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Commercial Air Transport Agreement between the Government of Canada and the Government of the Argentine Republic [1987] CATSer 7 (6 February 1987)

E100022 - CTS 1987 No. 4

COMMERCIAL AIR TRANSPORT AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE ARGENTINE REPUBLIC

The Governments of Canada and of the Argentine Republic, hereinafter referred to as the Contracting Parties,

Both being parties to the Convention on International Civil Aviation opened for signature at Chicago on the 7th day of December, 1944,

DESIRING to conclude an Agreement which governs air transport services between their respective territories,

HAVE AGREED AS FOLLOWS:

ARTICLE I

The Contracting Parties grant to each other the rights specified in this Agreement and its Annex with the purpose of establishing the international schedule air services of passengers, mail and cargo either separately or in combination as described in the Schedule of Routes.

ARTICLE II

For the purpose of this Commercial Air Transport Agreement, unless otherwise stated:

a) "Aeronautical Authorities" means, in the case of Canada, the Minister of Transport and the Canadian Transport Commission and, in the case of Argentina the Commander-in-Chief of the Air Force - National Directorate of Commercial Air Transportation 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 Schedule of Routes annexed to the Agreement for the transport of passengers, cargo and mail, separately or in combination;

c) "Agreement" means the articles of the Commercial Air Transport Agreement in which reciprocal rights and basic principles are recognized;

d) "Annex" means Sections I, II, III and IV of the Commercial Air Transport Agreement regulating the execution of what has been stipulated in the Agreement;

e) "Schedule of routes" means that part of the Commercial Air Transport Agreement in which the itineraries to be covered by the airlines designated by said Parties are established;

f) "Convention" means the Convention on International Civil Aviation opened for signature at Chicago on the seventh day of December 1944 and includes any Annex adopted under Article 90 of that Convention and any amendment of the Annexes or Convention under Articles 90 and 94 thereof so far as those Annexes and amendments have been adopted by both Contracting Parties;

g) "Designated airline" means an airline which has been designated and authorized in accordance with Articles IV and V of this Agreement;

h) "Tariffs" shall be deemed to include all tolls (rates, fares, charges for transportation, classifications, allowances), conditions of carriage, rules, regulations, and practices related thereto, but excluding remuneration and conditions for the carriage of mail;

i) "Territory", "Air Services", "International Air Services", "Airline" and "Stop for non-traffic purposes" have the meaning respectively assigned to them in Article 2 and 96 of the Convention.

ARTICLE III

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 at airports open to international air traffic;

c) to make stops in the said territory for the purpose of taking up and discharging, while operating on the routes specified in the Schedule of Routes, 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 IV

Each Contracting Party shall have the right to designate an airline, or to substitute therefore another airline, to operate the agreed services by notifying the other "Contracting Party by diplomatic note.

ARTICLE V

1. Following receipt of a notice of designation or of substitution pursuant to Article IV of this Agreement, 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 agreed services.

2. Upon receipt of such authorizations the designated 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 Section IV of the Annex to this Agreement are in force in respect of such services.

ARTICLE VI

1. The aeronautical authorities of each Contracting Party shall have the right to withhold the authorizations referred to in Article V of this Agreement 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 normally and reasonably 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 such airline are vested in the Contracting Party designating the airline or its nationals;

d) in case the airline otherwise fails to operate in accordance with the conditions prescribed under the Commercial Air Transport Agreement.

2. Unless immediate action is essential to prevent infringement of the laws and regulations referred to above, the right 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 thirty (30) days from the date the other Contracting Party receives the request.

ARTICLE VII

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 a Contracting Party respecting entry, clearance, transit, immigration, passports, customs, agriculture and health 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, in accordance with the procedures established by the relevant authorities.

3. The crews registered on the corresponding documents on board the aircraft, of both Contracting Parties, operating the agreed services, shall hold a valid passport or a certificate of crew membership issued in their name.

ARTICLE VIII

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 specified in the Schedule of Routes 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 of this Article, issued by the aeronautical authorities of one Contracting Party to any person or designated airline operating the agreed services specified in the Schedule of Routes, 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 VI of this Agreement; in other cases Article XVI of this Agreement applies.

ARTICLE IX

1. The charges imposed in the territory of either Contracting Party on the aircraft of the designated airline of the other Contracting Party for the use of airports and other aviation facilities 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, agriculture, health and similar regulations or in the use of airports, airways, air traffic services and associated facilities under its control.

ARTICLE X

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 liquors, tobacco and other products destined for sale to passengers in limited quantities during the flight) and other items intended for use 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 exemptions 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 exemption, provided such items (except for the usual publicity material distributed without charge) are not alienated in the territory of the said Contracting Party.

3. The regular airborne equipment, as well as the materials and supplies normally retained on board the aircraft of either Contracting Party may be unloaded in the territory of the other Contracting Party only with the approval of the Customs authorities of that territory. In such case, they may be placed under the supervision of the said authorities up to such time as they are re-exported or otherwise disposed of in accordance with Customs regulations.

ARTICLE XI

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 (passenger and cargo), carried over the routes specified in the Schedule of Routes and the points of embarkation and disembarkation of such traffic on these routes.

