AeroWesty From United States, joined Oct 2004, 15527 posts, RR: 65 Posted (3 years 4 months 4 days 21 hours ago) and read 2229 times:
For the past year or so, I've occasionally searched for the text of the Bermuda II Accord, the last bilateral agreement signed between the U.S. and the U.K. So far, I've been unsuccessful. I can find plenty of summaries and reviews, but no actual text of the agreement.
If I made a Freedom of Information Act request to obtain a copy, does anyone know which agency to start with? Dept. of State? Dept. of Commerce? Dept. of Transportation?
Your input and ideas would be appreciated. Thanks.
Simairlinenet From United States, joined Oct 2005, 423 posts, RR: 1 Reply 3, posted (3 years 4 months 4 days 20 hours ago) and read 2198 times:
Please post how you are able to find it. I tried going through the State Department website last month without any luck. One possibility might be to write to your senator(s) or representative, since it is a hot issue at the moment.
NateDAL From United States, joined Jan 2006, 408 posts, RR: 0 Reply 6, posted (3 years 4 months 4 days 20 hours ago) and read 2174 times:
How about I just post the whole thing?
1977 WL 181793 (U.S. Treaty), T.I.A.S. No. 8641, 28 U.S.T. 5367
United Kingdom Of Great Britain And Northern Ireland
Air Transport Services
Agreement signed at Bermuda July 23, 1977;
Entered into force July 23, 1977.
With exchange of letters.
And agreed minute
Signed at London June 22, 1977;
Entered into force June 22, 1977.
ARTICLE 1
Definitions
ARTICLE 2
Grant of Rights
ARTICLE 3
Designation and Authorization of Airlines
ARTICLE 4
Application of Laws
ARTICLE 5
Revocation or Suspension of Operating Authorization
ARTICLE 6
Airworthiness
ARTICLE 7
Aviation Security
ARTICLE 8
Commercial Operations
ARTICLE 9
Customs Duties
ARTICLE 10
User Charges
ARTICLE 11
Fair Competition
ARTICLE 12
Tariffs
ARTICLE 13
Commissions
ARTICLE 14
Charter Air Service
ARTICLE 15
Transitional Provisions
ARTICLE 16
Consultations
ARTICLE 17
Settlement of Disputes
ARTICLE 18
Amendment
ARTICLE 19
Termination
ARTICLE 20
Registration with ICAO
ARTICLE 21
Entry into Force
ANNEX 1 - Route Schedules
Section 1: Scheduled Combination Air Service Routes for the United States
Section 2: Scheduled All-Cargo Air Service Routes for the United States
Section 3: Scheduled Combination Air Service Routes for the United Kingdom
Section 4: Scheduled All-Cargo Air Service Routes for the United Kingdom
Section 5: Notes Applicable to All Route Schedules
Section 1: Scheduled Combination Air Service Routes for the United States
US Route 1: Atlantic Combination Air Services
US Route 2: Round the World Combination Air Service [FN9]
US Route 3: Pacific Combination Air Service
US Route 4: Bermuda Combination Air Service
US Route 5: Bermuda Combination Air Service - Beyond
US Route 6: Caribbean Combination Air Service
Section 2: Scheduled All-Cargo Air Service Routes for the United States
US Route 7: Atlantic All-Cargo Air Service
US Route 8: Pacific All-Cargo Air Service
US Route 9: Bermuda All-Cargo Air Service
US Route 10: Bermuda All-Cargo Air Service - Beyond
US Route 11: Caribbean All-Cargo Air Service
Section 3: Scheduled Combination Air Service Routes for the United Kingdom
UK Route 1: Atlantic Combination Air Service
UK Route 2: Atlantic Combination Air Service via Canada
UK Route 5: Atlantic Combination Air Service Beyond to Japan
UK Route 6: Pacific Combination Air Service
UK Route 7: Pacific Combination Air Service via Tarawa
UK Route 8: Bermuda Combination Air Service
UK Route 9: Caribbean Combination Air Service
Section 4: Scheduled All-Cargo Air Service Routes for the United Kingdom
UK Route 10: Atlantic All-Cargo Air Service
UK Route 12: Atlantic All-Cargo Air Service Beyond to Mexico
UK Route 13: Pacific All-Cargo Air Service
UK Route 14: Pacific All-Cargo Air Service via Tarawa
UK Route 15: Bermuda All-Cargo Air Service
UK Route 16: Caribbean All-Cargo Air Service
SECTION 5
NOTES APPLICABLE TO ALL ROUTES
ANNEX 2 - Capacity on the North Atlantic
ANNEX 3 - Tariffs
ANNEX 4 - Charter Air Service
[EXCHANGE OF LETTERS]
Article 8 (Commercial Operation)-Ground Handling
Article 9 (Customs Duties)
Article 10 (User Charges)
Article 12 (Tariffs)-North Atlantic Fare Investigation
Annex 1-Route Schedules
AGREED MINUTE
AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
CONCERNING AIR SERVICES
The Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland;
Resolved to provide safe, adequate and efficient international air transportation responsive to the present and future needs of the public and to the continued development of international commerce;
Desiring the continuing growth of adequate, economical and efficient air transportation by airlines at reasonable charges, without unjust discrimination or unfair or destructive competitive practices;
Resolved to provide a fair and equal opportunity for their designated airlines to compete in the provision of international air services;
Desiring to ensure the highest degree of safety and security in international air transportation;
Seeking to encourage the efficient use of available resources, including petroleum, and to minimize the impact of air services on the environment;
Believing that both scheduled and charter air transportation are important to the consumer interest and are essential elements of a healthy international air transport system;
Reaffirming their adherence to the Convention on International Civil Aviation opened for signature at Chicago on 7 December 1944; [FN1] and
Desiring to conclude a new agreement complementary to that Convention for the purpose of replacing the Final Act of the Civil Aviation Conference held at Bermuda, from 15 January to 11 February 1946, and the annexed Agreement between the Government of the United States of America and the Government of the United Kingdom relating to Air Services between their Respective Territories, as subsequently amended ("the 1946 Bermuda Agreement"); [FN2]
For the purposes of this Agreement unless otherwise stated, the term:
(a) "Aeronautical authorities" means, in the case of the United States, the Department of Transportation, the Civil Aeronautics Board, or their successor agencies; and in the case of the United Kingdom, the Secretary of State for Trade, the Civil Aviation Authority, or their successors;
(b) "Agreement" means this Agreement, its Annexes, and any amendments thereto;
(c) "Air service" means scheduled air service or charter air service or both, as the context requires, performed by aircraft for the public transport of passengers, cargo or mail, separately or in combination, for compensation;
(d) "Airport" means a landing area, terminals and related facilities used by aircraft;
(e) "All-cargo air service" means air service performed by aircraft on which cargo or mail (with ancillary attendants) is carried, separately or in combination but on which revenue passengers are not carried;
(f) "Combination air service" means air service performed by aircraft on which passengers are carried and on which cargo or mail may also be carried if authorized by the relevant national license or certificate;
(g) "Convention" means the Convention on International Civil Aviation, opened for signature at Chicago on 7 December 1944, and includes: (i) any amendment thereto which has entered into force under Article 94(a) thereof and has been ratified by both Contracting Parties; and (ii) any Annex or any amendment thereto adopted under Article 90 of that Convention, insofar as such amendment or Annex is at any given time effective for both Contracting Parties;
(h) "Designated airline" means an airline designated and authorized in accordance with Article 3 of this Agreement;
(i) "Gateway route segment" means that part of a route described in Annex 1 which lies between the point of last departure or first arrival served by a designated airline in its homeland and the point or points served by that airline in the territory of the other Contracting Party;
(j) "International air service" means an air service which passes through the air space over the territory of more than one State;
(k) "Revenue passenger" means a passenger paying 25 percent or more of the normal applicable fare;
(l) "Stop for non-traffic purposes" means a landing for any purpose other than taking on or discharging passengers, cargo or mail carried for compensation;
(m) "Tariff" means the price to be charged for the public transport of passengers, baggage and cargo (excluding mail) on scheduled air services including the conditions governing the availability or applicability of such price and the charges and conditions for services ancillary to such transport but excluding the commissions to be paid to air transportation intermediaries;
(n) "Territory" means the land areas under the sovereignty, jurisdiction, protection, or trusteeship of a Contracting Party, and the territorial waters adjacent thereto; and
(o) "User charge" means a charge made to airlines for the provision for aircraft, their crews and passengers of airport or air navigation property or facilities, including related services and facilities.
ARTICLE 2
Grant of Rights
(1) Each Contracting Party grants to the other Contracting Party the following rights for the conduct of international air services by its airlines:
(a) the right to fly across its territory without landing; and
(b) the right to make stops in its territory for non-traffic purposes.
(2) Each Contracting Party grants to the other Contracting Party the rights
specified in this Agreement for the purposes of operating scheduled international air services on the routes specified in Annex 1. Such services and routes are hereafter called "the agreed services" and "the specified routes" respectively. The airlines designated by each Contracting Party may make stops in the territory of the other Contracting Party at the points specified and to the extent specified for each route in Annex 1 for the purpose of taking on board and discharging passengers, cargo or mail, separately or in combination, in scheduled international air service.
(3) Each Contracting Party grants to the other Contracting Party the rights specified in Annex 4 for the purposes of operating charter international air services.
(4) Nothing in paragraphs (2) or (3) of this Article shall be deemed to confer on the airline or airlines of one Contracting Party the rights to take on board, in the territory of the other Contracting Party, passengers, cargo or mail carried for compensation and destined for another point in the territory of that other Contracting Party except to the extent such rights are authorized in Annex 1 or Annex 4.
(5) If because of armed conflict, political disturbances or developments, or special and unusual circumstances, a designated airline of one Contracting Party is unable to operate a service on its normal routing, the other Contracting Party shall use its best efforts to facilitate the continued
operation of such service through appropriate rearrangements of such routes, including the grant of rights for such time as may be necessary to facilitate viable operations.
ARTICLE 3
Designation and Authorization of Airlines
(1) (a) Each Contracting Party shall have the right to designate an airline or airlines for the purpose of operating the agreed services on each of the routes specified in Annex 1 and to withdraw or alter such designations. Such designations shall be made in writing and shall be transmitted to the other Contracting Party through diplomatic channels.
(b) A Contracting Party may request consultations with regard to the designation of an airline or airlines under subparagraph (a) of this paragraph. If, however, agreement is not reached within 60 days from the date of the designation, the designation shall be regarded as a proper designation under this Article.
(2) Notwithstanding paragraph (1) of this Article, for the purpose of operating the agreed combination air services on US Routes 1 and 2, and UK Routes 1, 2, 3, 4 and 5, each Contracting Party shall have the right to designate not more
than:
(a) two airlines on each of two gateway route segments of its own choosing;
(b) one airline on each gateway route segment other than those selected under subparagraph (a) of this paragraph, except that each Contacting Party may designate not more than:
(i) two airlines on any gateway route segment other than those selected under subparagraph (a) of this paragraph, provided: (A) the total on-board passenger traffic carried by the designated airlines of both Contracting Parties in scheduled air service on a gateway route segment exceeds 600,000 one-way revenue passengers in each of two consecutive twelve month periods; or (B) the total on-board passenger traffic carried by its designated airline in scheduled air service on the gateway route segment exceeds 450,000 one-way revenue passengers in each of two consecutive twelve month periods. For the purpose of this subparagraph, the revenue passenger levels specified must be reached for the first time after the entry into force of this Agreement; and
(ii) two airlines on any gateway route segment other than those selected under subparagraph (a) or permitted under subparagraph (b)(i) of this paragraph, where either the other Contracting Party has not made a designation three years after the right to operate that gateway route segment becomes effective or the airline designated by it does not by then operate (either nonstop or in combination with another gateway route segment) or operates fewer than 100
round trip combination flights within a twelve month period. An additional designation under this subparagraph shall continue in force notwithstanding subsequent regular operation by an airline of the other Contracting Party.
If coincident gateway route segments appear on more than one route, the limitations set forth in this paragraph apply to the coincident segments taken together. A Contracting Party making designations under this paragraph shall specify which subparagraph applies.
(3) Notwithstanding paragraph (1) of this Article, for the purpose of operating the agreed all-cargo air services on US Route 7 and on UK Routes 10, 11 and 12 (taken together), each Contracting Party shall have the right to designate not more than a total of three airlines, except that, if the airline or airlines designated by one Contracting Party are licensed or certificated by their own aeronautical authorities and authorized by the other Contracting Party to offer all-cargo air services on a gateway route segment on which the airline or airlines designated by the other Contracting Party are not licensed or certificated by their own aeronautical authorities to offer such services, that other Contracting Party may designate an additional airline on the relevant route or routes to operate all-cargo air services only on that gateway route segment, notwithstanding the fact that such designation will result in the designation of more than three airlines on the relevant route or routes.
(4) Notwithstanding paragraph (1) of this Article, a Contracting Party
receiving a designation of an airline which is authorized by that airline's own aeronautical authorities only to operate aircraft having a maximum passenger capacity of 30 seats or less and a maximum payload capacity of 7,500 pounds or less and which was not designated under the 1946 Bermuda Agreement may refuse to regard such designation as a proper designation under this Article if it would result in more than three such airlines or more than the number designated under the 1946 Bermuda Agreement (whichever is greater), operating at any point in the territory of the Contracting Party receiving the designation.
