BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of

COMPAGNIE AÉRIENNE

INTER RÉGIONALE EXPRESS (CAIRE)

for an exemption under 49 U.S.C. § 40109 and a

foreign air carrier permit under 49 U.S.C. § 41301

(Guadeloupe/Martinique/St. Martin-San Juan)

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Docket DOT-OST-2013-0200

RESPONSE OF COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS

(CAIRE) TO “MOTION TO DENY” OF MR. SERGE BARDER

Communications with respect to this document should be addressed to:

Robert E. Cohn

HOGAN LOVELLS US LLP

555 Thirteenth Street, NW

Washington, DC 20004

+1 202 637 4999 (telephone)

+1 202 637 5910 (fax)

robert.cohn@hoganlovells.com

Counsel for

COMPAGNIE AÉRIENNE

INTER RÉGIONALE EXPRESS (CAIRE)

February 6, 2014
BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of

COMPAGNIE AÉRIENNE

INTER RÉGIONALE EXPRESS (CAIRE)

for an exemption under 49 U.S.C. § 40109 and a

foreign air carrier permit under 49 U.S.C. § 41301

(Guadeloupe/Martinique/St. Martin-San Juan)

)

)

)

)

)

)

)

)

Docket DOT-OST-2013-0200

RESPONSE OF COMPAGNIE AÉRIENNE INTER RÉGIONALE EXPRESS

(CAIRE) TO “MOTION TO DENY” OF MR. SERGE BARDER

Compagnie Aérienne Inter Régionale Express (CAIRE) hereby responds to

the late and unauthorized Answer (styled as a “Motion to Deny”) to its application

for a foreign air carrier permit and exemption, filed by Mr. Serge Barder on

February 3, 2014. Mr. Barder’s pleading was filed nearly two months after

answers to the application were due. He has not asserted any basis, much less

good cause, for his extremely late and otherwise unauthorized response to

CAIRE’s application. Nonetheless, in the event the Department accepts

Mr. Barder’s unauthorized filing, CAIRE requests leave to submit this response to

address the false, unfounded and irrelevant allegations contained in Mr. Barder’s

submission, to ensure a complete and accurate record. CAIRE will limit its

response to those issues raised in Mr. Barder’s “Motion” dated February 3, 2014,
Response of CAIRE

Page 2

and will not address his previous “Petition for Objecting,” which he asked to be

removed from the docket.1

In response to Mr. Barder’s Motion, CAIRE states as follows:

1. Mr. Barder’s underlying interest in CAIRE’s application is unclear, but he

opens his pleading by claiming that he previously held an “executive position”

with CAIRE. That assertion is false. He has never been an officer or

employee of CAIRE in any capacity.

2. Mr. Barder makes various accusations that CAIRE failed to provide complete,

correct or sufficient information in its application. On the contrary, CAIRE

provided all information required under DOT’s U.S.-EU Reciprocal Recognition

Procedures Notice dated February 19, 2009. Its application contains no

misleading or inaccurate information. CAIRE is an airline based in a French

overseas territory covered by the EU-U.S. “Open-Skies” Air Transport

Agreement, and is duly licensed by the DGAC of France. As such, CAIRE is,

without question, eligible to apply for DOT authority under the abbreviated

U.S.-EU Reciprocal Recognition Procedures. Mr. Barder offers no legitimate

reason for the Department to require CAIRE to file additional information

under 14 C.F.R. § 211.20, beyond what is required under DOT’s U.S.-EU

Reciprocal Recognition Procedures Notice.

3. Mr. Barder cryptically asserts that he will have some type of “additional and

confidential information” to present to the Department following CAIRE’s

1

Since Mr. Barder’s initial “Petition” was also unauthorized, CAIRE does not object to its removal

from the docket.
Response of CAIRE

Page 3

submission of a new application containing additional financial and citizenship

information. The Department should reject Mr. Barder’s tactic to delay the

processing of CAIRE’s permit/exemption authority, to which CAIRE is entitled

under the EU-U.S. open-skies agreement. CAIRE has already filed a

complete application in accordance with the U.S.-EU Reciprocal Recognition

Procedures Notice, and Mr. Barder has offered his comments regarding that

application (albeit in a very untimely and irregular manner). CAIRE should not

be burdened with the requirement to file additional, unnecessary information,

nor should Mr. Barder be afforded any additional opportunity to respond.

4. Mr. Barder’s ridiculous attempt to call into question the legitimacy of the OST

Form 4523 submitted by CAIRE is completely misguided. The Counterpart

Agreement was executed by Mr. Serge Tsygalnitzky, who was duly appointed

as Directeur Général Délégué (that is the French equivalent to a CEO) by

CAIRE’s Board of Directors on June 4, 2013. Pursuant to Article L225-56 of

the French commercial code (as modified by law N 2001-420, May 15, 2001-

Article 107), the “delegated” Director General (considered to be the Chief

Executive Officer) has the same authority as the Director General.

