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Frequently Asked Questions
What discretion does the Governor have to deviate from OTAR?
It is for the Governor 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. 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 an equivalent level of safety is achieved.
The OTARs talk about the Governor. Do they really mean the Governor?
In most cases it is the regulator designated under the AN(OT)O for the particular purpose by the Governor of the Territory and so in practice it is either the DCA or ASSI. The exception to this is where there is a right of appeal to the Governor under Article 137 of the AN(OT)O where Governor does actually mean the Governor of the Territory.
Will the changes made to the AN(OT)O to make OTARs effective allow presently gazetted documents to remain effective in the overlap period?
Amendments to the AN(OT)O are intended to underpin the OTARs. However they have been designed as far as possible to allow also the use of existing Gazetted documents. That is one reason why we have not incorporated in the amendments to the Order direct references to OTARs but merely to "Governor's Requirements".
Can we get rid of the AN(OT)O and just have a Civil Aviation Act and OTARs?
No. The Civil Aviation Acts create an obligation on the part of the United Kingdom to give effect to the Convention on International Civil Aviation 1944 (the Chicago Convention). The ANO in the UK and the AN(OT)O in the Territories are the instruments of subordinate legislation that give effect to that statutory obligation and are made under the statutory powers given in the Civil Aviation Act(s). If one were to dispense with the AN(OT)O then all the legal obligations upon the civil aviation industry would either have to be embodied in (a) the Civil Aviation Acts or (b) the OTARs. The adoption of (a) is not acceptable as it would be contrary to legislative practice to incorporate into a Statute (Act) all of the legal obligations imposed on the citizen, not least because any future amendments would have to go through the whole statutory process and could take years to accomplish. The adoption of (b) would mean that in order to be enforceable the OTARs would have to meet all the requirements relating to Statutory Instruments imposed by the Statutory Instruments Act 1947. This means that they would become the equivalent of the AN(OT)O and have to be in the same form.
Are all definitions in OTAR Part 1?
The intention is that they will be. However many definitions derive from the legislation and will still need to remain in the AN(OT)O, but there should be no mismatch between the two.
Are there definitions in Part 1 that are different in other Parts?
In a few instances a term has a different meaning depending on the context and the Part in which it is used. For example validation has a specific meaning in relation to ATC licensing which is different to that when the term is used elsewhere. In such cases both (or all) definitions will be listed (with their applicability) in Part 1 and the context-specific definition repeated in the Parts concerned.
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.
Is a flight from one OT to another OT that diverts to a non-OT an international flight?
A flight from one OT to another via a planned stop in a third country (eg Anguilla-St Maarten-BVI) would be an international flight but it would not automatically become an international flight if the aircraft merely diverted to St Maarten for technical reasons.
Is a flight from an OT to an oil rig in international waters an international flight?
A flight from an OT to an off-shore oil rig is not an international flight if the rig is within the territorial waters of the OT concerned. Normally territorial waters would extend to 12 miles from the shoreline but can extend further under international treaty or by a claim of sovereignty. Normally, therefore, operations between an OT and an oil rig in international waters that do not pass through the airspace of another country will not be international.
If the rig were located in the undisputed territorial waters of another Contracting State then the flight would become an international one.
What are the Governors 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.