(5) If either Contracting Party wishes to designate an airline or airlines for the routes set forth in paragraphs (2) or (3) of this Article, in addition to the designations specifically permitted by those paragraphs, it shall notify the other Contracting Party. The second Contracting Party may either: (i) accept such further designation; or (ii) request consultations. After consultations the second Contracting Party may decline to accept the designation.
(6) On receipt of a designation made by one Contracting Party under the terms of paragraphs (1), (2) or (3) of this Article, or accepted under the terms of paragraph (5) of this Article, and on receipt of an application or applications from the airline so designated for operating authorizations and technical permissions in the form and manner prescribed for such applications, the other
Contracting Party shall grant the appropriate operating authorizations and technical permissions, provided:
(a) substantial ownership and effective control of that airline are vested in the Contracting Party designating the airline or in its nationals;
(b) the designated airline is qualified to meet the conditions prescribed under the laws and regulations normally applied to the operation of international air services by the Contracting Party considering the application or applications; and
(c) the other Contracting Party is maintaining and administering the standards set forth in Article 6 (Airworthiness).
If the aeronautical authorities of the Contracting Party considering the application or applications are not satisfied that these conditions are met at the end of a 90-day period from receipt of the application or applications from the designated airlines, either Contracting Party may request consultations, which shall be held within 30 days of the request.
(7) When an airline has been designated and authorized in accordance with the terms of this Article, it may operate the relevant agreed services on the specified routes in Annex 1, provided, however, that the airline complies with the applicable provisions of this Agreement.
ARTICLE 4
Application of Laws
(1) The laws and regulations of one Contracting Party relating to the admission to or departure from its territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within its territory, shall be applied to the aircraft of the airline or airlines designated by the other Contracting Party and shall be complied with by such aircraft upon entrance into or departure from and while within the territory of the first Contracting Party.
(2) The laws and regulations of one Contracting Party relating to the admission to or departure from its territory of passengers, crew, cargo or mail of aircraft, including regulations relating to entry, clearance, immigration, passports, customs and quarantine, shall be complied with by or on behalf of such passengers, crew, cargo or mail of the airlines of the other Contracting Party upon entrance into or departure from and while within the territory of the first Contracting Party.
ARTICLE 5
Revocation or Suspension of Operating Authorization
(1) Each Contracting Party shall have the right to revoke, suspend, limit or impose conditions on the operating authorizations or technical permissions of an airline designated by the other Contracting Party where:
(a) substantial ownership and effective control of that airline are not vested in the Contracting Party designating the airline or in nationals of such Contracting Party; or
(b) that airline has failed to comply with the laws or regulations of the first Contracting Party; or
(c) the other Contracting Party is not maintaining and administering safety standards as set forth in Article 6 (Airworthiness).
(2) Unless immediate revocation, suspension or imposition of the conditions mentioned in paragraph (1) of this Article is essential to prevent further noncompliance with subparagraphs (b) or (c) of paragraph (1) of this Article, such rights shall be exercised only after consultation with the other Contracting Party.
ARTICLE 6
Airworthiness
(1) Certificates of airworthiness, certificates of competency, and licenses issued or rendered valid by one Contracting Party, and still in force, shall be recognized as valid by the other Contracting Party for the purpose of operating the air services provided for in this Agreement, provided that the requirements under which such certificates or licenses were issued or rendered valid are equal to or above the minimum standards which may be established pursuant to the Convention. Each Contracting Party reserves the right, however, to refuse to recognize as valid for the purpose of flights above its own territory, certificates of competency and licenses granted to its own nationals by the other Contracting Party.
(2) The competent aeronautical authorities of each Contracting Party may request consultations concerning the safety and security standards and requirements maintained and administered by the other Contracting Party relating to aeronautical facilities, aircrew, aircraft, and the operation of the designated airlines. If, following such consultations, the competent aeronautical authorities of either Contracting Party find that the other Contracting Party does not effectively maintain and administer safety and security standards and requirements in these areas that are equal to or above the minimum standards which may be established pursuant to the Convention, they will notify the other Contracting Party of such findings and the steps considered necessary to bring the safety and security standards and
requirements of the other Contracting Party to standards at least equal to the minimum standards which may be established pursuant to the Convention, and the other Contracting Party shall take appropriate corrective action. Each Contracting Party reserves the right to withhold, revoke or limit, pursuant to Articles 2 (Grant of Rights), 3 (Designation and Authorization of Airlines), and 5 (Revocation or Suspension of Operating Authorization), the operating authorization or technical permission of an airline or airlines designated by the other Contracting Party, in the event the other Contracting Party does not take such appropriate action within a reasonable time.
ARTICLE 7
Aviation Security
The Contracting Parties reaffirm their grave concern about acts or threats against the security of aircraft, which jeopardize the safety of persons or property, adversely affect the operation of air services and undermine public confidence in the safety of civil aviation. The Contracting Parties agree to provide maximum aid to each other with a view to preventing hijackings and sabotage to aircraft, airports and air navigation facilities and threats to aviation security. They reaffirm their commitments under and shall have regard
to the provisions of the Convention on Offences and certain other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963, [FN3] the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at the Hague on 16 December 1970, [FN4] and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971. [FN5] The Contracting Parties shall also have regard to applicable aviation security provisions established by the International Civil Aviation Organization. When incidents or threats of hijacking or sabotage against aircraft, airports or air navigation facilities occur, the Contracting Parties shall assist each other by facilitating communications intended to terminate such incidents rapidly and safely. Each Contracting Party shall give sympathetic consideration to any request from the other for special security measures for its aircraft or passengers to meet a particular threat.
FN3. TIAS 6768; 20 UST 2941.
FN4. TIAS 7192; 22 UST 1641.
FN5. TIAS 7570; 24 UST 564.
[Footnotes added by the Department of State.]
End of Footnote(s).
ARTICLE 8
Commercial Operations
(1) The designated airline or airlines of one Contracting Party shall be entitled, in accordance with the laws and regulations relating to entry, residence and employment of the other Contracting Party, to bring in and maintain in the territory of the other Contracting Party those of their own managerial, technical, operational and other specialist staff who are required for the provision of air services.
(2) Each Contracting Party agrees to use its best efforts to ensure that the designated airlines of the other Contracting Party are offered the choice, subject to reasonable limitations which may be imposed by airport authorities, of providing their own services for ground handling operations; of having such operations performed entirely or in part by another airline, an organization controlled by another airline, or a servicing agent, as authorized by the airport authority; or of having such operations performed by the airport authority.
(3) Each Contracting Party grants to each designated airline of the other Contracting Party the right to engage in the sale of air transportation in its territory directly and, at the airline's discretion, through its agents. Each airline shall have the right to sell such transportation, and any person shall be free to purchase such transportation, in the currency of that territory or in freely convertible currencies of other countries.
(4) Each designated airline shall have the right to convert and remit to its country on demand local revenues in excess of sums locally disbursed. Conversion and remittance shall be permitted without restrictions at the rate of exchange applicable to current transactions which is in effect at the time such revenues are presented for conversion and remittance. Both Contracting Parties have accepted the obligations set out in Article VIII of the Articles of Agreement of the International Monetary Fund.
(5) Each Contracting Party shall use its best efforts to secure for the designated airlines of the other Contracting Party on a reciprocal basis an exemption from taxes, charges and fees imposed by State, regional and local authorities on the items listed in paragraphs (1) and (2) of Article 9 (Customs Duties), as well as from fuel through-put charges, in the circumstances described under those paragraphs, except to the extent that the charges are based on the actual cost of providing the service.
ARTICLE 9
Customs Duties
(1) Aircraft operated in international air services by the designated airlines of either Contracting Party, their regular equipment, fuel, lubricants, consumable technical supplies, spare parts including engines, and aircraft stores including but not limited to such items as food, beverages and tobacco, which are on board such aircraft, shall be relieved on the basis of reciprocity from all customs duties, national excise taxes, and similar national fees and charges not based on the cost of services provided, on arriving in the territory of the other Contracting Party, provided such equipment and supplies remain on board the aircraft.
(2) There shall also be relieved from the duties, fees and charges referred to in paragraph (1) of this Article, with the exception of charges based on the cost of the service provided:
(a) aircraft stores, introduced into or supplied in the territory of a Contracting Party, and taken on board, within reasonable limits, for use on outbound aircraft engaged in an international air service of a designated airline of the other Contracting Party;
(b) spare parts including engines introduced into the territory of a
Contracting Party for the maintenance or repair of aircraft used in an international air service of a designated airline of the other Contracting Party; and
(c) fuel, lubricants and consumable technical supplies introduced into or supplied in the territory of a Contracting Party for use in an aircraft engaged in an international air service of a designated airline of the other Contracting Party, even when these supplies are to be used on a part of the journey performed over the territory of the Contracting Party in which they are taken on board.
(3) Equipment and supplies referred to in paragraphs (1) and (2) of this Article may be required to be kept under the supervision or control of the appropriate authorities.
(4) The reliefs provided for by this Article shall also be available in situations where the designated airlines of one Contracting Party have entered into arrangements with another airline or airlines for the loan or transfer in the territory of the other Contracting Party of the items specified in paragraphs (1) and (2) of this Article provided such other airline or airlines similarly enjoy such reliefs from such other Contracting Party.
ARTICLE 10
User Charges
(1) Each Contracting Party shall use its best efforts to ensure that user charges imposed or permitted to be imposed by its competent charging authorities on the designated airlines of the other Contracting Party are just and reasonable. Such charges shall be considered just and reasonable if they are determined and imposed in accordance with the principles set forth in paragraphs (2) and (3) of this Article, and if they are equitably apportioned among categories of users.
(2) Neither Contracting Party shall impose or permit to be imposed on the designated airlines of the other Contracting Party user charges higher than those imposed on its own designated airlines operating similar international air services.
(3) User charges may reflect, but shall not exceed, the full cost to the competent charging authorities of providing appropriate airport and air navigation facilities and services, and may provide for a reasonable rate of return on assets, after depreciation. In the provision of facilities and services, the competent authorities shall have regard to such factors as efficiency, economy, environmental impact and safety of operation. User charges shall be based on sound economic principles and on the generally accepted accounting practices within the territory of the appropriate Contracting Party.
(4) Each Contracting Party shall encourage consultations between its competent charging authorities and airlines using the services and facilities, where practicable through the airlines' representative organizations. Reasonable notice should be given to users of any proposals for changes in user charges to enable them to express their views before changes are made.
(5) For the purposes of paragraph (4) of this Article, each Contracting Party shall use its best efforts to encourage the competent charging authorities and the airlines to exchange such information as may be necessary to permit an accurate review of the reasonableness of the charges in accordance with the principles set out in this Article.
(6) In the event that agreement is reached between the Contracting Parties that an existing user charge should be revised, the appropriate Contracting Party shall use its best efforts to put the revision into effect promptly.
ARTICLE 11
Fair Competition
(1) The designated airline or airlines of one Contracting Party shall have a fair and equal opportunity to compete with the designated airline or airlines of the other Contracting Party.
(2) The designated airline or airlines of one Contracting Party shall take into consideration the interests of the designated airline or airlines of the other Contracting Party so as not to affect unduly that airline's or those airlines' services on all or part of the same routes. In particular, when a designated airline of one Contracting Party proposes to inaugurate services on a gateway route segment already served by a designated airline or airlines of the other Contracting Party, the incumbent airline or airlines shall each refrain from increasing the frequency of their services to the extent and for the time necessary to ensure that the airline inaugurating service may fairly exercise its rights under paragraph (1) of this Article. Such obligation to refrain from increasing frequency shall not last longer than two years or beyond the point when the inaugurating airline matches the frequencies of any incumbent airline, whichever occurs first, and shall not apply if the services to be inaugurated are limited as to their capacity by the license or certificate granted by the designating Contracting Party.
(3) Services provided by a designated airline under this Agreement shall retain as their primary objective the provision of capacity adequate to the traffic demands between the country of which such airline is a national and the country of ultimate destination of the traffic. The right to embark or disembark on such services international traffic destined for and coming from third countries at a point or points on the routes specified in this Agreement shall
be exercised in accordance with the general principles of orderly development of international air transport to which both Contracting Parties subscribe and shall be subject to the general principle that capacity should be related to:
(a) the traffic requirements between the country of origin and the countries of ultimate destination of the traffic;
(b) the requirements of through airline operations; and
(c) the traffic requirements of the area through which the airline passes, after taking account of local and regional services.
(4) The frequency and capacity of services to be provided by the designated airlines of the Contracting Parties shall be closely related to the requirements of all categories of public demand for the carriage of passengers and cargo including mail in such a way as to provide adequate service to the public and to permit the reasonable development of routes and viable airline operations. Due regard shall be paid to efficiency of operation so that frequency and capacity are provided at levels appropriate to accommodate the traffic at load factors consistent with tariffs based on the criteria set forth in paragraph (2) of Article 12 (Tariffs).
(5) The Contracting Parties recognize that airline actions leading to excess capacity or to the underprovision of capacity can both run counter to the interests of the travelling public. Accordingly, in the particular case of combination air services on the North Atlantic routes specified in paragraph
(1) of Annex 2, they have agreed to establish the procedures set forth in Annex 2. With respect to other routes and services, if one Contracting Party believes that the operations of a designated airline or airlines of the other Contracting Party have been inconsistent with the principles set forth in this Article, it may request consultations pursuant to Article 16 (Consultations) for the purpose of reviewing the operations in question to determine whether they are in conformity with these principles. In such consultations there shall be taken into consideration the operations of all airlines serving the market in question and designated by the Contracting Party whose airline or airlines are under review. If the Contracting Parties conclude that the operations under review are not in conformity with the principles set forth in this Article, they may decide upon appropriate corrective or remedial measures, except that, where frequency or capacity limitations are already provided for a route specified in Annex 1, the Contracting Parties may not vary those limitations or impose additional limitations except by amendment of this Agreement.
