3000 NE 30th Place, Suite 107, Fort Lauderdale, FL 33306 USA

Ph. +1.954.763.4848 Fax +1.954.763.4240 info@aviation-professionals.com

Website: www.aviation-professionals.com

January 21, 2013

United States Department of Transportation (“DOT”)

1200 New Jersey Avenue, S.E.

Washington, D.C. 20590

United States of America (“USA”)

Re: Response to IBC Airways, Inc. (“Respondent”) in a letter to the DOT of January 

18, 2013 (the “IBC Objection”), regarding the Applications of Tortug’Air (DOTOST-2013-0003) and Cemair (DOT-OST-2013-0009) (collectively hereinafter the 

“Applicants’ Request for Exemption”) 

TO DOT & WHOM IT MAY CONCERN:

The Aviation Professionals Group, Inc. (“APG”) are the duly authorized aviation 

regulatory representatives of Tortug’Air S.A. (“Tortug”), located in the Republic of Haiti 

(“Haiti”); and CemAir (Pty) Ltd. (“Cemair”), located in the Republic of South Africa 

(“South Africa”) (collectively, the “Applicants”). The Applicants and APG are in receipt 

of the IBC Objection to Applicants’ Request for an Exemption to engage in the 

scheduled operation of flights to and from Cap Haitien International Airport, Haiti 

(“CAP”) and Fort Lauderdale, Florida, USA (the “CAP-FLL Flights”) pursuant to a wet 

lease between Tortug and Cemair, as detailed in the Applicants’ Request for 

Exemption.

The Respondent comingles purported DOT objections to the Applicants’ Request for 

Exemption with issues that may have been intended, in arguendo, to be proffered to the 

USA’s Federal Aviation Administration (“FAA”), and/or Haiti’s Office Nationale de 

L’Aviation Civile of Haiti (“OFNAC”), and/or the USA’s Transportation Security 

Administration (“TSA”), and/or the South Africa Civil Aviation Authority (“SACAA”), 

and/or the International Civil Aviation Organization (“ICAO”). In the second paragraph 

of the IBC Objection the Respondent claims standing relative to the Applicants’ Request 

for Exemption. Candidly, we are not sure if this is the case, in part because we are 

unsure of just who is objecting. Respondent holds FAA authority as an on demand air 

taxi, and while it mentions “Part 298” in the IBC Objection (probably referring to its 

insurance filings), this is somewhat disingenuous, in that the Respondent is not a 

“commuter airline” as defined by the DOT and the FAA. The affiliate of IBC Airways, 

Inc., IBC Travel Inc., doing business as IBC Air (“IBC Air”)(confusing, isn’t it) holds 

authority from the DOT to sell travel under DOT’s Part 380 public charter regulations 

(“IBC Public Charter Authority”). This letter is not the appropriate medium for 

challenging the international regulatory propriety of the Respondent for offering 
Response to IBC Airways DOT Objection

January 21, 2013

Page 2 of 9

scheduled international website sales of individual tickets as IBC Air, using IBC Airways 

as the provider, and whether OFNAC has properly been informed of the nature of this 

IBC Public Charter Authority as represented to the traveling public, including to the 

citizens of Haiti. We raise the issue now in this letter simply to ask DOT to reflect on 

this issue of Respondent’s “standing” to object to Applicants’ Request for Exemption.

APG is well acquainted with the historical practice of airlines in the USA objecting to 

foreign air carrier applications for service to the USA for competitive reasons in order to 

attempt to delay approval by the DOT of applications; although this practice has been 

largely found to be in disfavor in recent years. And we would have thought that an 

operator such as the Respondent, having enjoyed the historic benefits of providing 

service between the USA and Haiti, would have seen the further advantage of 

welcoming the first Haitian flag carrier from a country that USA policy strongly embraces 

for international development as a worthy competitor, to wit the Tortug CAP-FLL Flights. 

Ordinarily APG would simply refute the erroneous representations of the IBC Objection 

on a factual basis, and point out those that are inappropriate for DOT consideration. 