2. The details of the statistical data to be provided and the methods by which such data shall be provided by one Contracting 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 commences operations, in whole or in part, of 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 XIV or Article XVI of this Agreement.

ARTICLE XII

1. Each designated airline shall have the right to engage in the sale of air transportation in the territory of the other Contracting Party directly and, in its discretion, through its agents. Such airline shall have the right to sell such transportation, and any person shall be free to purchase such transportation in the currency applicable in each case.

2. Each Contracting Party grants to the airline of the other Contracting Party the right of free transfer of funds obtained in the normal course of its operations. Such transfers shall be effected on the basis of the foreign exchange market rates for current payments prevailing at the time of the transfer 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 XIII

The designated airline of one Contracting Party shall have the right to maintain in the territory of the other Contracting Party its representatives and commercial, operational and technical staff as required in connection with the operation of agreed services. These staff requirement may, at the option of the designated airline, be satisfied by its own personnel or by using the services of any other competent organization, company or airline operating in the territory of the other Contracting Party. Such representatives and staff shall be subject to the laws and regulations in force of the other Contracting Party.

ARTICLE XIV

1. 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 satisfactory compliance with the provisions of the Commercial Air Transport Agreement.

2. Such consultations shall begin within a period of sixty (60) days from the date of a request for consultations.

ARTICLE XV

If either of the Contracting Parties considers it desirable to modify any provision of the Commercial Air Transport Agreement, it may request consultations with the other Contracting Party. Such consultations, which may 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 XVI

1. Any dispute about the interpretation or application of the Commercial Air Transport Agreement which cannot be solved through consultation or negotiation shall be submitted to a Tribunal at the request of the Contracting Parties.

2. The Tribunal shall be made up of three arbitrators, one appointed by each Contracting Party who in turn shall appoint a third arbitrator, who shall be subject to confirmation by each of the Contracting Parties. The members of the Tribunal shall be appointed within a period of forty-five (45) days as from the date in which one of the Contracting Parties advises the other of its intention of submitting the disagreement to arbitration and the third member of the Tribunal shall be appointed within sixty (60) days as of the date of appointment of the first two.

3. If the deadlines mentioned in the previous paragraph are not met each one of the Contracting Parties if there is no other agreement can request the President of the Council of the International Civil Aviation Organization (ICAO) to make the necessary appointments. In case that said President is a citizen of one of the countries of the two Contracting Parties or is impeded for other reasons, his alternate shall make the relevant appointments.

4. The Tribunal shall adopt its own rules of procedure, shall decide by majority vote, and shall render its decision not later than sixty (60) days after its appointment, and its decision shall be binding on both Contracting Parties. Each Contracting Party shall be responsible for the expenses of its arbitrator. The expenses of the third member as well as other expenses incurred shall be borne equally by both Contracting Parties.

5. If and so long as either Contracting Party fails to comply with a decision given under paragraph 4 of this Article, the other Contracting Party may limit, withhold or revoke any rights or privileges which it has granted by virtue of the Commercial Air Transport Agreement to the Contracting Party in default or to the designated airline in default.

ARTICLE XVII

Either Contracting Party may at any time from the entry into force of the Commercial Air Transport Agreement give notice in writing through diplomatic channels to the other Contracting Party of its decision to terminate the Commercial Air Transport Agreement; such notice shall be communicated simultaneously to the International Civil Aviation Organization. The Commercial Air Transport Agreement shall terminate six (6) months 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.

ARTICLE XVIII

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

ARTICLE XIX

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 Articles XIV and XV of this Agreement may be held with a view to determining the extent to which the Commercial Air Transport Agreement is affected by the provisions of the said multilateral convention.

ARTICLE XX

The Commercial Air Transport 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 Commercial Air Transport Agreement.

SIGNED at the City of Buenos Aires, Capital of the Argentine Republic, on the 8th day of May 1979, in two copies in the following languages, English, French and Spanish all equally authentic.

Dwight W. Fulford

FOR THE GOVERNMENT OF CANADA

Carlos W. Pastor

FOR THE GOVERNMENT OF THE ARGENTINE REPUBLIC

ANNEXE

SECTION I

The Government of Canada grants to the Government of the Argentine Republic the right to carry out by its designated airline air services along the route described in Section I of the Schedule of Routes, and, reciprocally, the Government of the Argentine Republic grants to the Government of Canada the right to carry out by its designated airline air services along the route described in Section II of the Schedule of Routes.

SECTION II

Each Contracting Party reaffirms that it undertakes to grant without delay to the other Contracting Party the use of rights outlined in Article III paragraph 1 of this Agreement.

SECTION III

1. There shall be fair and equal opportunity for the designated airline of each Contracting Party to operate the agreed services on the routes specified in the Schedule of Routes.

2. In operating the agreed services, the designated airline of each Contracting Party shall take into account the interest of the airline of the other Contracting Party so as not to effect unduly the services which the latter provides on the whole or part of its respective 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 meet the current and reasonably anticipated requirements for the carriage of passengers, cargo and mail between the territory of the Party which has designated the airline and the territory of the other Contracting Party, taking into account traffic rights agreed to by the Contracting Parties at intermediate points.