(6) Neither Contracting Party shall unilaterally restrict the operations of the designated airlines of the other except according to the terms of this Agreement or by such uniform conditions as may be contemplated by the Convention.
ARTICLE 12
Tariffs
(1) Tariffs of the designated airlines of the Contracting Parties for carriage between their territories shall be established in accordance with the procedures set out in this Article.
(2) The tariffs charged by the designated airlines of one Contracting Party for public transport to or from the territory of the other Contracting Party shall be established at the lowest level consistent with a high standard of safety and an adequate return to efficient airlines operating on the agreed routes. Each tariff shall, to the extent feasible, be based on the costs of providing such service assuming reasonable load factors. Additional relevant factors shall include among others the need of the airline to meet competition from scheduled or charter air services, taking into account differences in cost and quality of service, and the prevention of unjust discrimination and undue preferences or advantages. To further the reasonable interests of users of air transport services, and to encourage the further development of civil aviation, individual airlines should be encouraged to initiate innovative, cost-based tariffs.
(3) The tariffs charged by the designated airlines of one Contracting Party for public transport between the territory of the other Contracting Party and the
territory of a third State shall be subject to the approval of the other Contracting Party and such third State; provided, however, that a Contracting Party shall not require a different tariff from the tariff of its own airlines for comparable service between the same points. The designated airlines of each Contracting Party shall file such tariffs with the other Contracting Party, in accordance with its requirements.
(4) Any tariff agreements with respect to public transport between the territories of the Contracting Parties concluded as a result of inter-carrier discussions, including those held under the traffic conference procedures of the International Air Transport Association, or any other association of international airlines, and involving the airlines of the Contracting Parties will be subject to the approval of the aeronautical authorities of those Contracting Parties, and may be disapproved at any time whether or not previously approved. The submission of such agreements is not the filing of a tariff for the purposes of the provisions of paragraph (5) of this Article. Such agreements shall be submitted to the aeronautical authorities of both Contracting Parties for approval at least 105 days before the proposed date of effectiveness, accompanied by such justification as each Contracting Party may require of its own designated airlines. The period of 105 days may be reduced with the consent of the aeronautical authorities of the Contracting Party with whom a filing is made. The aeronautical authorities of each Contracting Party
shall use their best efforts to approve or disapprove (in whole or in part) each agreement submitted in accordance with this paragraph on or before the 60th day after its submission. Each Contracting Party may require that tariffs reflecting agreements approved by it be filed and published in accordance with its laws.
(5) Any tariff of a designated airline of one Contracting Party for public transport between the territories of the Contracting Parties shall, if so required, be filed with the aeronautical authorities of the other Contracting Party at least 75 days prior to the proposed effective date unless the aeronautical authorities of that Contracting Party permit the filing to be made on shorter notice. Such tariff shall become effective unless action is taken to continue in force the existing tariff as provided in paragraph (7) of this Article.
(6) If the aeronautical authorities of one Contracting Party, on receipt of any filing referred to in paragraph (5) of this Article, are dissatisfied with the tariff proposed or desire to discuss the tariff with the other Contracting Party, the first Contracting Party shall so notify the other Contracting Party through diplomatic channels within 30 days of the filing of such tariff, but in no event less than 15 days prior to the proposed effective date of such tariff. The Contracting Party receiving the notification may request consultations and, if so requested, such consultations shall be held at the earliest possible date
for the purpose of attempting to reach agreement on the appropriate tariff. If notification of dissatisfaction is not given as provided in this paragraph, the tariff shall be deemed to be approved by the aeronautical authorities of the Contracting Party receiving the filing and shall become effective on the proposed date.
(7) If agreement is reached on the appropriate tariff under paragraph (6) of this Article, each Contracting Party shall exercise its best efforts to put such tariff into effect. If an agreement is not reached prior to the proposed effective date of the tariff, or if consultations are not requested, the aeronautical authorities of the Contracting Party expressing dissatisfaction with that tariff may take action to continue in force the existing tariffs beyond the date on which they would otherwise have expired at the levels and under the conditions (including seasonal variations) set forth therein. In this event the other Contracting Party shall similarly take any action necessary to continue the existing tariffs in effect. In no circumstances, however, shall a Contracting Party require a different tariff from the tariff of its own designated airlines for comparable service between the same points.
(8) The aeronautical authorities of each Contracting Party shall exercise their best efforts to ensure that the designated airlines conform to the agreed tariffs filed with the aeronautical authorities of the Contracting Parties, and that no airline rebates any portion of such tariffs by any means, directly or
indirectly.
(9) In order to avoid tariff disputes to the greatest extent possible:
(a) a continuing Tariff Working Group shall be established to make recommendations on tariff-making standards, as provided in Annex 3;
(b) the aeronautical authorities will keep one another informed of such guidance as they may give to their own airlines in advance of or during traffic conferences of the International Air Transport Association; and
(c) during the period that the aeronautical authorities of either Contracting Party have agreements under consideration pursuant to paragraph (4) of this Article, the Contracting Parties may exchange views and recommendations, orally or in writing. Such views and recommendations shall, if requested by either Contracting Party, be presented to the aeronautical authorities of the other Contracting Party, who will take them into account in reaching their decision.
ARTICLE 13
Commissions
(1) The airlines of each Contracting Party may be required to file with the aeronautical authorities of both Contracting Parties the level or levels of commissions and all other forms of compensation to be paid or provided by such
airline in any manner or by any device, directly or indirectly, to or for the benefit of any person (other than its own bona fide employees) for the sale of air transportation between the territories of the Contracting Parties. The aeronautical authorities of each Contracting Party shall exercise their best efforts to ensure that the commissions and compensation paid by the airlines of each Contracting Party conform to the level or levels of commissions and compensation filed with the aeronautical authorities.
(2) The level of commissions and other forms of compensation paid with respect to the sale, within the territory of a Contracting Party, of air transportation, shall be subject to the laws and regulations of such Contracting Party, which shall be applied in a nondiscriminatory fashion.
ARTICLE 14
Charter Air Service
(1) The Contracting Parties recognize the need to further the maintenance and development, where a substantial demand exists or may be expected, of a viable network of scheduled air services, consistently and readily available, which caters for all segments of demand and particularly for those needing a wide and flexible range of air services.
(2) The Contracting Parties also recognize the substantial and growing demand from that section of the travelling public which is price rather than time sensitive, for air services at the lowest possible level of fares. The Contracting Parties, therefore, taking into account the relationship of scheduled and charter air services and the need for a total air service system, shall further the maintenance and development of efficient and economic charter air services so as to meet that demand.
(3) The Contracting Parties shall therefore apply the provisions of Annex 4 to charter air services between their territories.
ARTICLE 15
Transitional Provisions
(1) Designation. On the entry into force of this Agreement, and until 1 November 1977, all designations and authorizations in effect pursuant to the 1946 Bermuda Agreement shall remain in effect. Additional designations shall be subject to the provisions of Article 3 (Designation and Authorization of Airlines) of this Agreement. By 1 November 1977, each Contracting Party shall indicate to the other all the initial designations applicable under this Agreement. Nothwithstanding the provisions of Article 3, until 1 November 1977:
(a) the United States shall be entitled to retain two designated airlines to operate combination air services on each of three gateway route segments on US Routes 1 and 2, taken together; and
(b) the United Kingdom shall be entitled to retain three designated airlines to operate combination air services on one gateway route segment on UK Routes 1, 2, 3, 4 and 5, taken together.
(2) Capacity. Notwithstanding the provisions of Annex 2, as regards the winter traffic season of 1977/78 the following procedures shall apply:
Paragraph (3): Airlines shall file schedules not later than 120 days prior to the winter traffic season, instead of 180 days.
Paragraph (3): Airlines shall refile amendments not later than 105 days prior to the winter traffic season, instead of 165 days.
Paragraph (4): A Contracting Party's notice of inconsistency shall be given within 90 days, instead of 150 days.
Paragraph (5): If requested, consultations shall begin not later than 75 days prior to the winter traffic season, instead of 90 days.
Paragraph (6): If agreement on capacity to be operated is not achieved, paragraph (6) procedures shall apply within 60 days prior to the winter traffic season, instead of 75 days.
(3) Tariffs. All tariffs filed to become effective on or after 1 November 1977, and all agreements filed to become effective on or after 1 January 1978 shall
be subject to the provisions of Article 12 (Tariffs). Agreements filed to become effective prior to 1 January 1978 shall be subject to the provisions of Article 12 to the greatest extent feasible. Tariffs filed to become effective prior to 1 November 1977 shall be subject to the provisions of the 1946 Bermuda Agreement, and all tariffs in effect under the 1946 Bermuda Agreement shall continue in force, but either Contracting Party may notify the other Contracting Party of its dissatisfaction with any such tariffs, and the procedures set forth in this Agreement shall then apply.
ARTICLE 16
Consultations
Either Contracting Party may at any time request consultations on the implementation, interpretation, application or amendment of this Agreement or compliance with this Agreement. Such consultations shall begin within a period of 60 days from the date the other Contracting Party receives the request, unless otherwise agreed by the Contracting Parties.
ARTICLE 17
Settlement of Disputes
(1) Any dispute arising under this Agreement, other than disputes where self-executing mechanisms are provided in Article 12 (Tariffs) and Annex 2, which is not resolved by a first round of formal consultations, may be referred by agreement of the Contracting Parties for decision to some person or body. If the Contracting Parties do not so agree, the dispute shall at the request of either Contracting Party be submitted to arbitration in accordance with the procedures set forth below.
(2) Arbitration shall be by a tribunal of three arbitrators to be constituted as follows:
(a) within 30 days after the receipt of a request for arbitration, each Contracting Party shall name one arbitrator. Within 60 days after these two arbitrators have been nominated, they shall by agreement appoint a third arbitrator, who shall act as President of the arbitral tribunal;
(b) if either Contracting Party fails to name an arbitrator, or if the third arbitrator is not appointed in accordance with subparagraph (a) of this paragraph, either Contracting Party may request the President of the International Court of Justice to appoint the necessary arbitrator or arbitrators within 30 days. If the President is of the same nationality as one of the Parties, the most senior Vice-President who is not disqualified on that
ground shall make the appointment.
(3) Except as otherwise agreed by the Contracting Parties, the arbitral tribunal shall determine the limits of its jurisdiction in accordance with this Agreement, and shall establish its own procedure. At the direction of the tribunal or at the request of either of the Contracting Parties, a conference to determine the precise issues to be arbitrated and the specific procedures to be followed shall be held no later than 15 days after the tribunal is fully constituted.
(4) Except as otherwise agreed by the Contracting Parties or prescribed by the tribunal, each Party shall submit a memorandum within 45 days of the time the tribunal is fully constituted. Replies shall be due 60 days later. The tribunal shall hold a hearing at the request of either Party or at its discretion within 15 days after replies are due.
(5) The tribunal shall attempt to render a written decision within 30 days after completion of the hearing or, if no hearing is held, after the date both replies are submitted, whichever is sooner. The decision of the majority of the tribunal shall prevail.
(6) The Contracting Parties may submit requests for clarification of the decision within 15 days after it is rendered and any clarification given shall be issued within 15 days of such request.
(7) Each Contracting Party shall, consistent with its national law, give full
effect to any decision or award of the arbitral tribunal. In the event that one Contracting Party does not give effect to any decision or award, the other Contracting Party may take such proportionate steps as may be appropriate.
(8) The expenses of the arbitral tribunal, including the fees and expenses of the arbitrators, shall be shared equally by the Contracting Parties. Any expenses incurred by the President of the International Court of Justice in connection with the procedures of paragraph (2)(b) of this Article shall be considered to be part of the expenses of the arbitral tribunal.
ARTICLE 18
Amendment
Any amendments or modifications of this Agreement agreed by the Contracting Parties shall come into effect when confirmed by an Exchange of Notes.
ARTICLE 19
Termination
Either Contracting Party may at any time give notice in writing to the other
Contracting Party of its decision to terminate this Agreement. Such notice shall be sent simultaneously to the International Civil Aviation Organization. This Agreement shall terminate at midnight (at the place of receipt of the notice) immediately before the first anniversary of the date of receipt of the notice by the other Contracting Party, unless the notice is withdrawn by agreement before the end of this period.
ARTICLE 20
Registration with ICAO
This Agreement and all amendments thereto shall be registered with the International Civil Aviation Organization.
ARTICLE 21
Entry into Force
This Agreement shall enter into force on the date of signature.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed the present Agreement.
DONE in duplicate at Bermuda this 23rd day of July, Nineteen Hundred and Seventy-Seven.
FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:
(Signature)
Brock Adams
(Signature)
Alan S. Boyd
FOR THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND:
(Signature)
Edmund Dell
(Signature)
W. Patrick Shovelton
ANNEX 1 - Route Schedules
Section 1: Scheduled Combination Air Service Routes for the United States
1. Atlantic Combination Air Service
2. Round the World Combination Air Service
3. Pacific Combination Air Service
4. Bermuda Combination Air Service
5. Bermuda Combination Air Service - Beyond
6. Caribbean Combination Air Service
Section 2: Scheduled All-Cargo Air Service Routes for the United States
7. Atlantic All-Cargo Air Service
8. Pacific All-Cargo Air Service
9. Bermuda All-Cargo Air Service
10. Bermuda All Cargo Air Service - Beyond
11. Caribbean All-Cargo Air Service
Section 3: Scheduled Combination Air Service Routes for the United Kingdom
1. Atlantic Combination Air Service
2. Atlantic Combination Air Service via Canada
3. Atlantic Combination Air Service Beyond to Mexico City
4. Atlantic Combination Air Service Beyond to South America
5. Atlantic Combination Air Service Beyond to Japan
6. Pacific Combination Air Service
7. Pacific Combination Air Service via Tarawa
8. Bermuda Combination Air Service
9. Caribbean Combination Air Service
Section 4: Scheduled All-Cargo Air Service Routes for the United Kingdom
10. Atlantic All-Cargo Air Service
11. Atlantic All-Cargo Air Service Beyond to South America
12. Atlantic All-Cargo Air Service Beyond to Mexico
13. Pacific All-Cargo Air Service
14. Pacific All-Cargo Air Service via Tarawa
15. Bermuda All-Cargo Air Service
16. Caribbean All-Cargo Air Service
Section 5: Notes Applicable to All Route Schedules
Section 1: Scheduled Combination Air Service Routes for the United States
US Route 1: Atlantic Combination Air Services
(A) (B) (C) (D)
US Gateway Points Intermediate Points in UK Points Beyond
BCAL From United Kingdom, joined Jun 2004, 3257 posts, RR: 26 Reply 9, posted (3 years 4 months 4 days 20 hours ago) and read 2157 times:
Quoting AeroWesty (Reply 2): Is the procedure fairly straightforward to make a request by a non-U.K. national?
AFAIK there should be no problems in requesting any published document from The Stationery Office by a non-UK resident, provided you pay for both the document, postage & packaging!
AeroWesty From United States, joined Oct 2004, 15527 posts, RR: 65 Reply 11, posted (3 years 4 months 4 days 20 hours ago) and read 2123 times:
Quoting NateDAL (Reply 10): I just searched Westlaw. It took two minutes.
Well that's very handy. I wonder if they have the U.S.-Japan bilateral that was renegotiated in 1998.
Quoting NateDAL (Reply 10): If someone wants to host with properly formatted columns, I can e-mail you a Word document.
I'm actually thinking of doing that at some point (maybe sooner than later now that I know this is available). I'd appreciate a copy in Word, just add @aol.com to my user name here.
NateDAL From United States, joined Jan 2006, 408 posts, RR: 0 Reply 12, posted (3 years 4 months 4 days 19 hours ago) and read 2108 times:
State Dept. No. 98-78, 1998 WL 320120 (Treaty)
United States of America
Japan
Agreement Between the United States and Japan Relating to and Amending
the Civil Air Transport Agreement of Aug. 11, 1952, As Amended, With Memorandum
of Understanding
Entered into force April 20, 1998
Effected by exchange of notes at Washington Apr. 20, 1998
MEMORANDUM OF UNDERSTANDING
Part I. COMBINATION SERVICES
A. INCUMBENT COMBINATION AIRLINES
1. Rights of Incumbents
2. Formulae
(a) Formulae Applicable to Fifth Freedom Operations of U.S. Airlines
(i) U.S. Airline Operations to and from IATA Regions TC-1 (the Americas) and TC-3 (Asia) [FN3]
Pax-miles (BC) <= pax-miles (AB) + pax-miles (AC);
and
Pax-miles (AC) >= 25% pax-miles (BC)
(ii) Definitions for U.S. Airline Operations to and from Asia/Americas
(iii) U.S. Airline Fifth Freedom Operations to and from IATA Region TC-2 (Europe/Africa)
Pax-miles (BC) <= pax-miles (AC)
(iv) Definitions for U.S. Airline Operations to and from Europe/Africa
(b) Formulae Applicable to Fifth Freedom Operations of Japanese Airlines
(i) Japanese Airline Operations to and from IATA Regions TC-1 (the Americas) and TC-3 (Asia)
Pax-miles (BC) <= pax-miles (AB) + pax-miles (AC);
and
Pax-miles (AC) >= 25% pax-miles (BC)
(ii) Definitions for Japanese Airline Operations to and from Asia/Americas
(iii) Japanese Airline Fifth Freedom Operations to and from Europe/Africa
Pax-miles (BC) <= pax-miles (AC)
(iv) Definitions for Japanese Airline Operations to and from Europe/Africa
B. NON-INCUMBENT COMBINATION AIRLINES
1. Designations
2. Non-Restricted Frequencies
3. Restricted Frequencies
4. Reallocation of Frequencies
5. Right to Switch Points
6. Right to Substitute Airlines
7. Guam/Saipan - Japan Routes
Part II. ALL-CARGO SERVICES
A. INCUMBENT ALL-CARGO AIRLINES
1. The Japanese Incumbent All-Cargo Airlines
2. The U.S. Incumbent All-Cargo Airlines
B. NON-INCUMBENT ALL-CARGO AIRLINES
1. New Non-Incumbent All-Cargo Airlines Designated by Japan
2. Non-Incumbent All-Cargo Airlines Designated by the United States under the Prior Agreements
3. Additional All-Cargo Entrants for Japan and the United States
4. Provisions Applicable to All-Cargo Airlines Designated by Japan and the United States
Part III. CHARTER SERVICES
A. EQUALIZATION OF CHARTER FREQUENCIES
B. EXPANSION OF CHARTER OPPORTUNITIES
C. FREIGHT FORWARDER CHARTERS
D. LEASING ARRANGEMENTS
Part IV. COOPERATIVE MARKETING ARRANGEMENTS FOR COMBINATION AND ALL-CARGO SERVICES
A. OPERATION OF COOPERATIVE MARKETING ARRANGEMENTS - REQUIREMENTS FOR THE OPERATING AIRLINE
B. OPERATION OF COOPERATIVE MARKETING ARRANGEMENTS - REQUIREMENTS FOR THE NON-OPERATING AIRLINE
C. COUNTING CAPACITY OR FREQUENCIES
D. CODESHARE ONLY AUTHORITY FOR NON-INCUMBENT COMBINATION AND NON-INCUMBENT ALL-CARGO AIRLINES TO HOLD OUT SERVICES UNDER CODESHARE ARRANGEMENTS ON ROUTES FOR WHICH THEY LACK OPERATING AUTHORITY
E. LIMITATIONS ON SAME COUNTRY AIRLINE CODESHARING
Category A and Category B Airlines (for combination services)
Part V. CHANGE OF GAUGE
A. FOR COMBINATION SERVICES
B. FOR ALL-CARGO SERVICES
Part VI. OPERATIONAL FLEXIBILITY
Part VII. PRICING AND DISTRIBUTION
Part VIII. FUTURE NEGOTIATIONS
Part IX. ADDITIONAL OPPORTUNITIES FOR COMBINATION SERVICES
A. NEW FREQUENCIES FOR NON-INCUMBENT COMBINATION AIRLINES
B. CONVERSION OF THE FORTY-TWO (42) RESTRICTED FREQUENCIES FOR NON-INCUMBENT COMBINATION AIRLINES
Part X. PROCEDURES CONCERNING THE APPLICATION OF ARTICLES 10,
11, AND 12 OF THE 1952 AGREEMENT WITH RESPECT TO CAPACITY,
FREQUENCY, AND TRAFFIC COMPOSITION
A. GENERAL PROCEDURES
B. PROCEDURES APPLICABLE TO PASSENGER SERVICES ON FIFTH FREEDOM OPERATIONS TO AND FROM EUROPE/AFRICA
C. TERMS APPLICABLE TO ALL OPERATIONS
Part XI. RELATIONSHIP TO OTHER PROVISIONS AND AGREEMENTS
APPENDIX
April 20, 1998
His Excellency
Kunihiko Saito,
Ambassador of Japan.
Excellency:
I have the honor to acknowledge the receipt of Your Excellency's Note of today's date, which reads as follows:
"I have the honor to refer to the recent consultations on the Civil Air Transport Agreement between Japan and the United States of America signed at Tokyo, on August 11, 1952, as amended (hereinafter referred to as the "1952 Agreement"). I have further the honor to propose, on behalf of the Government
of Japan, that the provisions contained in the Memorandum of Understanding signed in Washington, on March 14, 1998, attached hereto, which were negotiated with a view to ensuring the implementation of the 1952 Agreement in a manner appropriate to the Japan-U.S. aviation relationship, shall be implemented and that, with respect to routes, the Schedule to the Agreement be modified accordingly.
If the above proposal is acceptable to the Government of the United States of America, I have the honor to propose that this Note with its attachment and Your Excellency's Note in reply shall constitute an agreement between the Government of Japan and the Government of the United States of America which will enter into force on the date of Your Excellency's reply."
I have the honor to inform Your Excellency that the Government of the United States of America accepts the above proposal of the Government of Japan and to confirm that Your Excellency's Note with its attachment and this reply shall constitute an agreement between our two Governments, which will enter into force on the date of this reply.
Accept, Excellency, the renewed assurances of my highest consideration.
For the Secretary of State:
[Signature]
Translation
Washington, April 20, 1998
Her Excellency
Madeleine K. Albright
The Secretary of State
of the United States of America
Excellency:
I have the honor to refer to the recent consultations on the Civil Air Transport Agreement between Japan and the United States of America signed at Tokyo, on August 11, 1952, as amended (hereinafter referred to as the "1952 Agreement"). I have further the honor to propose, on behalf of the Government of Japan, that the provisions contained in the Memorandum of Understanding signed in Washington, on March 14, 1998, attached hereto, which were negotiated with a view to ensuring the implementation of the 1952 Agreement in a manner appropriate to the Japan-- U.S. aviation relationship, shall be implemented and that, with respect to routes, the Schedule to the Agreement be modified accordingly.
If the above proposal is acceptable to the Government of the United States of America, I have the honor to propose that this Note with its attachment and Your Excellency's Note in reply shall constitute an agreement between the
Government of Japan and the Government of the United States of America which will enter into force on the date of Your Excellency's reply.
I avail myself of this opportunity to renew to Your Excellency the assurances of my highest consideration.
Kunihiko Saito
Ambassador Extraordinary and Plenipotentiary of Japan to the United States of America
MEMORANDUM OF UNDERSTANDING
The following provisions were negotiated with a view to ensuring the implementation of the bilateral Civil Air Transport Agreement signed at Tokyo on August 11, 1952 (hereinafter referred to as the "1952 Agreement") in a manner appropriate to the Japan-U.S. aviation relationship.
The provisions of this Memorandum of Understanding (hereinafter referred to as the "1998 MOU"), as incorporated into an agreement to be concluded between the Government of Japan and the Government of the United States of America by an exchange of diplomatic notes, will constitute either understandings relating to implementation of the 1952 Agreement, as amended, or amendments of the Schedule attached to the 1952 Agreement.
Before the entry into force of the agreement, the Ministry of Transport of Japan and the United States Department of Transportation intend to take necessary measures to implement the elements of this 1998 MOU, on the basis of comity and reciprocity.
The terms "Party" or "Parties," as used herein, refer to Japan, the United States of America (hereinafter the "United States" or "U.S."), or both, as appropriate.
Part I. COMBINATION SERVICES
A. INCUMBENT COMBINATION AIRLINES
1. Rights of Incumbents
Two (2) airlines designated by the United States (hereinafter referred to as the "U.S. incumbent combination airlines") [FN1] and two (2) airlines designated by Japan (hereinafter referred to as the "Japanese incumbent combination airlines") [FN2] (hereinafter collectively referred to as the "incumbent combination airlines") pursuant to the 1952 Agreement may operate combination services between any point or points behind the territory of the Party designating the airlines, any point or points in the territory of the
Party designating the airlines, any intermediate point or points, any point or points in the territory of the other Party, and any point or points beyond the territory of the other Party, without any limitation on frequency or capacity, and with respect to traffic composition without limitation except on passenger fifth freedom operations as set out in subsection 2, below.
FN1. Subject to the right of the United States, provided for in the 1952 Agreement, to substitute airlines, the U.S. incumbent combination airlines shall be Northwest Airlines and United Airlines.
FN2. Subject to the right of Japan, provided for in the 1952 Agreement, to substitute airlines, the Japanese incumbent combination airlines shall be Japan Airlines and All Nippon Airways.
End of Footnote(s).
2. Formulae
Passenger services of incumbent combination airlines on route segments between the territory of the other Party and third countries, either intermediate to or beyond the territory of the other Party, (hereinafter referred to as "fifth
freedom operations") shall be subject to the applicable formulae below:
(a) Formulae Applicable to Fifth Freedom Operations of U.S. Airlines
(i) U.S. Airline Operations to and from IATA Regions TC-1 (the Americas) and TC-3 (Asia) [FN3]
FN3. All IATA regions (TC-1: "the Americas," TC-2: "Europe/Africa," and TC-3: "Asia") shall be considered to be those in effect as of January 1, 1998, as described in the International Air Transport Association, Passenger Tariff Coordinating Conferences Resolutions Manual--General Information, issued July 1997.
End of Footnote(s).
