F ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE

, F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397 January 18, 2013

By Electronic Docket Filing

U.S. Department of Transportation 1200 New Jersey Avenue, S.E. Washington, DC 20590

RE: Applications of Tortug’Air (DOT-OST-2013-0003) and Cemair (DOT-OST-2013-0009)

Dear Sirs:

IBC Airways, Inc. (“IBC”) is in receipt of (a) the Application of Tortug’Air S.A. for an Exemption to Engage in Scheduled Air Transportation, and (b) the Application of Cemair (PTY) Ltd. for an Exemption and Statement of Authorization. Tortug’Air seeks au thority to operate services between Haiti and the U .S., pursuant to a wet lease with Cemair, for which the latter separately has sought authorization. IBC respectfully objects to both applications; there ar e deficiencies and omissions in both applications w hich necessitate that they be denied at this time. This answer is timely pursuant to 14 C.F.R. § 302.307, because it is being submitted within 15 calendar da ys of the filing date of both applications.

As background, IBC is a Part 135/Part 298 air taxi; its business includes acting as a direct air carrier for Part 380 public charter operators - inc luding IBC Travel, Inc., which offers a 4x weekly p rogram of flights between Fort Lauderdale (FLL) and Cap-Ha itien (CAP) pursuant to a prospectus filed with the Department. Accordingly, IBC has a direct interest in that a level playing field be maintained for ser vices between Haiti and the U.S., including the CAP-FLL m arket.

In regard to the applications, IBC has identified t he following matters of concern:

(1) Cemair may not have sufficient authority to ope rate the proposed flights. An initial

matter of concern is whether Cemair has sufficient authority from the South African CAA to operate fli ghts between Haiti and the U.S. For example, Exhibit CE- 8 to Cemair’s application asserts that the carrier has “Class II, Type N1” authority, which enables it to operate “non-scheduled, or charter” operations on a “Worldwide” basis, based upon an International Air Service License. But Exhibit TA-8 to Tortug’Air’s application provides a copy of the Operations Speci fications issued to Cemair by the South African CAA

, which appears to limit Cemair’s authorized internat ional ‘”Area of operation” to “Africa and Middle Ea st.” Moreover, even if Exhibit CE-8 is accurate, it has not been established that Cemair’s authority from t he

South African CAA includes the wet lease operations now contemplated. This matter should be resolved before the Department otherwise considers the pendi ng applications. 1

(2) Reciprocity between the U.S. and South Africa h as not been demonstrated. A predicate to the Department’s authorization of a wet lease to a foreign carrier for operations between a third c ountry and the U.S. is that there be reciprocity between t he two countries; i.e. , that a similar application by a U.S. carrier would be granted. See, e.g. , DOT Order 92-12-42. In this case, South Africa cu rrently has a restrictive aviation relationship with the United S tates and the proposed services are seventh-freedom operations. 2 Cemair has acknowledged that it must document reci procity – pursuant to 14 C.F.R. § 212.10(c) – as well as that a current reciprocity s tatement was not on file in docket DOT-OST-2006-242 69

1 Additionally, both applications indicate that the aircraft will be based in Fort Lauderdale, but safe ty oversight will be the responsibility of the South African CAA. See, e .g. , Exhibits CE-11 and TA-11. There is no indication how this will be achieved in practice; e.g. , the AMO certificate provided in both exhibits is issued to the address of a Cemair hangar in South Africa.

2 Similarly, Haiti has not established an “Open Skie s” relationship with the U.S.; indeed, there is no codified air transportation agreement between the U.S. and Haiti , and all services in the markets are based on comi ty.F ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE

, F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397

at the time that its application was filed. South A frica since has filed a new reciprocity statement; but it only refers to charter services. What is necessary in this case is demonstration of reciprocity for se venthfreedom wet leases. The new statement regarding onl y charter flights should be insufficient; although wet leases are also addressed in Part 212, they are a s ignificantly different type of operation, and IBC respectfully submits that they should not be unders tood to be encompassed in a general reference to “charters” in a reciprocity statement. As above, th e applications should not receive consideration unt il this underlying matter has been resolved. 3

(3) Cemair appears to have misrepresented its safe ty record. Exhibit CE-15 simply states that: “Cemair has not been involved in any safety o r tariff violations or had any fatal accidents in t he previous five (5) years.” But, according to media reports, and South African CAA Accident Report, no. CA18/2/3/8544, an aircraft operated by Cemair – on a wet-lease basis – crashed in the Democratic Republic of the Congo on September 1, 2008, killing all 17 passengers and crew aboard. See, e.g.