Mr. Tsygalnitzky is unquestionably legally authorized by the Company to

execute the counterpart agreement on CAIRE’s behalf.

Mr. Christian Marchand is CAIRE’s Chairman of the Board and Directeur

Général. He presided over the June 2013 Board meeting at which

Mr. Tsygalnitzky was appointed as Directeur Général Délégué, authorizing

him to act on behalf of the company.
Response of CAIRE

Page 4

5. It is clear that Mr. Barder does not understand, and as a result,

mischaracterizes, airline trade name practices and requirements. It is a

common and accepted global practice for air carriers to operate under various

trade names. CAIRE has operated under the trade names Air Antilles

Express and Air Guyane Express in accordance with its homeland

requirements. In fact, CAIRE’s Air Operator Certificate issued by the DGAC

expressly authorizes CAIRE to use the trade names “Air Guyane Express” and

“Air Antilles Express.” See Exhibit 1, attached. For its part, DOT only requires

that U.S. and foreign air carriers register the trade names they intend to use in

accordance with 14 C.F.R Part 215. CAIRE fully complied with this

requirement by including its two trade names in its DOT application.

Mr. Barder’s vague claims of “branding confusion,” non-compliance and public

confusion are wholly without merit.

6. CAIRE has not advertised the planned services and CAIRE’s website does not

list San Juan flights. Although CAIRE’s non-U.S. facing website briefly listed

flights, that is no longer the case, and no sales of San Juan flights have been

registered with the Company.

7. With respect to the energy information specified in 14 C.F.R. § 313.5(a),

CAIRE’s application for authority to conduct small aircraft operations between

points in the Caribbean will not involve a near-term net annual change in

aircraft fuel consumption exceeding 10 million gallons, meaning DOT approval

would not constitute a “major regulatory action” under the Energy Policy and
Response of CAIRE

Page 5

Conservation Act. No additional information or analysis is needed for the

Department to make a determination that approval of CAIRE’s application

would not constitute a major regulatory action.

8. Contrary to Mr. Barder’s assumption, CAIRE does not need to submit a Family

Assistance Plan under 49 U.S.C. § 41313. CAIRE proposes to conduct

operations in foreign air transportation using only small aircraft with a

maximum passenger capacity of less than 60 seats and, pursuant to DOT

Order 98-1-31, issued February 3, 1998, is exempt from the requirement to file

a Family Assistance Plan.2

9. CAIRE submits that Mr. Barder’s attempt to mislead the Department with

fallacious and unfounded claims constitutes an improper attempt to disrupt the

fair and orderly processing of CAIRE’s DOT application in violation of the

Department’s Rules of Conduct. 14 C.F.R. §§ 300.5 and 6. CAIRE believes

that Mr. Barder’s submission is a spurious effort to somehow influence a

pending private commercial dispute with CAIRE, which is currently being

litigated in France. Mr. Barder’s “Motion” should be summarily denied.

Mr. Barder has a history of filing improper Department submissions. In 2002,

he filed an objection to an application of Edelweiss Air, a Swiss airline, making

allegations about a commercial dispute. Mr. Barder subsequently withdrew

2 While not a substantive issue, Mr. Barder questions the adequacy of CAIRE’s service list.

CAIRE’s service list included what its representative believed to be the U.S. certificated air carriers

that were required to be served. The Department did not advise CAIRE of any additional service

requirements in accordance with 14 C.F.R. § 302.203(c) or 302.304(b)(5). Moreover, a notice

regarding CAIRE’s application was published in the Federal Register on December 3, 2013, inviting

interested persons to file comments. 78 Federal Register 72747, December 3, 2013.
Response of CAIRE

Page 6

his submission. If he continues his efforts to delay and impede the fair and

orderly processing of CAIRE’s application, CAIRE may seek sanctions under

14 C.F.R. § 300.20.

In conclusion, the Department should not countenance Mr. Barder’s

improper attempt to delay the processing of CAIRE’s routine application filed

under the U.S.-EU Reciprocal Recognition Procedures, nor should CAIRE be

required to submit additional information. Mr. Barder has provided no credible

information that calls into question the merits of CAIRE’s application. Any

additional unauthorized pleadings by Mr. Barder should be soundly rejected by the

Department, and CAIRE’s application should be granted without further delay.

Respectfully submitted,

______________________________

Robert E. Cohn

HOGAN LOVELLS US LLP

Counsel for Compagnie Aérienne

Inter Régionale Express

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Response of CAIRE was served this 6th

day of February, 2014, upon the following addressees:

atc@prw.net

serge.barder@gmail.com

howard.kass@aa.com

francis.heil@aa.com

sascha.vanderbellen@delta.com

dan.weiss@united.com

gfoss@seaborneairlines.com

ismael.bonilla@aerostarairports.com

paul.gretch@dot.gov

robert.finamore@dot.gov

brett.kruger@dot.gov

urskr@state.gov

Jonathan Echmalian