However, the inconsistencies, errors, mischaracterizations, regulatory 

misinterpretations, and libelous statements contained therein are so legion, that we find 

it necessary to employ some of the same rhetoric in this response; which response we 

will enumerate in the same fashion as the Respondent, and respond to each of the six 

(6) enumerated points made by “IBC Airways” (or “IBC Air”?), including the footnotes 

thereto, utilizing the same enumeration as Respondent, for ease of future reference: 

1. Respondent suggests that Cemair “may not have sufficient authority to operate 

the proposed flights”, and then specifically refers, within Cemair’s Operations 

Specifications to certain issues concerning “wet lease operations” and some 

vague footnoted references to internal matters of how the SACAA might engage 

in its technical oversight of the proposed operation. Respondent acknowledges 

that Cemair holds an Air Service License with the authority to operate 

international charter operations on a worldwide basis (the “Cemair Air Service 

License”). 

Respondent is obviously unaware of the DOT regulatory procedure whereby one 

is approved to conduct operations as detailed in the Applicants’ Request for 

Exemption, the first step of which procedure involves securing from the DOT

“economic” authority pursuant to 49 U.S.C. §40109 and §41302 for said 

operation, subsequent to which applicant then secures technical authority from 

the FAA pursuant to Title 14 of the Code of Federal Regulations (the “CFR’s”), at 

CFR Part 129 thereof (“Part 129 Approval”); nor is Respondent seemingly aware 

that Cemair’s submission of Ops Specs that include the proposed area of 

operation is a prerequisite for Part 129 Approval, but not for Applicants’ Request 

for an Exemption, which is the subject of this aspect of the IBC Objection. 

Further, Respondent also appears to be unaware that the Cemair Air Service 

License is the South African equivalent of the DOT’s economic authority for 

operation and, therefore, is sufficient for the issuance by the DOT of an 
Response to IBC Airways DOT Objection

January 21, 2013

Page 3 of 9

Exemption under 49 U.S.C. §40109, to operate the services proposed in 

Applicants’ Request for an Exemption. Cemair is in the process of the addition of 

the proposed area of operations to the Cemair Ops Specs, and will do so in 

conjunction with its application to the FAA for a Part 129 Approval.

Respondent’s suggestion that Cemair’s authority from the SACAA should include 

approval of the “wet lease operations now contemplated” demonstrates a 

complete lack of understanding of the stated policy of the DOT to consider 

Cemair’s operations pursuant to the CAP-FLL Flights as “charter” operations, 

only, thereby not requiring any type of approval of the wet lease by the SACAA. 

It is the duty of Tortug to obtain OFNAC regulatory approval of the wet lease, 

which OFNAC regulatory approval has already been obtained, and is included in 

the Tortug application for an exemption, DOT-OST-2013-0003.

Respondent’s footnoted suggestions that the modality of the SACAA’s safety 

oversight of Cemair’s operation of the CAP-FLL Flights be vetted as part of 

Applicants’ Request for an Exemption is, frankly, absurd. The FAA will consider 

regulatory oversight issues in the Part 129 Approval process, which process is 

routinely conducted by the FAA, with numerous aviation regulatory 

understandings and treaties in place between the USA and South Africa.

2. The succinct answer to the second objection of Respondent is that a current 

reciprocity letter from South Africa does exist in the referenced Docket, at 

http://www.regulations.gov/#!documentDetail;D=DOT-OST-2006-24269-0290, 

which reciprocity statement is sufficient for the authority requested in Applicants’ 

Request for DOT Authority. However, Respondent’s naivety demands a more 

thorough response, in that Respondent also attempts to invoke certain 

completely erroneous interpretations of DOT’s regulations, even suggesting a 

change to the regulations and policies of the DOT, as Respondent argues that 

somehow Cemair’s operation of charter flights pursuant to Tortug’s economic 

authority would not only demand some unspecified type of additional wet lease 

approval by the DOT on behalf of Cemair, but that Cemair and Tortug would 

somehow be required to produce a bond for said operations. Rather than 

challenge long-established DOT policy and regulations, perhaps Respondent 

should use the same fervor to prepare a defense of its use of IBC’s Public 

Charter Authority to operate scheduled international flights to Haiti. 

