FORT LAUDERDALE • 500 SW 34TH STREET • FORT LAUDERDALE, FLORIDA 33315 • TEL: (954) 848 2300 • FAX: (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 authority 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 are deficiencies and omissions in both applications which 

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 days 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 - including IBC Travel, Inc., which offers a 4x weekly program 

of flights between Fort Lauderdale (FLL) and Cap-Haitien (CAP) pursuant to a prospectus filed with the

Department. Accordingly, IBC has a direct interest in that a level playing field be maintained for services 

between Haiti and the U.S., including the CAP-FLL market. 

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

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

matter of concern is whether Cemair has sufficient authority from the South African CAA to operate flights 

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 Specifications issued to Cemair by the South African CAA, 

which appears to limit Cemair’s authorized international ‘”Area of operation” to “Africa and Middle East.” 

Moreover, even if Exhibit CE-8 is accurate, it has not been established that Cemair’s authority from the 

South African CAA includes the wet lease operations now contemplated. This matter should be resolved 

before the Department otherwise considers the pending applications.1

(2) Reciprocity between the U.S. and South Africa has not been demonstrated. A predicate 

to the Department’s authorization of a wet lease to a foreign carrier for operations between a third country 

and the U.S. is that there be reciprocity between the 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 currently has a 

restrictive aviation relationship with the United States and the proposed services are seventh-freedom

operations.2 Cemair has acknowledged that it must document reciprocity – pursuant to 14 C.F.R. § 

212.10(c) – as well as that a current reciprocity statement was not on file in docket DOT-OST-2006-24269 

 

1

 Additionally, both applications indicate that the aircraft will be based in Fort Lauderdale, but safety 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 Skies” 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 comity. 
FORT LAUDERDALE • 500 SW 34TH STREET • FORT LAUDERDALE, FLORIDA 33315 • TEL: (954) 848 2300 • FAX: (954) 848 2397

at the time that its application was filed. South Africa 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 seventhfreedom wet leases. The new statement regarding only charter flights should be insufficient; although wet 

leases are also addressed in Part 212, they are a significantly different type of operation, and IBC 

respectfully submits that they should not be understood to be encompassed in a general reference to 

“charters” in a reciprocity statement. As above, the applications should not receive consideration until this 

underlying matter has been resolved.3

 (3) Cemair appears to have misrepresented its safety record. Exhibit CE-15 simply states 

that: “Cemair has not been involved in any safety or tariff violations or had any fatal accidents in the 

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 disclose any fatal accidents in which it was involved –

appears to be a serious and deliberate omission, which should raise concerns about the veracity of other 

elements of Cemair’s application. Moreover, the Department previously has established that corporate 

dishonesty in filings submitted to the Department is a basis to deny authority to a carrier. See Order 

2008-4-42.4

(4) Cemair’s CEO had a role in operators that experienced fatal accidents. Although the 

disclosure requirements of Part 212 are limited to the applicants and to the past five years, IBC notes that 

Miles van der Molen – the current CEO of Cemair – previously had a senior role at two South African 

operators that experienced fatal accidents: 

1. During his tenure as CEO at Flightline Charter Services (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, section 1.17.1.6 states in part: “it is believed that 

the organisation’s balance between the goals of safety and profitability may have been 

inappropriate, and that the commercial success experienced by the organisation may at times 

have been achieved at the expense of insufficient attention paid to matters of operational 

supervision and safety.”

2. Section 1.17.2.3 of the report further states, in part: “In relation to the specific case of Flightline 

Charter Services these anomalies included issues of airworthiness and flight operations 

surveillance and in particular the fact that Flightline 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 carried 

out on 13 April 1999 by the Responsible person: Aircraft (also the owner and CEO) of the 

operator. At the date of the test flight the special 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 part: “The organisational factors which contributed to 

the occurrence of this accident are many. They include: ... The lack of an established ‘safety 

 

3

 Additionally, although the surety bond requirement for foreign air carriers included in Part 212 typically does not 

appear to have been invoked for wet leases, IBC respectfully suggests that, considering the financial difficulties in 

Haiti and the limited jurisdiction of the Department over the proposed arrangements, the Department consider 

requiring a bond in this case. The Department especially should do so if it takes the position – for the purpose of 

reciprocity statements – that a wet lease actually is encompassed within the overall term “charter”; in that case, all of 

the requirements of Part 212 likewise should be applicable to wet leases. 

4

 Additionally another aircraft owned by Cemair, although reportedly operated by other parties, experienced a fatal 

accident on May 2, 2008. See http://www.sudantribune.com/spip.php?article26976. 
FORT LAUDERDALE • 500 SW 34TH STREET • FORT LAUDERDALE, FLORIDA 33315 • TEL: (954) 848 2300 • FAX: (954) 848 2397

culture’ at this operator; [and a] low level of flight operations standards knowledge, experience 

and professional flight operations supervision at this operator.” 

5. Section 3.2.4 of the report further states in part: “The company’s lack of flight operations 

management experience, professional flight standards supervision and an operational safety 

management program are regarded as significant contributing factors.” 

6. Media reports regarding the court proceedings following 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 article also reported that: “the magistrate said Van der 

Molen, the owner and chief executive of the now closed-down Flightline Charter Services, 

falsified test flight documents of the newly purchased Piper Chieftain. Van der Molen was also 

negligent in allowing the overloading of the aircraft.” See http://www.iol.co.za/news/southafrica/crash-parents-find-solace-in-inquest-findings-1.86597. The South African CAA also issued 

a media release about the inquest and its finding of Van der Molen’s culpability, available at 

http://www.caa.co.za/press_files/2002/FINDINGS%20AND%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 Manager 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 states in part: “During an inspection of the 

operator’s aircraft at Eros Airport on 25 January 2001, 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 Certificate.” 

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 carefully scrutinize both the managerial fitness and overall 

safety of Cemair – and as may be necessary, coordinate 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 coordination 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 extended its runway to enable operations of aircraft with 

more than 30 seats; Tortug’Air and Cemair propose to utilize a 50-seat CRJ. But the security 

infrastructure and facilities at Cap-Haitien have not 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 larger aircraft to the U.S. has occurred. Likewise, it is not 

evident from the applications if Tortug’Air or Cemair will be responsible for air carrier security, and if a 

Part 1546 security plan and other security requirements are in progress. IBC recognizes that, by definition, 

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 Tortug’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 services, Tortug’Air would be required to comply with 

14 C.F.R. Part 250 for departures from the U.S. Additionally, section III provides that Tortug’Air may 

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 any approval of Tortug’Air’s application would be that it 
FORT LAUDERDALE • 500 SW 34TH STREET • FORT LAUDERDALE, FLORIDA 33315 • TEL: (954) 848 2300 • FAX: (954) 848 2397

bring itself into full compliance with Department consumer protection, disabilities, and other requirements 

before marketing or operating services in the U.S. 

WHEREFORE, IBC respectfully objects to the applications 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 submissions 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.com
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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

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
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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

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 Negotiations 

albrightwi@state.gov

Brian C. Abbott 

Department of Homeland Security - TSA 

brian.abbott@tsa.dhs.gov

Airline Information Research 

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