The formulae in both provision (a)(i)(1) and provision (a)(i)(2) apply to U.S. incumbent combination airlines' fifth freedom operations to and from IATA Regions TC-1 (the Americas) and TC-3 (Asia) (hereinafter referred to as "Asia/Americas"):
(1) The amount of fifth freedom passenger traffic transported by an airline between Japan and any third country points, either intermediate to or beyond
Japan, in Asia/Americas measured in passenger-miles and aggregated on a system-wide basis over a six (6) month period, [FN4] does not exceed the amount of total third and fourth freedom passenger traffic transported by the airline in Asia/Americas measured and aggregated in a similar manner. The total third and fourth freedom traffic consists of the U.S.-Japan and the U.S.-third country passenger traffic transported in Asia/Americas by that airline. This relationship between fifth freedom traffic and the total third and fourth freedom traffic can be expressed as follows:
FN4. For purposes of all formulae, for newly inaugurated services the six (6) month period would commence after a reasonable start up period of no less than three (3) months after inauguration of services.
(2) The amount of third and fourth freedom passenger traffic transported by the airline between the United States and any third country points, either
intermediate to or beyond Japan in Asia/Americas, measured in passenger miles and aggregated on a system-wide basis over a six (6) month period, is not less than twenty-five (25) percent of the amount of fifth freedom passenger traffic transported by that airline between Japan and any third country points, either intermediate to or beyond Japan in Asia/Americas, similarly measured. This relationship between the U.S.-third country third and fourth freedom traffic and fifth freedom traffic can be expressed as follows:
Pax-miles (AC) >= 25% pax-miles (BC)
(ii) Definitions for U.S. Airline Operations to and from Asia/Americas
For purposes of the above formulae for U.S. airline fifth freedom operations to and from Asia/Americas:
(1) BC represents the passenger traffic transported by a U.S. airline with an initial origin or ultimate destination in Japan (B) and an ultimate destination or initial origin in third countries intermediate to, or beyond, Japan (C);
(2) AB represents the passenger traffic with an initial origin or ultimate destination in the United States (A) and an ultimate destination or initial origin in Japan (B); and
(3) AC represents the passenger traffic transported on a flight to, from, or
via Japan with an initial origin or ultimate destination in the United States (A) and an ultimate destination or initial origin in third countries intermediate to, or beyond, Japan (C).
(4) Connecting passengers to and from the airline's homeland, on a flight of the same airline or of another airline of the same country, shall constitute third or fourth freedom traffic, not fifth freedom traffic.
(5) A passenger traveling on an aircraft carrying the code of two or more airlines shall be counted as a passenger of the airline on whose code the passenger is ticketed.
(iii) U.S. Airline Fifth Freedom Operations to and from IATA Region TC-2 (Europe/Africa)
The following formula applies to fifth freedom operations of U.S. incumbent combination airlines to and from IATA Region TC-2 (hereinafter referred to as "Europe/Africa"):
The amount of fifth freedom passenger traffic, measured in passenger miles, aggregated on a route by route basis, transported by an airline over a six (6) month period on each specified route including a fifth freedom segment to and from Europe/Africa, does not exceed the amount of third and fourth freedom passenger traffic transported by that airline on that route over the same
period, similarly measured. This relationship between the fifth freedom traffic and the third and fourth freedom traffic can be expressed as follows:
Pax-miles (BC) <= pax-miles (AC)
(iv) Definitions for U.S. Airline Operations to and from Europe/Africa
For purposes of the above formulae for U.S. airline fifth freedom operations to and from Europe/Africa:
(1) BC represents the passenger traffic transported by a U.S. airline with an initial origin or ultimate destination in Japan (B) and an ultimate destination or initial origin in third countries intermediate to, or beyond, Japan (C).
(2) AC represents the passenger traffic transported on a flight to, from, or via Japan with an initial origin or ultimate destination in the United States (A) and an ultimate destination or initial origin in third countries intermediate to, or beyond, Japan (C).
(3) A passenger traveling on an aircraft carrying the code of two or more airlines shall be counted as a passenger of the airline on whose code the passenger is ticketed.
(b) Formulae Applicable to Fifth Freedom Operations of Japanese Airlines
(i) Japanese Airline Operations to and from IATA Regions TC-1 (the Americas) and TC-3 (Asia)
The formulae in both provision (b)(i)(1) and provision (b)(i)(2) apply to Japanese incumbent combination airlines' fifth freedom operations to and from Asia/Americas:
(1) The amount of fifth freedom passenger traffic transported by an airline between the United States and any third country points, either intermediate to or beyond the United States, in Asia/Americas measured in passenger miles and aggregated on a system-wide basis over a six (6) month period, does not exceed the amount of total third and fourth freedom passenger traffic transported by the airline in Asia/Americas measured and aggregated in a similar manner. The total third and fourth freedom traffic consists of the Japan-U.S. and the Japan-third country passenger traffic transported in Asia/Americas by that airline. This relationship between fifth freedom traffic and the total third and fourth freedom traffic can be expressed as follows:
(2) The amount of third and fourth freedom passenger traffic transported by the airline between Japan and any third country points, either intermediate to or beyond the United States in Asia/Americas, measured in passenger miles and aggregated on a system-wide basis over a six (6) month period, is not less than twenty-five (25) percent of the amount of fifth freedom passenger traffic transported by that airline between the United States and any third country points, either intermediate to or beyond the United States in Asia/Americas, similarly measured. This relationship between the Japan-third country third and fourth freedom traffic and fifth freedom traffic can be expressed as follows:
Pax-miles (AC) >= 25% pax-miles (BC)
(ii) Definitions for Japanese Airline Operations to and from Asia/Americas
For purposes of the above formulae for Japanese airline fifth freedom operations to and from Asia/Americas:
(1) BC represents the passenger traffic transported by a Japanese airline with an initial origin or ultimate destination in the United States (B) and an ultimate destination or initial origin in third countries intermediate to, or beyond, the United States (C);
(2) AB represents the passenger traffic with an initial origin or ultimate destination in Japan (A) and an ultimate destination or initial origin in the United States (B); and
(3) AC represents the passenger traffic transported on a flight to, from, or via the United States with an initial origin or ultimate destination in Japan (A) and an ultimate destination or initial origin in third countries intermediate to or beyond the United States (C).
(4) Connecting passengers to and from the airline's homeland, on a flight of the same airline or of another airline of the same country, shall constitute third or fourth freedom traffic, not fifth freedom traffic.
(5) A passenger traveling on an aircraft carrying the code of two or more airlines shall be counted as a passenger of the airline on whose code the passenger is ticketed.
(iii) Japanese Airline Fifth Freedom Operations to and from Europe/Africa
The following formula applies to fifth freedom operations of Japanese incumbent combination airlines to and from Europe/Africa:
The amount of fifth freedom passenger traffic, measured in passenger miles, aggregated on a route by route basis, transported by an airline over a six (6) month period on each specified route including a fifth freedom segment to and
from Europe/Africa, does not exceed the amount of third and fourth freedom passenger traffic transported by that airline on that route over the same period, similarly measured. This relationship between the fifth freedom traffic and the third and fourth freedom traffic can be expressed as follows:
Pax-miles (BC) <= pax-miles (AC)
(iv) Definitions for Japanese Airline Operations to and from Europe/Africa
For purposes of the above formulae for Japanese airline fifth freedom operations to and from Europe/Africa:
(1) BC represents the passenger traffic transported by a Japanese airline with an initial origin or ultimate destination in the United States (B) and an ultimate destination or initial origin in third countries intermediate to, or beyond, the United States (C);
(2) AC represents the passenger traffic transported on a flight to, from, or via the United States with an initial origin or ultimate destination in Japan (A) and an ultimate destination or initial origin in third countries intermediate to, or beyond, the United States (C).
(3) A passenger traveling on an aircraft carrying the code of two or more airlines shall be counted as a passenger of the airline on whose code the
passenger is ticketed.
B. NON-INCUMBENT COMBINATION AIRLINES
1. Designations
(a) Each Party may designate, pursuant to the 1952 Agreement, up to four (4) airlines, including any airlines, other than incumbent combination airlines, designated under the 1952 Agreement and all agreements and understandings related thereto (hereinafter referred to as the "prior agreements"), to operate combination services as non-incumbent combination airlines (hereinafter referred to as the "non-incumbent combination airlines"). [FN5]
FN5. Subject to the right of the Parties, provided for in the 1952 Agreement, to substitute airlines, pursuant to subsection 6, below, these airlines shall include, for the United States, the current non-incumbent combination airlines--Delta Airlines, American Airlines, and Continental Airlines/Continental Micronesia Airlines/Air Micronesia.
End of Footnote(s).
(b) Effective January 1, 2000, each Party may designate a fifth non-incumbent combination airline.
2. Non-Restricted Frequencies
Non-incumbent combination airlines of each Party, in the aggregate, may operate, in addition to frequencies authorized pursuant to the prior agreements, up to twenty-eight (28) weekly round-trip frequencies between any point or points in the territories of the Parties, regardless of any restrictions on designations or frequencies on those city-pair markets under the prior agreements.
3. Restricted Frequencies
(a) Non-incumbent combination airlines of each Party, in the aggregate, may operate, in addition to the frequencies authorized pursuant to the prior agreements, up to forty-two (42) weekly round-trip frequencies between any point or points in the territories of the Parties, regardless of any restrictions on designations or frequencies on those city-pair markets under the prior agreements, except in the following city-pair markets:
Tokyo - New York [FNa1]
FNa1. For purposes of identifying restricted city-pair markets, Newark, New Jersey, shall be treated as a separate point from New York, New York; and Oakland, California, shall be treated as a separate point from San Francisco, California.
End of Footnote(s).
Tokyo - Chicago
Tokyo - San Francisco [FNa1]
FNa1. For purposes of identifying restricted city-pair markets, Newark, New Jersey, shall be treated as a separate point from New York, New York; and Oakland, California, shall be treated as a separate point from San Francisco, California.
End of Footnote(s).
Tokyo - Los Angeles
Tokyo - Honolulu
Tokyo - Guam/Saipan
Osaka - Los Angeles
Osaka - Honolulu
Osaka - Guam/Saipan
Nagoya - Honolulu
Fukuoka - Honolulu
(b) With respect to city-pair markets listed in paragraph B 3(a), above, if (i) no airline of the other Party is serving a city-pair market, or (ii) if the level of service provided by the airlines of both Parties in the market falls to six (6) or fewer round-trip frequencies per week, in the aggregate, for a one (1) year period, aeronautical authorities of either Party may request consultations to determine whether there are public interest reasons for permitting such a city-pair to be served with restricted frequencies.
4. Reallocation of Frequencies
Each Party shall have the right to:
(a) Reallocate to any of its non-incumbent combination airlines any frequencies provided for in the prior agreements, except those provided for routes between Guam/Saipan and Japan, [FN6] that are allocated to that Party's incumbent combination airlines, including All Nippon Airways, as of January 1, 1998. Following such reallocation, these frequencies may be used for operations
between any point or points in the territories of the Parties, regardless of any restrictions on designations or frequencies on those city-pair markets under the prior agreements, except in the city-pair markets restricted pursuant to subsection I B 3, above. These frequencies shall be in addition to the frequencies provided for in subsections I B 2 and 3, above; and
FN6. For Guam/Saipan-Japan routes, see subsection I B 7.
End of Footnote(s).
(b) On sixty (60) days notice, reallocate the frequencies provided for in subsections I B 2, 3 and 4 for non-incumbent combination airlines among any of its non-incumbent combination airlines and to change the points selected for each frequency, subject to any point limitations applicable to such frequency in accordance with subsection 3, regardless of any restrictions on designations or frequencies on those city-pair markets under the prior agreements.
5. Right to Switch Points
(a) Except with respect to Guam/Saipan-Japan routes, which are addressed in subsection I B 7, below, each Party shall have the right to select up to three
(3) non-incumbent combination airlines, each of which shall, upon six (6) months notice to the aeronautical authorities of the other Party, be permitted to switch, on a one time, one city-pair basis, the point selected in its territory for frequencies provided for in the prior agreements and allocated as of January 1, 1998, to that airline, to any other point in its territory, regardless of any restrictions on designations or frequencies on those city-pair markets under the prior agreements. This right is subject to the limitation that if the city-pair market from which the switch will be made is not on the list of restricted city-pairs described in paragraph I B 3(a), then the frequency may not be switched to a city-pair market on that list.
(b) In lieu of one of the switches permitted under paragraph (a), above, the United States shall have the right to authorize its non-incumbent combination airline authorized as of January 1, 1998, [FN7] under paragraph II of the 1985 interim agreement, concluded May 1, 1985 (hereinafter referred to as the "1985 MOU") to serve Saipan-Tokyo as a coterminal with Guam-Tokyo, to operate up to seven (7) weekly round-trip frequencies on any city-pair, except the restricted city-pairs identified in paragraph I B 3(a), above, in addition to frequencies provided for elsewhere in this 1998 MOU or the prior agreements. If the airline switches from Saipan-Tokyo to another city-pair, pursuant to this paragraph, then: (i) that airline may not be selected, under subsection 7 (Guam/Saipan-Japan Routes) of this 1998 MOU, to operate the Saipan-Tokyo route;
and (ii) the number of non-incumbent combination airlines to be selected by the Party under paragraph I B 7(a), below, shall be reduced to one (1) for Saipan-Tokyo. The Party may reverse the switch and then re-authorize the same airline to serve Saipan-Tokyo with unlimited frequencies, as prior to the switch. [FN8]
FN7. The referenced airline is Continental Airlines/Continental Micronesia Airlines/Air Micronesia.