, http://news.bbc.co.uk/2/hi/africa/7593405.stm . That Cemair’s application did not identify this accident – despite the 14 C.F.R. § 211.20(s) obligation to dis close any fatal accidents in which it was involved

– appears to be a serious and deliberate omission, wh ich should raise concerns about the veracity of oth er elements of Cemair’s application. Moreover, the De partment previously has established that corporate dishonesty in filings submitted to the Department i s a basis to deny authority to a carrier. See Order

2008-4-42. 4

(4) Cemair’s CEO had a role in operators that exper ienced fatal accidents. Although the disclosure requirements of Part 212 are limited to the applicants and to the past five years, IBC note s that Miles van der Molen – the current CEO of Cemair – p reviously had a senior role at two South African operators that experienced fatal accidents:

1. During his tenure as CEO at Flightline Charter S ervices (1997-2000), the operator suffered an accident on December 6, 1999 involving a Piper PA31 -350, with 10 fatalities. The official South African CAA Accident Report, no. J10/2/7132, sectio n 1.17.1.6 states in part: “it is believed that the organisation’s balance between the goals of saf ety and profitability may have been inappropriate, and that the commercial success expe rienced by the organisation may at times have been achieved at the expense of insufficient a ttention paid to matters of operational supervision and safety.”

2. Section 1.17.2.3 of the report further states, i n part: “In relation to the specific case of Flight line

Charter Services these anomalies included issues of airworthiness and flight operations surveillance and in particular the fact that Flight line was not in possession of a current and valid

AOC at the date of the accident.”

3. Section 1.17.2.4 of the report further states in part: “The Flight Performance test flight was carr ied out on 13 April 1999 by the Responsible person: Air craft (also the owner and CEO) of the operator. At the date of the test flight the specia l flight permit had expired (5 Apr 1999), and while the pilot that flew the aircraft was rated on type, no evidence was found on the pilot’s CAA file that he was in possession of a test pilot rating.”

4. Section 2.3.4 of the report further states in pa rt: “The organisational factors which contributed t o the occurrence of this accident are many. They incl ude: ... The lack of an established ‘safety

3 Additionally, although the surety bond requirement for foreign air carriers included in Part 212 typi cally does not appear to have been invoked for wet leases, IBC res pectfully suggests that, considering the financial difficulties in Haiti and the limited jurisdiction of the Departmen t over the proposed arrangements, the Department co nsider requiring a bond in this case. The Department espec ially should do so if it takes the position – for t he purpose of reciprocity statements – that a wet lease actually is encompassed within the overall term “charter”; i n that case, all of the requirements of Part 212 likewise should be app licable to wet leases.

4 Additionally another aircraft owned by Cemair, alt hough reportedly operated by other parties, experie nced a fatal accident on May 2, 2008. See http://www.sudantribune.com/spip.php?article26976

.F ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE

, F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397 culture’ at this operator; [and a] low level of flight operations standards kn owledge, experience and professional flight operations supervision at t his operator.”

5. Section 3.2.4 of the report further states in pa rt: “The company’s lack of flight operations management experience, professional flight standard s supervision and an operational safety management program are regarded as significant cont ributing factors.”

6. Media reports regarding the court proceedings fo llowing the accident reported that: “magistrate P J du Plesis found that negligence by Miles Van der Molen, the owner of the Piper Chieftain, led to the death of the nine and their pilot.” The articl e also reported that: “the magistrate said Van der Molen, the owner and chief executive of the now clo sed-down Flightline Charter Services, falsified test flight documents of the newly purcha sed Piper Chieftain. Van der Molen was also negligent in allowing the overloading of the aircra ft.” See http://www.iol.co.za/news/southafrica/crash-parents-find-solace-in-inquest-finding s-1.86597 . The South African CAA also issued a media release about the inquest and its finding o f Van der Molen’s culpability, available at http://www.caa.co.za/press_files/2002/FINDINGS%20AN D%20RECOMMENDATIONS%20OF%2 0THE%20INQUEST_ZS%20OJY.htm

.