3. Cemair has not misrepresented its safety record, and Respondent’s libelous 

accusations thereof, likely gleaned from internet innuendo, resemble 

inappropriate sound bites more than the statements of fact that would be 

commensurate with an appropriate objection to an application such as 

Applicants’ Request for Exemption; specifically:

a. The accident referenced herein, which occurred on September 1, 2008, 

was not in an aircraft operated by Cemair but, rather, by Airserv 
Response to IBC Airways DOT Objection

January 21, 2013

Page 4 of 9

International; Cemair was the dry lessor of the aircraft, only. This has been 

definitively concluded by both the SACAA and the NTSB, as noted in 

Exhibit 1 and Exhibit 2 to this letter, which exhibits contain the SACAA 

accident report referenced in the IBC Objection, CA18/2/3/8544 (the 

“SACAA Report”), as well as an NTSB reference to the accident. How the 

Respondent interpreted said documents as proof that Cemair was the 

operator of the aircraft “on a wet lease basis” defies logic, and one can 

only conclude that Respondent’s motivation was simply to cast doubt on 

the “veracity of other elements of Cemair’s application”, which untruth 

actually has the opposite effect of casting greater doubt on the veracity of 

Respondent’s spurious accusations, contained throughout the IBC 

Objection.

However, for the avoidance of all doubt, note that in the SACAA Report, it 

specifically says that the aircraft “was on lease to an operator in the 

Democratic Republic of Congo”... and that ... “the operator provided a 

commercial service to the United Nations...” The operator of the aircraft, 

Airserv International, was the holder of the contract to provide a 

commercial service to the United Nations, was completely responsible for 

all operational aspects of the aircraft, and, as noted prior, Cemair was the 

lessor of the aircraft to that operator. 

Also note that the NTSB’s reference to the accident, attached as Exhibit 2, 

clearly also identifies the operator of the aircraft as Airserv International, 

not Cemair.

b. In a footnote to this IBC Objection point #3, the Respondent also draws 

attention to an accident that occurred on May 2, 2008, and again, utilizing 

only innuendo (“reportedly operated by other parties...”) attempts to cast

aspersion on the safety record of Cemair, even though the aircraft 

involved in this accident was in Kenyan registry, on a Kenyan Aircraft 

Operating Certificate (“AOC”) and dry-leased to the Kenyan AOC holder, 

only. Cemair had no involvement with or responsibility for the operations 

of said aircraft.

Therefore, Cemair reasserts that during the last 5 years it has not been involved 

in any safety of tariff violations or had any fatal accidents, in full compliance with 

the requirements of 14 C.F.R. §211.20(s).

4. In what is nothing more than a brazen attempt to disparage the reputation of 

Cemair, Respondent then acknowledges that the information it is about to relate 

does not comport with the regulatory requirements (occurred more than 13 years 

prior), yet offers up no justification for including such; so one can only conclude 

that the true intent of this is nothing more than a “hail Mary pass”; i.e., since 
Response to IBC Airways DOT Objection

January 21, 2013

Page 5 of 9

nothing that Respondent offers up in the entire IBC Objection is valid, the only 

tactic left to Respondent is a desperate smear campaign.

Further, while Respondent’s subpoints 1 through 7 contain certain grains of 

history (although MANY of the alleged facts of this case were vigorously denied 

and disputed with a plethora of contrary evidence), the allegations contained in 

subpoint 8 are patently false, libelous, and potentially the basis of a counteraction 

on the part of Cemair and Mr. van der Molen. The simple fact is that Miles van 

der Molen’s tenure at GJ Air ended prior to the accident. Period. Respondent’s 

failure to verify the facts of this situation prior to publishing the libelous 

accusations contained herein is inexcusable, and bespeaks much about the 

shoddy nature of Respondent’s research and practices.

5. Either Respondent has no knowledge of the regulations of Haiti, the TSA or 

ICAO, or Respondent simply doesn’t care that none of the regulatory guidance 

that it attempts to invoke in this point is correct. Simply put; a) OFNAC, which is 

Haiti’s Civil Aviation Authority, makes no distinction between 30 and 50 seat 

operations at CAP; and b) of the ten ICAO airport safety categories contained in 

ICAO Annex 14, the aircraft of IBC Airways is a category 4, and Cemair’s is 

category 5, and Respondent makes no suggestion about how CAP meets one 

category and does not meet the other; and c) while it is incumbent upon the 

Applicants to submit a TSA security plan, said TSA security plan is not a 

prerequisite to Applicants’ Request for an Exemption, but rather, is a prerequisite 

to the issuance of Cemair’s Part 129 Approval, and will therefore be submitted by 

Applicant to the TSA at the appropriate time in the process. One again wonders 

whether Respondent’s letter would have been more appropriately addressed 

elsewhere, in that Respondent once again attempts to create and force new 

regulations upon the DOT that would make “the fulfillment of security 

requirements... a predicate to any action by the Department.” Curiously, APG is 

mindful that IBC Air (not IBC Airways) has applied to the DOT for approval 

pursuant to its IBC Public Charter Authority to operate a Boeing 737-400 to CAP 

(an ICAO category 6 aircraft). One can only wonder about the hypocrisy of IBC 

Air (and/or IBC Airways).