FN8. Service by the referenced airline on the Guam-Tokyo city-pair shall not be affected by an exercise of rights under this paragraph (b).
End of Footnote(s).
6. Right to Substitute Airlines
Each Party may designate, on sixty (60) days notice, substitute airlines for any of its non-incumbent combination airlines, subject to the limitation that the total number of airlines designated at any one time shall not exceed the number of authorized designations, as described in subsection I B 1(Designations), above.
7. Guam/Saipan - Japan Routes
The provisions of this subsection supersede any provision regarding Guam/Saipan-Japan routes contained in the prior agreements.
(a) Each Party may select two (2) non-incumbent combination airlines, including those non-incumbent combination airlines that were designated under the prior agreements, to operate on each of the following Guam/Saipan-Japan routes, without any limitation on frequencies or capacity.
Guam/Saipan-Tokyo
Guam/Saipan-Osaka
Guam/Saipan-Nagoya
Guam/Saipan-Fukuoka
Guam/Saipan-Naha
(b) In addition, each Party may select a non-incumbent combination airline or airlines, including the non-incumbent combination airline that was designated under the prior agreements, to operate services between Guam/Saipan and any two (2) points in Japan other than Tokyo, Osaka, Nagoya, Fukuoka and Naha, without any limitation on frequencies or capacity. Each Party may select one (1) non-incumbent combination airline to serve each of these two points. Each Party may select the points for its airlines and, upon sixty (60) days notice to the other Party, may change the selection.
(c) For each route listed in paragraph (a) of this subsection 7, in lieu of selecting two (2) non-incumbent combination airlines, each Party may select a non-incumbent combination airline to operate on a route between Guam/Saipan and a new point in Japan other than those permitted under paragraphs (a) and (b) of this subsection 7, without any limitation on frequencies or capacity. Each Party may select such new points in Japan for its airlines, subject to the following:
(i) A Party may not select a point in Japan that is being served to or from Guam/Saipan by an airline of the other Party that operated such route as of January 1, 1998, provided that, in the event such airline terminates services on that Guam/Saipan-Japan route for a six (6) month period, such route shall become eligible for service;
(ii) Once a Party selects a new point in Japan under this paragraph (c), the number of non-incumbent combination airlines of the Party permitted under paragraph (a) of this subsection 7 on the route concerned shall become one (1), except that, on sixty (60) days notice, the Party may switch the selection back to the original Guam/Saipan-Japan route and the number of non-incumbent combination airlines to be selected on the route under paragraph (a) of this subsection 7 shall be restored to two (2); and
(iii) No more than a total of four new points in Japan may be served under this paragraph (c) at any time.
(d) The provisions of this subsection 7 shall not be construed to constrain any right of incumbent combination airlines under subsection I A 1 or that of non-incumbent combination airlines under subsections I B 2 and 3.
Part II. ALL-CARGO SERVICES
Part I (All-Cargo Services) of the 1996 all-cargo agreement, concluded August 21, 1996 (hereinafter referred to as the "1996 MOU"), shall be amended to read as follows:
A. INCUMBENT ALL-CARGO AIRLINES
1. The Japanese Incumbent All-Cargo Airlines
Two (2) airlines designated by Japan (hereinafter referred to as the "Japanese incumbent all-cargo airlines") [FN9] pursuant to the 1952 Agreement may operate all-cargo services between any point or points behind Japan, any point or points in Japan, any intermediate point or points, any point or points in the United States, and any point or points beyond the United States, without any limitation on frequency, capacity, or traffic composition. [FN10]
FN9. Subject to the right of Japan, provided for in the 1952 Agreement, to substitute airlines, the Japanese incumbent all-cargo airlines shall be Japan Airlines and Nippon Cargo Airlines.
FN10. No formula will apply to Japanese incumbent all-cargo services.
End of Footnote(s).
2. The U.S. Incumbent All-Cargo Airlines
Three (3) airlines designated by the United States (hereinafter referred to as the "U.S. incumbent all-cargo airlines") [FN11] pursuant to the 1952 Agreement may operate all-cargo services between any point or points behind the United States, any point or points in the United States, any intermediate point or points, any point or points in Japan, and any point or points beyond Japan, without any limitation on frequency, capacity, or traffic composition. [FN12]
FN11. Subject to the right of the United States, provided for in the 1952 Agreement, to substitute airlines, the U.S. incumbent all-cargo airlines shall be Federal Express, Northwest Airlines, and United Airlines.
FN12. No formula will apply to U.S. incumbent all-cargo services.
End of Footnote(s).
B. NON-INCUMBENT ALL-CARGO AIRLINES
1. New Non-Incumbent All-Cargo Airlines Designated by Japan
(a) Japan may designate one (1) airline other than incumbent all-cargo airlines to operate all-cargo services from any point or points in Japan.
(b) The airline designated under the preceding paragraph B 1 (a) may operate the frequencies that were available to Nippon Cargo Airlines under the 1985 MOU, the 1989 interim agreement, concluded December 27, 1989 (hereinafter referred to as the "1989 MOU") and the 1996 interim agreement concluded February 26, 1996 (hereinafter referred to as the "1995 ROC") on the routes including any of the four (4) points in the United States to which Nippon Cargo Airlines was authorized to operate under the 1985 MOU, the 1989 MOU, and the 1995 ROC with full coterminalization. [FN13]
FN13. The referenced four (4) points in the United States to which Nippon Cargo Airlines was authorized to operate are Los Angeles, San Francisco, New York, and Chicago. Any frequencies operated by Nippon Cargo Airlines shall not be counted against frequencies provided for in the 1985 MOU, the 1989 MOU, or the 1995 ROC.
End of Footnote(s).
(c) In addition to the four (4) points mentioned in paragraph (b), above, the airline designated pursuant to paragraph B 1(a), above, may operate all-cargo services to three (3) additional points in the United States. The three (3) additional points may be selected, or changed, on sixty (60) days notice by Japan to the United States.
(d) In addition to the frequencies referred to in paragraph B 1(b), above, the airline designated pursuant to paragraph B 1(a), above, may operate all-cargo services with eighteen (18) additional weekly frequencies. These eighteen (18) frequencies may be operated by the airline with full coterminalization to all seven (7) points in the United States mentioned in paragraphs B 1(b) and B 1(c), above.
(e) The airline designated under paragraph B 1(a), above, may operate beyond each of its authorized points in the United States to two (2) points beyond the United States, with full traffic rights between all points in the routes. Japan may select the same or different beyond points for each of the authorized
points in the United States and may change the beyond points with sixty (60) days notice.
(f) In addition to the airline designated pursuant to paragraph B 1(a), above, Japan may designate one (1) airline (hereinafter referred to as the "new entrant"), other than incumbent all-cargo airlines, to operate all-cargo services between any point or points in Japan and one (1) of the points in the United States to which the airline designated pursuant to paragraph B 1(a), above, may operate. The new entrant may use up to six (6) of any weekly frequencies available to, but not used by the airline designated pursuant to paragraph B 1(a), above. The point in the United States may be selected, or changed, on sixty (60) days notice by Japan to the United States.
(g) Operations of Japan Airlines and Nippon Cargo Airlines shall not be counted for purposes of Section III (Frequency Limitations) of the 1989 MOU.
2. Non-Incumbent All-Cargo Airlines Designated by the United States under the Prior Agreements
(a) The non-incumbent all-cargo airline designated by the United States under the 1989 MOU may operate eighteen (18) weekly all-cargo frequencies, in the aggregate, including the frequencies authorized for the airline under the 1989 MOU, between any point or points in the United States, any two (2) points
in Japan, and beyond each point in Japan to and from any two (2) points, with full traffic rights between all points on the routes. Such airline may coterminalize all the points in Japan to which it may operate.
(b) These rights shall be subject to the limitation that no more than six (6) weekly frequencies may be operated on routings including Tokyo and no more than twelve (12) weekly frequencies on routings including Osaka.
(c) The United States may select the same or different beyond points for each of the two points selected in Japan. The points selected by the United States in Japan and the beyond points may be changed on sixty (60) days notice by the United States to Japan.
(d) The United States may designate [FN14] one (1) airline that was not operating scheduled combination or all-cargo services between the United States and Japan as of the date of the signature of the 1996 MOU to operate all-cargo services with six (6) weekly frequencies, in the aggregate, between any point or points in the United States, any two (2) points in Japan, and, from each point in Japan, any one (1) beyond point, with full traffic rights between all points on the routes. Such airline may coterminalize all the points in Japan to which it may operate. The United States may select the same or different beyond points for each of the two points selected in Japan and may change the points in Japan and the beyond points with sixty (60) days notice by the United States to Japan.
FN14. An airline designated under the 1996 MOU prior to this 1998 MOU need not be redesignated by the United States.
End of Footnote(s).
3. Additional All-Cargo Entrants for Japan and the United States
Effective January 1, 2002, each Party may designate one (1) airline, in addition to designations permitted elsewhere in this 1998 MOU or under the prior agreements, to operate as a non-incumbent all-cargo airline. Airlines designated under this provision may operate up to five (5) weekly frequencies between any point or points in the territory of the Party designating the airline, any one (1) point in the territory of the other Party, and any one (1) point beyond the territory of the other Party, without local traffic rights on the beyond sector, provided that Tokyo and Osaka and any U.S. point served by a Japanese all-cargo airline as of January 1, 1998, may not be served. [FN15] The Party designating the airline shall select, and may change on sixty (60) days notice, the point in the territory of the other Party and the beyond point.
FN15. The U.S. points served by an Japanese all-cargo airline as of January 1, 1998, are: Anchorage, Los Angeles, San Francisco, Chicago, New York, and Atlanta. For purposes of this Section, Newark, New Jersey, shall be treated as separate from New York, New York, and Oakland, California, shall be treated as a separate point from San Francisco, California.
End of Footnote(s).
4. Provisions Applicable to All-Cargo Airlines Designated by Japan and the United States
(a) For purposes of frequency limitations on all-cargo services under the 1985 MOU, the 1989 MOU, the 1995 ROC, and this 1996 MOU, as amended, any all-cargo flight from the territory of either Party to the territory of the other Party, and a return flight in the opposite direction, shall together constitute one frequency regardless of the number of traffic stops made in the territory of either Party or whether or not the flight operates beyond the territory of the other Party. If an airline does not operate a return flight, the flight in one direction shall still constitute one frequency.
(b) For purposes of all-cargo services to the beyond points referred to in paragraphs B 1(e) and B 2(a), above, the two beyond points may be served on a single flight or separate flights.
(c) Each Party may, on sixty (60) days notice, designate substitute airlines for any of the incumbent and non-incumbent all-cargo airlines.
Part III. CHARTER SERVICES
The provisions in this Part (Charter Services) supersede the limitations on passenger and cargo charter operations between Japan and the United States contained in the prior agreements.
A. EQUALIZATION OF CHARTER FREQUENCIES
Airlines of each Party, in the aggregate, may operate up to four hundred (400) one-way charter flights per year between any point or points in the United States and any point or points in Japan, subject to the limitation that no more than three hundred (300) one-way charter flights may be operated to or from Tokyo or Osaka in the aggregate, by the airlines of each Party. Charter operations shall be subject to country-of-origin rules, except as provided in Section C, below.
B. EXPANSION OF CHARTER OPPORTUNITIES
1. Effective January 1, 2000, superseding Section III A, above, airlines of each Party, in the aggregate, may operate up to six hundred (600) one-way charter flights per year between any point or points in the United States and any point or points in Japan, subject to the limitation that no more than three hundred (300) one-way charter flights may be operated to or from Tokyo by the airlines of each Party. Charter operations shall be subject to country-of-origin rules, except as provided in Section C, below.
2. Effective January 1, 2002, superseding subsection III B 1, above, airlines of each Party, in the aggregate, may operate up to eight hundred (800) one-way charter flights per year between any point or points in the United States and any point or points in Japan, subject to the limitation that no more than three hundred (300) one-way charter flights may be operated to or from Tokyo by the airlines of each Party. Charter operations shall be subject to country-of-origin rules, except as provided in Section C, below.
C. FREIGHT FORWARDER CHARTERS
1. Airlines of the United States, in the aggregate, may operate each year up to one hundred and fifty (150) air freight forwarder charter units, originating in Japan and destined for the United States, subject to the limitation set forth in Section A, above. The following equivalencies will apply for purposes of
counting units:
DC-8F or equivalent aircraft 1
DC-10 or L-1011 2
B747F 2.5
2. Effective January 1, 2000, superseding subparagraph 1, above, airlines of the United States, in the aggregate, may operate each year up to two hundred and twenty-five (225) air freight forwarder charter flights, without restriction as to aircraft type, originating in Japan and destined for the United States, subject to the limitation set forth in the applicable subsection of Section III B (Expansion of Charter Opportunities), above.
D. LEASING ARRANGEMENTS
Subject to country-of-origin rules and the requirements normally applied to such arrangements, charter airlines may engage in leasing arrangements with airlines performing scheduled or charter services.
