How does the aircraft register work and what responsibilities does it place on the Territory?

The Aircraft Register records the identity of the owner or operator of an aircraft and determines who is therefore responsible for ensuring the airworthiness of the aircraft.

Registering an aircraft in a Territory gives that aircraft the nationality of the Territory and that is reflected in the registration allocated. Acceptance of an aircraft on to its register places the responsibility upon that Territory for the issue of a Certificate of Airworthiness in respect of the aircraft and for the oversight of its continuing airworthiness. That means the Territory is responsible for the annual and periodical checks on the airworthiness of the aircraft and for ensuring that it is maintained in accordance with the approved maintenance schedule. This is a heavy responsibility and involves the commitment of significant resources.

What is the procedure if the Governor's office is approached by an organisation wishing to start up an airline in the Territory?

An organisation wishing to start an airline will have to obtain an air operator's certificate and meet all of the technical standards imposed in accordance with the AN(OT)O and the means of compliance that have been gazetted in the Territory. The means of compliance is likely to be the OTAR Parts relevant to aircraft operations. It will be necessary for the organisation to submit an application to the OTAA or to ASSI, whichever is designated for that purpose, together with a full exposition of the organisation's arrangements for the operation of an aircraft. This will all be examined by the OTAA or ASSI and will have to be found acceptable before the grant of a certificate can be considered. The process is likely to take several months.

What are charging schemes and how can they be introduced?

It is the Governor's responsibility under the AN(OT)O to publish Schemes of Charges for the provision of aeronautical services and for civil aviation regulatory activities. The level and scope of such charges should be set in agreement with the Government of the Territory.

Regulatory charges may include the issue of:

  • certificates of airworthiness
  • pilot licences
  • air traffic control unit approvals
  • air operator's certificates
  • approval of aircraft maintenance organisations

Service charges which in general relate to services provided by the main airport authority within the Territory may include:

  • landing fees
  • aircraft parking fees
  • air traffic services related fees

There are many political considerations to take into account when establishing Schemes of Charges and ASSI can provide advice and support if required. As a general guide, international standards recommend that the level of charges should be set at a level sufficient only to cover the cost of providing the service, including the cost of capital investment and provision for future investment.

The OTARs talk about the Governor. Do they really mean the Governor?

In most cases it is the regulator designated under article 153 of the AN(OT)O for the particular purpose by the Governor of the Territory and so in practice it is either the OTAA or ASSI. The exception to this is where there is a right of appeal to the Governor under Article 154 of the AN(OT)O where 'Governor' does actually mean the Governor of the Territory.

What discretion does the Governor have to deviate from an OTAR?

It is for the Governor (ie the designated regulator) to satisfy himself whether the obligations imposed in legislation, in respect of any of his functions of issuing licences, certificates, permits and approvals, have been met. The Governor has a complete discretion in this respect, consistent with his obligations under the Order. Therefore, whilst the OTARs constitute the means by which an applicant or holder of an aviation document will be able to satisfy him they are not the only means possible.

Can the Governor accept other means of compliance than that in an OTAR?

The Governor has complete discretion to accept an alternative means of compliance or to deviate otherwise from the OTARs provided that the applicant can demonstrate that an equivalent level of safety is achieved.

What are the Governor's Directions?

Under the AN(OT)O a Governor is able to give directions, or impose conditions, with regard to the exercise of any of his functions under the Order or the manner of operation of an aircraft or the exercise by any person of any of the privileges accorded to him, her or it. Failure to comply with Directions issued by the Governor, without reasonable excuse, means that the person to whom the Directions are given will be deemed to have contravened the provision(s) of the Order under which the Directions were given.

The Governor is also able to issue instructions regarding the manner of operation of an aircraft (article 41 of the AN(OT)O). These instructions are contained in OTAR Part 91 General Operating Instructions.

What are Foreign Operator Permissions and how do they work?