7. Subsequent to the accident discussed above, the South African CAA canceled Flightline’s AOC, due to its non-compliance with safety regulations, including the use of an unqualified pilot and an unqualified mechanic. See http://www.caa.co.za/press_files/2001/pr1003.html

.

8. Additionally, during his tenure as Operations Ma nager at GJ Air (2000-2001), the operator suffered an accident involving a Reims F406 with 3 fatalities. The South African CAA Preliminary Accident Report, no. A01-131/7426, section 1.17.3 s tates in part: “During an inspection of the operator’s aircraft at Eros Airport on 25 January 2 001, by the Namibian Authorities they also

calculated that the aircraft were overloaded. These incidents resulted in the suspension of G.J. Air’s AOC on 26 January 2001. ... Thus at the time of the accident on 3 November 2001 they were operating without a valid Operating Certificat e.”

Accordingly, to the extent not already addressed in section 3 of this letter, IBC urges the Department to look beyond the scope of the applications and caref ully scrutinize both the managerial fitness and ove rall safety of Cemair – and as may be necessary, coordin ate with FAA – to ensure the safety of U.S. consumers that would travel on aircraft operated by Cemair, if the pending applications were to be approved.

(5) The proposed services may require additional co ordination with TSA. As IBC is well aware, Haiti is a challenging environment in which to operate. In regard to the pending applications, the Cap-Haitien International Airport only recently ext ended its runway to enable operations of aircraft w ith more than 30 seats; Tortug’Air and Cemair propose t o utilize a 50-seat CRJ. But the security infrastructure and facilities at Cap-Haitien have n ot yet been expanded to allow regular scheduled operations for aircraft greater than 30 seats, and it is not evident whether any necessary TSA review of the airport facilities to permit the operation of l arger aircraft to the U.S. has occurred. Likewise, it is not evident from the applications if Tortug’Air or Cema ir will be responsible for air carrier security, an d if a Part 1546 security plan and other security requirem ents are in progress. IBC recognizes that, by defin ition, the status of these security requirements may be a confidential matter – but as above, the fulfillment of security requirements should be a predicate to any action by the Department.

(6) Tortug’Air does not currently comply with U.S. consumer protection requirements. The current contract of carriage made available by Tort ug’Air ( http://fdmsecure.com/tortug/tariffs.jsp ) does not comply with U.S. requirements. For example, section XXVI states that: “Tortug'Air does not provide denied boarding compensation.” For the proposed ser vices, Tortug’Air would be required to comply with 14 C.F.R. Part 250 for departures from the U.S. Ad ditionally, section III provides that Tortug’Air ma y require any and all passengers with disabilities to provide a medical certificate, which would violate 14 C.F.R. § 382.23. IBC assumes that a condition of an y approval of Tortug’Air’s application would be tha t itF ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE

, F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397

bring itself into full compliance with Department c onsumer protection, disabilities, and other require ments before marketing or operating services in the U.S.

WHEREFORE, IBC respectfully objects to the applicat ions of Tortug’Air and Cemair, which based

on deficiencies and omissions therein should not be granted at this time, and urges the Department to carefully scrutinize any further explanatory submis sions by the applicants.

Sincerely,

Joseph Hutchings Senior Vice President, IBC Airways, Inc.

cc:

Olivier Jean Tortug’Air o.jean@tortugair.com

Richard Asper

C.A. Southerland Aviation Professionals Group, Inc. ricka@aviation-professionals.com ca@aviation-professionals.com

Robert Wirick

American Airlines robert.wirick@aa.com

John Richardson Counsel for Amerijet jrichardson@johnlrichardson.com

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.comF ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE

, F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397

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 Airwa ys mlbenge@zsrlaw.com

Kevin Montgomery

Peter Beckett Polar Air Cargo kevin.montgomery@polaraircargo.com peter.beckett@polaraircargo.com

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.comF ORT L AUDERDALE • 500 SW 34 TH S TREET • F ORT L AUDERDALE

, F LORIDA 33315 • T EL : (954) 848 2300 • F AX : (954) 848 2397

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 Internatio nal Affairs susan.kurland@dot.gov

Robert Finamore DOT Division Chief, Foreign Air Carrier Licensing esta.rosenberg@dot.gov

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 Negot iations albrightwi@state.gov

Brian C. Abbott Department of Homeland Security - TSA brian.abbott@tsa.dhs.gov

Airline Information Research info@airlineinfo.com