Part IV. COOPERATIVE MARKETING ARRANGEMENTS FOR COMBINATION AND ALL-CARGO SERVICES
A. OPERATION OF COOPERATIVE MARKETING ARRANGEMENTS - REQUIREMENTS FOR THE OPERATING AIRLINE
In operating the authorized services on routes that include points in the territories of the Parties and also may include behind, intermediate, and beyond points, any designated airline of one Party may enter into cooperative marketing arrangements such as blocked-space, codeshare or leasing arrangements with:
1. An airline or airlines of the other Party;
2. An airline or airlines of the same Party, subject to the limitations in Section IV E (Limitations on Same Country Airline Codesharing), below;
3. An airline or airlines of a third country on segment(s) that do not involve traffic, carried under the code of the third country non-operating airline, destined to or originating in the territory of the other Party; provided that
the third country gives assurances to the other Party that it will permit the airlines of the other Party to enter into codeshare arrangements with other airlines on authorized routes between the territories of the Parties and the third country;
- In conjunction with this right, if an airline of one Party seeks to enter into a codeshare arrangement with an airline of a third country on route segment(s) between the territories of the Parties and the third country; the other Party shall permit the airlines of that third country to codeshare with other airlines on route segment(s) between the territories of the Parties and the third country for which the airlines involved hold authority, provided that the third country gives assurances to the other Party that it will permit the airlines of the other Party to enter into codeshare arrangements with other airlines on any authorized route segment(s) between the territories of the Parties and the third country. Should the third country subsequently deny a request of the airlines of the other Party to enter into codeshare arrangements with other airlines on such routes, then the other Party shall have no obligation to approve codeshare services between the airlines of the first Party and the airlines of that third country;
4. An airline or airlines of a third country, except as provided in subsection IV A 5, below, on segment(s) that involve traffic, carried under the code of the third country non-operating airline, destined to or originating in the
territory of the other Party; provided that such third country authorizes or allows comparable arrangements between the airlines of the other Party and other airlines on services to, from and via such third country;
5. An airline or airlines of a third country in the Americas, on segment(s) that involve traffic, carried under the code of the third country non-operating airline, destined to or originating in the territory of the other Party, only at the discretion of the aeronautical authorities of the Parties;
provided that all airlines in such arrangements (i) hold the appropriate authority, except as specifically provided in Section IV D, below, and (ii) meet the requirements normally applied to such arrangements. An airline authorized only for all-cargo services may not codeshare on combination services and an airline authorized only for combination services may not codeshare on all-cargo services.
B. OPERATION OF COOPERATIVE MARKETING ARRANGEMENTS - REQUIREMENTS FOR THE NON-OPERATING AIRLINE
On services on routes that include points in the territories of the Parties and also may include behind, intermediate, and beyond points, using aircraft operated by an airline or airlines described below, any designated airline of one Party may enter into cooperative marketing arrangements such as blocked-
space, codeshare or leasing arrangements, with:
1. An airline or airlines of the other Party;
2. An airline or airlines of the same Party, subject to the limitations in Section IV E (Limitations on Same Country Airline Codesharing), below;
3. An airline or airlines of a third country, on segment(s) that do not involve traffic carried under the code of the non-operating airline of the Party destined to or originating in the territory of the other Party; provided that the third country gives assurances to the other Party that it will permit the airlines of the other Party to enter into codeshare arrangements with other airlines on authorized routes between the territories of the Parties and the third country;
- In conjunction with this right, if an airline of one Party seeks to enter into a codeshare arrangement with an airline of a third country on route segment(s) between the territories of the Parties and the third country; the other Party shall permit the airlines of that third country to codeshare with other airlines on route segment(s) between the territories of the Parties and the third country for which the airlines involved hold authority, provided that the third country gives assurances to the other Party that it will permit the airlines of the other Party to enter into codeshare arrangements with other airlines on any authorized route segment(s) between the territories of the Parties and the third country. Should the third country subsequently deny a
request of the airlines of the other Party to enter into codeshare arrangements with other airlines on such routes, then the other Party shall have no obligation to approve codeshare services between the airlines of the first Party and the airlines of that third country;
4. An airline or airlines of a third country, except as provided in subsection IV B 5, below, on segment(s) that involve traffic, carried under the code of the non-operating airline of a Party, destined to or originating in the territory of the other Party; provided that such third country authorizes or allows comparable arrangements between the airlines of the other Party and other airlines on services to, from and via such third country;
5. An airline or airlines of a third country in the Americas, on segment(s) that involve traffic, carried under the code of the non-operating airline of the Party, destined to or originating in the territory of the other Party, only at the discretion of the aeronautical authorities of the Parties;
provided that all airlines in such arrangements (i) hold the appropriate authority, except as specifically provided in Section D, below, and (ii) meet the requirements normally applied to such arrangements. For beyond and intermediate point services of the non-operating airline of the first Party, the codeshare services may be offered only on a blind sector basis. An airline authorized only for all-cargo services may not codeshare on combination services and an airline authorized only for combination services may not
codeshare on all-cargo services.
C. COUNTING CAPACITY OR FREQUENCIES
1. Where a non-incumbent airline of either Party operates, into the territory of the other Party, aircraft that is involved in codeshare operations under this Part IV (Cooperative Marketing Arrangements for Combination and All-Cargo Services), the frequencies of such operations shall be counted against any limitations on frequencies applicable under this 1998 MOU or the prior agreements to the operating airline.
2. Where a non-incumbent airline of either Party holds out its services on aircraft operated into the territory of the other Party by another airline under a codeshare arrangement under this Section, the frequencies of such operations shall not be counted against any limitation on frequencies applicable under this 1998 MOU or the prior agreements to the non-incumbent airline.
3. Without prejudice to the provisions of subsections A 4 and B 4 of this Part, any codeshare operations between an airline of a Party and an airline of a third country that involves traffic carried under the code of the airline of the third country, which is destined to or originating in the territory of the other Party, shall be subject to any applicable limitations on capacity or
frequency contained in agreements between the other Party and the third country.
4. Any codeshare operations between an airline of a Party and an airline of a third country that do not involve traffic, carried under the code of the airline of the third country, which is destined to or originating in the territory of the other Party, shall not be subject to any limitation on capacity or frequency contained in agreements between the other Party and the third country.
D. CODESHARE ONLY AUTHORITY FOR NON-INCUMBENT COMBINATION AND NON-INCUMBENT ALL-CARGO AIRLINES TO HOLD OUT SERVICES UNDER CODESHARE ARRANGEMENTS ON ROUTES FOR WHICH THEY LACK OPERATING AUTHORITY
Subject to the requirements in Section IV B, and the limitations in Section IV E (Limitations on Same Country Airline Codesharing), each Party may grant to its non-incumbent combination airlines and non-incumbent all-cargo airlines authority to place their code on services operated by airlines of either Party or by airlines of third countries, under codeshare arrangements, between any point or points behind the territories of the Parties, any point or points in the territories of the Parties, and any point or points intermediate to and beyond the territories of the Parties, whether or not they hold authority to
operate services on the routes, provided that for beyond and intermediate point services of non-incumbent combination and all-cargo airlines the codeshare service may be offered only on a blind sector basis.
E. LIMITATIONS ON SAME COUNTRY AIRLINE CODESHARING
Codesharing between airlines of the same Party shall be subject to the following limitations, except that codeshare operations involving airlines of the same Party that also involve an airline or airlines of the other Party shall not be subject to any restriction in this Section (Limitations on Same Country Airline Codesharing), and shall not be counted against any limitation in this Section.
1. Any designated airline may enter into codeshare arrangements with any other airline of the same Party on behind-gateway services in the territory of the Party without limitation.
2. No airlines of one Party may engage in codeshare arrangements in all-cargo services with other airlines of the same Party, except as provided for in subsection 1 of this Section.
Category A and Category B Airlines (for combination services)
3. Designated combination airlines of either Party not providing service between the mainland U.S. and Japan as of January 1, 1998, shall be considered, for the purpose of this Section, to be "Category A Airlines." Designated combination airlines that were providing service between the mainland U.S. and Japan as of January 1, 1998, shall be considered, for the purposes of this Section, to be "Category B Airlines." [FN16]
FN16. For the United States, the Category B Airlines are United Airlines, Northwest Airlines, American Airlines, and Delta Airlines. For Japan, the Category B Airlines are Japan Airlines and All Nippon Airways.
End of Footnote(s).
4. Category B Airlines may not enter into codeshare arrangements with other Category B Airlines of the same Party on gateway-to-gateway or beyond segments.
5. Category B Airlines may enter into codeshare arrangements with Category A Airlines of the same Party on gateway-to-gateway services operated by the Category A Airlines.
6. Category A Airlines may enter into codeshare arrangements with any designated airlines of the same Party on gateway-to-gateway services operated by the other designated airline, subject to the limitation that:
- In the case of city-pair markets listed in subsection I B 3 of this 1998 MOU, a Category A Airline may codeshare with an incumbent airline of the same country only up to the number of weekly frequencies indicated for that incumbent airline in the Appendix attached hereto for the specific city-pair, [FN17] except that this right may not be implemented on a U.S.-Japan city-pair where both airlines were operating a service as of January 1, 1998. [FN18]
FN17. The Appendix attached hereto reflects weekly frequencies for the listed airlines, based on schedules for the 1997/1998 IATA winter season.
FN18. The referenced city-pairs are identified from the information in the Appendix.
End of Footnote(s).
7. Airlines of each Party, in the aggregate, may operate twenty-eight (28) weekly round-trip frequencies under codeshare arrangements pursuant to subsections 5 and 6 of this Section.
8. The number of weekly round-trip frequencies specified in subsection 7 of this Section shall be increased if a Category A Airline of the other Party engages in codesharing on flights carrying the codes of two or more airlines of
the first Party engaged in codeshare arrangements pursuant to subsections 5 or 6 of this Section. The number of such additional frequencies shall be equal to the number of weekly round-trip frequencies on which the Category A Airline of the other Party codeshares on such flights, on any gateway-to-gateway segment.
9. Notwithstanding the above provisions, same country codesharing services shall not be initiated on any gateway-to-gateway route segment(s) for a period of three (3) years after service has been inaugurated on that segment(s) by a Category A Airline of the other Party that does not have a codesharing relationship either with an airline of the other Party or an airline of the same Party.
10. Category A Airlines may enter into codeshare arrangements with incumbent combination airlines of the same Party on beyond services on a blind-sector basis. The number of frequencies operated under such codeshare arrangements shall be twenty-one (21) weekly round-trip frequencies, in the aggregate, for each Party. This number of frequencies shall be increased if a Category A Airline of the other Party enters into a codeshare arrangement with a designated airline of the first Party, by the number equal to the number of weekly round-trip frequencies on which the Category A Airline of the other Party codeshares with the designated airline of the first Party on any segment beyond the territory of either Party.
NateDAL From United States, joined Jan 2006, 408 posts, RR: 0 Reply 13, posted (3 years 4 months 4 days 19 hours ago) and read 2108 times:
Quoting AeroWesty (Reply 11):
I'm actually thinking of doing that at some point (maybe sooner than later now that I know this is available). I'd appreciate a copy in Word, just add @aol.com to my user name here.
I e-mailed the Bermuda II agreement to BCAL who should be posting a Word doc soon.
NateDAL From United States, joined Jan 2006, 408 posts, RR: 0 Reply 14, posted (3 years 4 months 4 days 19 hours ago) and read 2102 times:
CONTINUATION OF US-JAPAN
Part V. CHANGE OF GAUGE
A. FOR COMBINATION SERVICES
1. For combination services, on any segment(s) of the authorized routes, any designated airline may perform international air transportation without any limitation as to change, in both the inbound and outbound directions, at any point on the route, in type or number of aircraft operated; provided that:
(a) In the outbound direction, transportation beyond such point is a continuation of the transportation from the territory of the Party that has designated the airline and, in the inbound direction, the transportation to the territory of the Party that has designated the airline is a continuation of the transportation from beyond such point;
(b) For flights outbound from the homeland, onward transportation from the point of change of gauge in the territory of the other Party is performed by a single or multiple flights with (an) aircraft whose capacity in total is not greater than ten (10) percent more than that of the aircraft arriving at the change of gauge point; and
(c) For flights inbound to the homeland, transportation to the point of change of gauge in the territory of the other Party is performed by a single or multiple flights with (an) aircraft having the capacity in total not greater
than ten (10) percent more than that of the aircraft performing onward transportation from the point of change of gauge.
2. Transportation performed on aircraft of other airlines under codeshare arrangements shall not be counted for purposes of this Section.
B. FOR ALL-CARGO SERVICES
1. For all-cargo services, on any segment(s) of the authorized routes, any designated airline may perform international air transportation without any limitation as to change, in both the inbound and outbound directions, at any point on the route, in type or number of aircraft operated; provided that:
(a) In the outbound direction, transportation beyond such point is a continuation of the transportation from the territory of the Party that has designated the airline and, in the inbound direction, the transportation to the territory of the Party that has designated the airline is a continuation of the transportation from beyond such point; and
(b) For each flight outbound from the homeland, when a change of gauge takes place in the territory of the other Party, the onward transportation to a point or points in third countries may be performed by any number of aircraft as long as the aggregate capacity, measured in cubic footage, of those aircraft does not exceed the capacity of three 747-100 freighters.
2. Transportation performed on aircraft of other airlines under codeshare arrangements shall not be counted for purposes of this Section.
Part VI. OPERATIONAL FLEXIBILITY
With respect to all services described above, subject to the route or city-pair list restrictions under this 1998 MOU or the prior agreements, airlines designated by the Parties may, at their option:
A. Operate flights in either or both directions;
B. Combine different flight numbers within one aircraft operation;
C. Serve behind, intermediate, and beyond points and points in the territories of the Parties on the routes in any combination and in any order;
D. Omit stops at any point or points; and
E. Transfer traffic from any of its aircraft to any of its other aircraft at any point on the routes;
without directional or geographic limitation and without loss of any right to carry traffic otherwise permissible under this 1998 MOU; provided that the service serves a point in the territory of the Party designating the airline.