6. The arguments in Respondent’s final enumerated point are obviated by 

Applicants submission as part of Applicants’ Request for an Exemption, a duly 

executed OST Form 4523. And naturally Tortug and Cemair will comply with any 

and all DOT consumer protections required by the DOT. To suggest otherwise is 

simply more “over the top” bombastic rhetoric from the Respondent (or is it IBC 

Air?). 

For any number of reasons we would encourage the Respondent to (i) notify DOT of its 

withdrawal of the IBC Objection; and (ii) notify all served parties, and parties to this 

letter, of said withdrawal of the IBC Objection; and (iii) notify OFNAC of said withdrawal. 

In the second paragraph of the IBC Objection the Respondent refers to a “level playing 
Response to IBC Airways DOT Objection

January 21, 2013

Page 6 of 9

field”. Respondent has been operating to and from Haiti long enough to know that the 

playing field for Haiti has not been level for a long time. Finally a true airline in Haiti, 

flying the flag of its country, has found a lawful and safe way to offer service between 

Haiti and the USA. For the Respondent to try to bite that hand is simply offensive and 

gratuitous. 

Respectfully submitted:

AVIATION PROFESSIONALS GROUP, INC.

(by and for Cemair and Tortug)

 

C.A. Southerland

President

The foregoing response to IBC Airways was served on the following parties on January 

21, 2013:

Jean Marc Flambert

Director General

Office Nationale de L’Aviation Civile Haiti

jmflambert@ofnac.aero

Olivier Jean

Tortug’Air

o.jean@tortugair.com

Miles van der Molen

CEO of Cemair

miles@cemair.co.za

Robert Wirick

American Airlines

robert.wirick@aa.com

John Richardson

Counsel for Amerijet

jrichardson@johnlrichardson.com
Response to IBC Airways DOT Objection

January 21, 2013

Page 7 of 9

Russel Pommer

Atlas Air

rpommer@atlasair.com

Alexander Van Der Bellen 

Sametta C. Barnett 

Delta Air Lines 

sascha.vanderbellen@delta.com

sametta.c.barnett@delta.com

Ranjit Seth 

Robert Foster 

Evergreen International Airlines 

ranjit.seth@evergreenairlines.com

robert.foster@evergreenairlines.com

G. Bailey Leopard 

Angeline Garbuzinski 

Federal Express Corporation 

gbleopard@fedex.com

anbird@fedex.com

Jonathan Hill 

J. Parker Erkmann 

Counsel for JetBlue Airways Corporation

jhill@dowlohnes.com

perkmann@dowlohnes.com

Mark Atwood

Counsel for Kalitta Air and Xtra Airways

matwood@cozen.com

James Tello

Counsel for Miami Air International

jamestello@earthlink.net

Malcolm L. Benge

Counsel for North American Airlines and World Airways

mlbenge@zsrlaw.com

Kevin Montgomery 

Peter Beckett 

Polar Air Cargo 

kevin.montgomery@polaraircargo.com

peter.beckett@polaraircargo.com
Response to IBC Airways DOT Objection

January 21, 2013

Page 8 of 9

Darrell Richardson

Silver Airways

drichardson@gosilver.com

John Fredericksen

Sun Country Airlines

john.fredericksen@suncountry.com

Joanne Young 

David Kirstein 

Counsel for Spirit Airlines 

jyoung@yklaw.com

dkirstein@yklaw.com

Dan Weiss

United Airlines

dan.weiss@united.com

Lorraine Halloway 

Gerald Murphy 

Counsel for United Airlines

lhalloway@crowell.com

gmurphy@crowell.com

Anita Mosner 

Jennifer Nowak 

Counsel for United Parcel Service 

anita.mosner@hklaw.com

jennifer.nowak@hklaw.com

Howard Kass 

Benjamin Slocum 

US Airways 

howard.kass@usairways.com

benjamin.slocum@usairways.com

Susan Kurland

DOT Assistant Secretary for Aviation and International Affairs

susan.kurland@dot.gov

Robert Finamore

DOT Division Chief, Foreign Air Carrier Licensing

Robert.finamore@dot.gov
Response to IBC Airways DOT Objection

January 21, 2013

Page 9 of 9

Todd Homan

DOT Director of Aviation Analysis

todd.homan@dot.gov

Barbara Hairston

DOT Supervisory Dockets Officer

barbara.hairston@dot.gov

John Allen

Director, FAA Flight Standards Service

john.allen@faa.gov

James R. Jelinski

Manager, Miami FAA International Field Office

james.r.jelinksi@faa.gov

Joaquin Ochoa

Miami FAA International Field Office

joaquin.ochoa@faa.gov

Wendell Albright

Director, State Department Office of Aviation Negotiations

albrightwi@state.gov

Brian C. Abbott

Department of Homeland Security - TSA

brian.abbott@tsa.dhs.gov

Richard A. Asper, J.D., Chairman

Aviation Professionals Group, Inc.

ricka@aviation-professionals.com

Airline Information Research

info@airlineinfo.com
 

CA 12-12a 23 FEBRUARY 2006 Page 1 of 2

Section/division Accident & Incident Investigation Division Form Number: CA 12-12a

AIRCRAFT ACCIDENT REPORT AND EXECUTIVE SUMMARY 

Reference: CA18/2/3/8544 

Aircraft Registration ZS-OLD Date of Accident 1 September 2008 Time of Accident 1405Z 

Type of Aircraft Beech 1900C (Aeroplane) Type of Operation Commercial 

Pilot-in-command Licence Type Commercial Age 58 Licence Valid Yes 

Pilot-in-command Flying Experience Total Flying Hours 2 031,2 Hours on Type Unknown 

Last point of departure Kisangani Aerodrome (Democratic Republic of the Congo) 

Next point of intended landing Bukavu Aerodrome (Democratic Republic of the Congo) 

Location of the accident site with reference to easily defined geographical points (GPS readings if possible)

7,8 nm Northwest of Bukavu aerodrome (GPS position: South 02° 13,19’ East 028° 42,75’ elevation 10 800 ft) 

Meteorological Information Thunderstorm activity prevailed in the area of the accident site. 

Number of people on board 2 + 15 No. of people injured 0 No. of people killed 2 + 15 

Synopsis 

The aircraft, a Beech 1900C, which was registered in South Africa as ZS-OLD, was on lease to an 

operator in the Democratic Republic of the Congo (DRC). The operator provided a commercial service 

to the United Nations (UN) in the DRC by transporting UN personnel and cargo to various destinations 

in the country and neighbouring states on a daily basis. 

On 1 September 2008 the aircraft departed from Kisangani aerodrome at approximately 1200Z with 2 

crew members and 15 passengers on board on an instrument flight rules (IFR) flight plan destined for 

Bukavu aerodrome, located in the east of the country. At 1400Z the crew of ZS-OLD established radio 

contact with the air traffic information service (ATIS) controller in the control tower at Bukavu, indicating 

that their estimated time of arrival (ETA) for Bukavu aerodrome was 1410Z and they were at flight level 

(FL) 210, 33 nm inbound. They were informed to obtain their descent clearance from Goma Control 

and to call back once released by Goma Control. At 1403Z Goma released the aircraft, which reported 

passing FL120. At 1406Z Bukavu tower called the aircraft, but there was no response. At 1415Z the 

tower at Bukavu sent an alert message to Kindu, Goma and Kisangani. The aircraft never arrived at its 

intended destination. An official search for the missing aircraft commenced the following morning and 

the wreckage was spotted from the air at 0538Z where it had hit mountainous terrain. All seventeen 

occupants had been fatally injured. 

 

Probable cause 

To be determined by the State of Occurrence as stipulated in ICAO Convention, Annex 13, Chapter 5, 

Paragraph 5.1 (The State of Occurrence shall institute an investigation into the circumstances of the 

accident/incident and be responsible for the conduct of the investigation). 

IARC Date Release Date 

EXHIBIT 1
EXHIBIT 2