Foreign (Aircraft) Operator Permissions are issued to enable foreign air carriers to provide commercial air transport services to, from and sometimes within a Territory. The permits are required by Articles 135 and 137 of the Air Navigation (Overseas Territories) Order (AN(OT)O) and are issued locally by a person delegated by the Governor to do so in accordance with any guidance issued by the Department for Transport and in accordance with the various bilateral or other agreements signed by the UK with other States. Foreign Operator permits, required under Article 135, are not focussed upon safety but merely the right to undertake commercial activities within the Territories. Nevertheless, the Permit requires the air carrier to comply with the ICAO Annexes, and many of the safety related provisions of the AN(OT)O apply to foreign registered aircraft operating in Territory airspace. Foreign air operators may not operate services in a Territory unless they are in possession of such a permit.

Further details of this are found on the ASSI website under ‘Foreign Operator Permissions‘.

Foreign Operator Permissions, required under Article 137, are required for any operator (commercial or not) who wishes to carry out:

  • aerial photography
  • aerial survey
  • any other type of aerial work.

The AN(OT)O defines Aerial Work in Article 157 as “any purpose (other than commercial air transport) for which an aircraft is flown if valuable consideration is given or promised in respect of the flight or the purpose of the flight”. As for Foreign Operator Permissions (Article 135), ‘valuable consideration’ means, amongst other things, payment in cash or kind or a contribution to the running costs of the aircraft. It is worth noting that a Foreign Operator permission for Article 135, rather than for 137, is required for an aircraft carrying out aerial work if the aircraft carries passenger(s) (for example, a photographer) not employed by the aircraft operator as this is classified as a commercial air transport flight. There are no cases where the issue of a Foreign Operator permission, for both Articles 135 and 137, for the same flight is appropriate one case or the other will always apply.

Unlike Foreign Operator Permissions required under Article 135, a Permission required under Article 137 is granted by the Governor not the Secretary of State. The Designation of the Article 137 process is combined with that for Annex 6 Aircraft Operations.

Thus, if a local OTAA is designated for Annex 6, then it will process the applications and issue the permit. If ASSI is designated, then it will be responsible.

Any applications received by the Governor’s Office should be referred to the appropriate designated authority. Details of the application process are on the ASSI website.

In terms of regulation what is the difference between a domestic aerodrome and an international one?

All aerodromes handling international operations are required to be certificated. This means that they must meet, so far as is possible, the standards and specifications laid down in OTAR Part 139. It is also the case that at present purely domestic aerodromes that handle larger aircraft (ie those with 10 or more seats or those with a maximum take-off weight exceeding 15,000kg) or those accommodating flying training and testing of pilots should also be certificated.

There is also an option for an aerodrome to be certificated if it is deemed to be in the public interest.

The other major difference between international and domestic aerodromes will be in respect of the procedures for the handling of passengers and baggage. At purely domestic aerodromes there will no requirement for immigration and customs although passengers will still be subject to security checks.

Is a flight from one OT to another OT an international flight?

A flight from one OT to another is not an international flight for the purposes of traffic rights under the Chicago Convention 1944; the route (eg Anguilla-BVI) would be a cabotage route as both points served are within the territory of a single Contracting State, ie the UK.

A flight from the UK to an OT (eg London-Cayman) is not an international flight on the same basis as above. Again, it is a cabotage flight.

For the purposes of the Convention generally, however, such a flight may be classified as an international flight if the definition in article 96 of the Convention is adopted. Article 96 defines “international air service” as “an air service which passes through the airspace over the territory of more than one State”. However, that definition is conditioned by the fact that article 96 defines “air service” as being “any scheduled air service performed by aircraft for the public transport of passengers, mail or cargo”. Because of the reference in article 96 to “scheduled” the matter is not free from doubt with regard to air services generally. Some lawyers argue that any flight is international if it transits international airspace or the sovereign airspace of a third country.

For the purposes of the Warsaw Convention on liability of air carriers such a flight would not be an international one. The Warsaw Convention defines “international transportation” as “any transportation in which (according to the contract) the place of departure and the place of destination (whether or not there is a break in the transportation) are situated within the territories of two High Contracting Parties (States) or within the territory of a single State if there is an agreed stopping place within the territory of another State”.

Although from the point of view of some aspects of the Chicago Convention and for the purposes of the Warsaw Convention an OT-to-OT flight would not be international it may be considered international for other purposes of the Chicago Convention and for the purposes of security, customs and immigration controls.

The above interpretations should not affect the applicability of Departure Tax in an OT, even though in many states there are varying amounts payable depending upon whether the flight is an international one or a domestic one.

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