Part VII. PRICING AND DISTRIBUTION
1. There shall be a fair and equal opportunity for the airlines of both Parties to contract with wholesalers, travel agents, and other similar bodies, if any, for the sales of their air transportation services in accordance with laws and regulations of the Party where such a contract is concluded. Airlines of both Parties also shall be free to market their air transportation services directly to consumers, inter alia, by establishing their own sales channels to this end in accordance with laws and regulations of the Party where they market the service.
2. Experts of both Parties will meet by May 1, 1998, to consider steps to liberalize pricing, including zone pricing.
3. Until such time as a new agreement is reached on pricing, aeronautical authorities of each Party will flexibly approve air fares proposed by airlines. This would require, for example, at a minimum, approval of a proposed fare or rate of airlines of either Party that matches any competitive fare or rate which is permitted under the current regime.
Part VIII. FUTURE NEGOTIATIONS
A. Negotiations shall commence no later than January 1, 2001, with the objective of fully liberalizing the civil aviation relationship between Japan and the United States.
B. If no agreement is reached as a result of the above-referenced negotiations by January 1, 2002, then additional opportunities shall become available, as described in Part IX, below.
Part IX. ADDITIONAL OPPORTUNITIES FOR COMBINATION SERVICES
Frequencies provided for in this Part become available on the dates provided for in this Part or when non-incumbent combination airlines of either side are operating fifty-six (56) weekly round-trip frequencies authorized by this 1998 MOU, whichever is later; unless otherwise provided in a new agreement between the Parties, as contemplated by Part VIII (Future Negotiations), that has entered into force or has otherwise been implemented by both Parties.
A. NEW FREQUENCIES FOR NON-INCUMBENT COMBINATION AIRLINES
1. Effective January 1, 2002:
(a) The aggregate number of non-restricted weekly round-trip frequencies, provided for in subsection I B 2 of this 1998 MOU, shall increase by seven (7);
(b) An additional fourteen (14) weekly round-trip frequencies, in the aggregate, may be operated by non-incumbent combination airlines of each Party on routes including any city-pair markets between the territories of the
Parties other than Tokyo-New York, Tokyo-Chicago, or Tokyo-Honolulu. [FN19]
FN19. For purposes of city-pair restrictions contained in this Part, Newark, New Jersey, shall be treated as a separate point from New York, New York.
End of Footnote(s).
2. Effective January 1, 2004:
The aggregate number of non-restricted weekly round-trip frequencies, provided for in subsection I B 2 of this 1998 MOU, shall increase by an additional seven (7).
3. Effective January 1, 2005:
An additional seven (7) weekly round-trip frequencies, in the aggregate, may be operated by non-incumbent combination airlines of each Party on routes including any city-pair markets between the territories of the Parties other than Tokyo-New York, Tokyo-Chicago, or Tokyo-Honolulu.
4. Effective as of the first date All Nippon Airways operates a number of trans-Pacific weekly round-trip frequencies that exceeds by seventy (70) or more the number of such frequencies operated by that airline as of January 1, 1998, [FN20] the aggregate number of non-restricted weekly round-trip frequencies, provided for in subsection I B 2 of this 1998 MOU shall increase
by an additional seven (7).
FN20. As of January 1, 1998, All Nippon Airways operated eighteen (18) trans-Pacific weekly round-trip frequencies.
End of Footnote(s).
B. CONVERSION OF THE FORTY-TWO (42) RESTRICTED FREQUENCIES FOR NON-INCUMBENT COMBINATION AIRLINES
1. Effective January 1, 2002:
(a) Fourteen (14) of the forty-two (42) restricted frequencies, provided for in subsection I B 3 of this 1998 MOU, shall be converted to non-restricted frequencies, thereby increasing the aggregate number of non-restricted frequencies, provided for in subsection I B 2 of this 1998 MOU, by an additional fourteen (14);
(b) For seven (7) of the twenty-eight (28) remaining restricted frequencies provided for in paragraph I B 3(a) of this 1998 MOU, the restrictions shall be modified to permit operation of those frequencies by non-incumbent combination airlines of each Party on routes including any city-pair markets between the territories of the Parties other than Tokyo-New York,
Tokyo-Chicago, or Tokyo-Honolulu.
2. Effective January 1, 2004:
For seven (7) of the twenty-one (21) remaining restricted frequencies provided for in subsection I B 3 of this 1998 MOU, the restrictions shall be modified to permit operation of those frequencies by non-incumbent combination airlines of each Party on routes including any city-pair markets between the territories of the Parties other than Tokyo-New York, Tokyo-Chicago, or Tokyo-Honolulu.
3. Effective January 1, 2005:
Seven (7) of the fourteen (14) remaining restricted frequencies, provided for in subsection I B 3 of this 1998 MOU, shall be converted to non-restricted frequencies, thereby increasing the aggregate number of non-restricted frequencies, provided for in subsection I B 2 of this 1998 MOU, by an additional seven (7).
Part X. PROCEDURES CONCERNING THE APPLICATION OF ARTICLES 10,
11, AND 12 OF THE 1952 AGREEMENT WITH RESPECT TO CAPACITY,
FREQUENCY, AND TRAFFIC COMPOSITION
The following procedures concerning the application of Articles 10, 11, and 12
of the 1952 Agreement shall apply to all approvals and reviews of changes in capacity or frequency of services, including inaugurations of new services, for all services operated under this 1998 MOU or the prior agreements, and take precedence over the procedures prescribed in any of the prior agreements or agreed minutes implementing the 1952 Agreement.
A. GENERAL PROCEDURES
The procedures in this Section (General Procedures) shall apply to all operations of all airlines, with the sole exception of those operations expressly provided for in Section B of this Part (Procedures Applicable to Passenger Services on Fifth Freedom Operations to and from Europe/Africa):
1. Airlines of each Party shall follow the procedures normally applied on a nondiscriminatory basis under the laws and regulations of the other Party relating to approvals or reviews of changes in capacity or frequency of services, including inaugurations of new services.
2. All changes in capacity or frequency of services, including inaugurations of new services, of an airline of either Party with respect to any routes or frequencies provided for in this 1998 MOU or the prior agreements, shall be permitted to take effect on the date duly requested by the airline.
3. The operations of designated airlines of either Party performed in
accordance with the provisions of this 1998 MOU and within the limits of the formulae in subsection I A 2, above, if applicable, shall be deemed to be in compliance with Articles 10, 11, and 12 of the 1952 Agreement.
4. If the aeronautical authorities of either Party have concerns related to the traffic composition, frequency, or capacity of operations of an airline of the other Party, they shall promptly notify the aeronautical authorities of the other Party of their concerns and the bases therefor and may request consultations under Article 14 of the 1952 Agreement to discuss any reservations expressed by the aeronautical authorities of the Party in the light of experience gained as a result of the operations of such services.
5. In consultations concerning fifth freedom operations of incumbent combination airlines, the aeronautical authorities shall first consider whether the operations at issue are not within the limits of the applicable formulae in subsection I A 2, above, where applicable. If the aeronautical authorities reach agreement that the operations are not within the limits of the applicable formula, then they shall next consider whether the services are consistent with the relevant provisions of the 1952 Agreement.
6. Subject to the requirements of subsection 7 of this Section, consultations shall be held promptly following a request therefor, at a time mutually agreed by aeronautical authorities of both Parties. At such consultations, the aeronautical authorities of both Parties shall seek an agreement as to whether
the services are inconsistent with Articles 10, 11, and 12 of the 1952 Agreement, and if so, whether, and to what extent, the services should be modified to comply with the requirements of Articles 10, 11, and 12. Both aeronautical authorities shall exert their utmost efforts to reach an agreement within such reasonable time as the case might require.
7. Consultations described in subsection X A 4, above, may be held only after a six (6) month period of actual operations, or such longer period as may be mutually agreed by the aeronautical authorities of both Parties. With respect to inaugurations of services on new route segments, the six (6) month period of actual operations shall begin after an initial three (3) month start-up period.
8. In the event the aeronautical authorities of both Parties are unable, in the course of consultations, to reach an agreement as to whether an airline's operations meet applicable capacity or frequency requirements, the operations in question shall be permitted to continue until an agreement is reached as a result of such consultations, or if the aeronautical authorities of both Parties do not reach an agreement as a result of such consultations, until resolution of the questions pursuant to Article 15, 16, or 18 of the 1952 Agreement.
9. Absent agreement of the Parties or resolution of the question pursuant to Articles 15, 16, or 18 of the 1952 Agreement, neither Party shall unilaterally limit a designated airline's operation of agreed routes and frequencies.
10. These procedures shall apply to proposed changes, including inaugurations, of services, notwithstanding the pendency of consultations or the other procedures under this Section on any prior proposals, including proposals to commence or increase services on the same route.
11. The continued operation of services pursuant to the procedures for reviewing operations as set forth in this Section may not in any case be considered by one Party to be a breach of agreement, absent agreement of the Parties.
B. PROCEDURES APPLICABLE TO PASSENGER SERVICES ON FIFTH FREEDOM OPERATIONS TO AND FROM EUROPE/AFRICA
The procedures in this Section (Procedures Applicable to Passenger Services on Fifth Freedom Operations to and from Europe/Africa) shall apply to all fifth freedom operations to and from Europe/Africa of all combination airlines with respect to passenger services.
1. Airlines of each Party shall follow the procedures normally applied on a nondiscriminatory basis under the laws and regulations of the other Party relating to the filings by airlines of either Party reflecting changes in the capacity or frequency of services including inaugurations of new services, on agreed routes.
2. All changes in capacity or frequency of services, including inaugurations, of fifth freedom operations to and from Europe/Africa may be reviewed by the aeronautical authorities of the other Party to consider whether the planned operations are in compliance with Articles 10, 11, or 12 of the 1952 Agreement. The operations in question may not commence if the reviewing aeronautical authorities object to them, or have withheld any necessary approvals.
3. If the aeronautical authorities of either Party have concerns with respect to such operations, they shall promptly notify the aeronautical authorities of the other Party of their concerns and the bases therefor, and may request consultations under Article 14 of the 1952 Agreement to discuss any reservations expressed by the aeronautical authorities of the Party in the light of projections or data reflecting the probable results of such operations.
4. In consultations concerning passenger services on fifth freedom operations of incumbent combination airlines to points in Europe/Africa, the aeronautical authorities shall first consider whether the operations at issue are within the limits of the applicable formula in subsection I A 2, above. If the aeronautical authorities reach agreement that the operations are within the limits of the applicable formula, then they shall next consider whether the services are consistent with the relevant provisions of the 1952 Agreement.
5. Consultations shall be held promptly following a request therefor, at a time
mutually agreed by the aeronautical authorities of both Parties. At such consultations the aeronautical authorities of both Parties shall seek an agreement as to whether the services should be permitted to be inaugurated or operated. Both aeronautical authorities shall exert their utmost efforts to reach an agreement within such reasonable time as the case might require.
6. In the event the aeronautical authorities of the Parties are unable, in the course of consultations, to reach an agreement as to whether an airline's operations meet applicable requirements, the operations in question shall not be permitted until agreement is reached as a result of such consultations, or, if the aeronautical authorities of both Parties do not reach an agreement as a result of such consultations, until resolution of the questions pursuant to Articles 15, 16, or 18 of the 1952 Agreement.
C. TERMS APPLICABLE TO ALL OPERATIONS
1. Neither of the Parties shall be permitted unilaterally to require incumbent combination airlines of the other Party to file traffic reports or data relative to fifth freedom operations to and from Asia/Americas for the purpose of determining its compliance with provisions relating to traffic composition, frequency, or capacity in this 1998 MOU or the prior agreements.
2. Nothing in this 1998 MOU shall be construed to limit the rights of either
Party to enforce its domestic competition laws and other laws and regulations on such issues as safety, security and environment against any airline operating services under this 1998 MOU or any of the prior agreements following an appropriate proceeding, so long as such laws and regulations do not discriminate on the basis of nationality or any other improper or inappropriate basis.
Part XI. RELATIONSHIP TO OTHER PROVISIONS AND AGREEMENTS
Nothing in this 1998 MOU shall be construed to impair any existing rights of a Party, under the prior agreements, to reallocate frequencies, select new points or change points for service, or substitute airlines.
Takao Fujii
Minister Of Transport Of Japan
Washington, March 14, 1998
Rodney E. Slater
Secretary Of Transportation Of The United States Of America
APPENDIX
WEEKLY FREQUENCIES BASED ON SCHEDULES FOR THE 1997/1998 IATA WINTER SEASON
CITY-PAIRS ANA CO/CM/AM JAL NW UA
TKO-NYC 7 8 7 11
TYO-CHI 7 7 6
TYO-SFO 7 7 14
TYO-LAX 7 13 7 14
TYO-HNL 7 30 14 10
TYO-GUM/SPN 17 18 14
OSA-LAX 7 7 7
OSA-HNL 14 14 7
OSA-GUM/SPN 7 14 14 7
NGO-HNL 7 7 7
FUK-HNL 7 1
State Dept. No. 98-78, 1998 WL 320120 (Treaty)
END OF DOCUMENT
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