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 designating the airline shall be made in accordance with the general principle that capacity shall be related to:

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

b) subsidiary 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 complementary requirements of through airline operation.

5. The capacity to be provided on the specified routes, i.e. frequency, aircraft type, configuration, and scheduling of services, shall be agreed between the designated airlines in accordance with the principles laid down in this Section 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 pursuant to Article XIV of this Agreement. In the absence of an agreement on capacity between the aeronautical authorities, the capacity shall be maintained at, or reduced to, the level of capacity agreed to at the time of signature of the Commercial Air Transport Agreement.

SECTION IV

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, currency exchange differentials, 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.

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-setting procedures of the International Air Transport Association. Each designed airline shall be responsible only to its own aeronautical authorities for the justification and reasonableness of the tariffs so agreed.

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. Approval or disapproval of these tariffs shall occur according to the relevant procedures of the aeronautical authorities of the country concerned. The period of time for such action shall be thirty (30) days from the day of submission of the tariffs to the aeronautical authorities. 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 be less than thirty (30) days.

4. If a tariff cannot be established in accordance with the provisions of paragraph 2 of this Section, or, if during the period applicable in accordance with paragraph 3 of this Section, one of the Contracting Parties has not approved or 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 or under paragraph 4 of this Section, the dispute shall be settled in accordance with the provisions of Article XVI 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 4 of Article XVI of this Agreement.

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

7. If the aeronautical authorities of one of the Contracting Parties become dissatisfied with or wish to review an established tariff they shall notify the aeronautical authorities of the other Contracting Party and the designated airlines shall attempt to reach an agreement. Should the designated airlines fail to agree, the procedures as set out in paragraphs 4 and 5 of this Section shall apply.

8. The aeronautical authorities of both Contracting Parties shall endeavour to ensure that (1) the tariffs charged and collected conform to the tariffs approved by both aeronautical authorities and (2) no airline rebates any portion of such tariffs by any means, directly or indirectly, including the payment of excessive sales commission to agents.

SCHEDULE OF ROUTES

SECTION I

Route to be operated by the designated airline of the Argentine Republic.

Notes:

1. In the operation of the agreed services on the specified route the airline designated by the Argentine Republic shall have the right to put down and take on at the point specified in the territory of Canada international traffic in passengers, cargo and mail coming from or destined to Argentina as well as the agreed intermediate points (New York, Miami and Rio de Janeiro).

2. The exercise of fifth Freedom rights between Rio de Janeiro and Montreal shall be guaranteed to the designated airline of Argentina for a period of three (3) years after the date of signature of the Air Transport Agreement.

When a Canadian airline is designated to serve Rio de Janeiro all fifth Freedom rights shall be reviewed within six (6) months of such designation.

If no agreement on fifth Freedom rights is reached during the review period, negotiations would continue but all fifth Freedom rights granted to both carriers shall be suspended (a) at the end of the six (6) month period or (b) on the date of commencement of operations by a Canadian carrier, whichever is the later. In any event, fifth Freedom rights of either designated airline shall not be suspended during the three (3) year period referred to in the first paragraph of this note.

3. A stop at New York is mandatory on flights carrying fifth Freedom traffic between Miami and Montreal and shall constitute an integral part of the review of fifth Freedom rights referred to in Note 2 above.

SECTION II

Route to be operated by the designated airline of Canada:

Note:

In the operation of the agreed services on the specified route the airline designated by Canada shall have the right to put down and take on at the point specified in the territory of the Argentine Republic international traffic in passengers, cargo and mail coming from or destined to Canada as well as the intermediate points (Lima, Santiago and two other points to be named by Canada).

General Notes Applicable to the Schedule of Routes

(1) The designated airline of each Contracting Party shall have intransit rights at the intermediate points on the specified routes.

(2) The right to carry stopover traffic may be exercised at the intermediate points on the specified routes provided that the period of such stopover shall not exceed 15 days, except as shall be otherwise agreed by the Aeronautical Authorities of the Contracting Parties.

(3) Unless otherwise provided in Section I, any or all of the intermediate points on the specified routes may at the option of the designated airline be omitted on any or all flights provided that the point of origin on such route lies in the territory of the Contracting Party designating the airline.

(4) The designated airline of either Contracting Party may make a change of gauge at the intermediate points on the specified routes provided that:

(i) Operations beyond the point of change of gauge shall be performed by an aircraft having capacity less for outbound services, or more for inbound services than that of the arriving aircraft.

(ii) Such aircraft shall have the same flight number.

(5) Intra-airline connections at the intermediate points on the specified routes are authorized provided that the passenger remains in transit unless otherwise authorized by the schedule of routes and the scheduled time between the connecting flights does not exceed six (6) hours.

(6) The initial capacity shall permit the operation of not more than two (2) weekly frequencies with Boeing 707 or DC8 or equivalent type aircraft for each designated airline.

(7) It is understood that two frequencies operating with narrow body aircraft (Boeing 707 - DC8 of any type) shall be equivalent of one frequency using wide body aircraft (Boeing 747 - L10111 - DC10 of any type)...