC

ANNEX

SCHEDULE OF ROUTES

Route on which air services may be operated in both directions by the designated airline of Canada:

Note: The point beyond to be served with intransit privileges only.

Route on which air services may be operated in both directions by the designated airline of the Polish People’s Republic:

Note: The U.S. point may be served as an intermediate or beyond point. Any point other than New York to be served with intransit privileges only unless otherwise agreed between the aeronautical authorities on recommendation of the two designated airlines. If a point south of the U.S., selection to be subject to agreement between the aeronautical authorities of the Contracting Parties.

Any or all of the intermediate or beyond points on the specified routes in the above schedules may at the option of the respective designated airline be omitted on any or all flights provided that the point of origin on such a route lies in the territory of the Contracting Party that has designated the airline.

In addition to the above routes, the respective designated airline may exercise intransit privileges at intermediate points in Europe.

Each Contracting Party has the right to change its selection of intermediate or beyond points on six months notice.