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OST-99-6515

American Trans Air, Inc. Against BWIA and The Government of Trinidad & Tobago

The Trinidad and Tobago Journey Permit No. 174/99 contains conditions which violate both the express terms and spirit of the Trinidad and Tobago/U.S. Agreement. That Agreement permits ATA to comply with U.S. charter laws, regulations and rules, which, of course, do not limit the capacity of the aircraft which ATA is making available for Port-of-Spain originating passengers or the frequency of flights. That Agreement also expressly prohibits the type of capacity and frequency restrictions contained in the Journey Permit. As a result of this violation, the tour operator, expecting to transport several thousand passengers from Port of Spain on ATA, was forced to cancel its contract with ATA. The result, of course, was that those passengers, if still desirous of travel, were forced to travel on BWIA, the Trinidad and Tobago flag carrier. Such action by the Trinidad and Tobago Civil Aviation Division also constitutes "a justifiable or unreasonable discriminatory, predatory or anti-competitive practice" against ATA and/or "imposes an unjustifiable or unreasonable restriction on access" of ATA to a foreign market (i.e., JFK-POS-JFK).

Counsel:  ATA, Brian Hunt, 317.240.7006

American Trans Air Against BWIA and The Government of Trinidad & Tobago

ATA states that it had operated almost 60 flights for Unlimited Travel, from June 15, 1999, through September 28, 1999, but that on September 20, 1999, the Civil Aviation Division of the Republic of Trinidad and Tobago issued Journey Permit No. 174/99 to ATA for flights between New York and Port of Spain for the period October 5 to December 7, 1999. ATA states that this new Journey Permit contained several conditions, including passenger uplift restrictions (Port of Spain-New York passenger lift was restricted to 15% of aircraft capacity), and frequency limitations. ATA states that these restrictions made the charters uneconomical and that Unlimited Travel was forced to cancel its October and November charter flights. ATA further states that although Unlimited Travel appealed for reconsideration to the Trinidad and Tobago Civil Aviation Division, arguing that the cancelled flights would result in stranded passengers, the Civil Aviation Division refused to lift the restrictions imposed on ATA's permit.

By:  Bradley Mims

American Trans Air, Inc. Against the Government of Trinidad and Tobago and BWIA International Airways Limited

ATA's complaint alleges that the Civil Aviation Division of the Republic of Trinidad and Tobago imposed certain restrictions on its charter operations between the United States and the Port of Spain, forcing ATA's tour operator, Unlimited Travel and Tours, to cancel its charter program with ATA. ATA's complaint requests that the Department exercise its authority under 49 U.S.C. §41304 to summarily suspend, without a hearing, BWIA's U.S. authority unless the Government of Trinidad and Tobago issues an unconditional permit to ATA in this matter. The Airports Authority takes no position on the merits of ATA's complaint except to state that if ATA's allegations are borne out, DOT should act to remedy the situation. The remedy, however, must be something other than the remedy sought by ATA. Summary suspension of BWIA's U.S. authority is an extraordinary remedy which should not be exercised by the Department without consideration of its impact upon airports and passengers served by BWIA. With much encouragement from the Airports Authority because of the travel benefits the service provides, BWIA inaugurated new service at Dulles Airport on November 4, 1999, using B737 aircraft. It is operating the only non-stop service from Dulles Airport to Barbados and Antigua, and the only direct service to Trinidad and Tobago. It is offering the only scheduled service to Antigua, Trinidad, and Tobago from the Washington area. Statistically, despite the lack of convenient air service, during 1998 over 39,000 people traveled between the Washington area and the four Caribbean islands BWIA is serving. With the non-stop and direct service, this traffic is expected to increase significantly. The Airports Authority anticipates this increase to be in the range of 15-20%. BWIA's service provides not only leisure travel opportunities, but also links large numbers of persons from the Caribbean living in the Washington area, particularly those from Trinidad, with their homelands. For this reason, a suspension of BWIA's rights in retaliation for actions taken by the Civil Aviation Division of the Republic of Trinidad and Tobago against the ATA is not in the interest of the traveling public.

By:  Metropolitan Washington Airports Authority, Edward S. Faggen

American Trans Air, Inc. against BWIA and The Government of Trinidad & Tobago

Given this background, it is important to give diplomatic contacts time to work. BWIA understands that the U.S. has contacted officials of the Trinidad and Tobago government concerning the charter "journey permit" issued to ATA. BWIA has met with officials of its government on this matter and has been advised that the government shortly will respond to the complaint through diplomatic channels and will request consultations for the purpose of discussing the issues so as to reach an amicable resolution. Until it is clear that such diplomatic efforts are unavailing (and given the history of cordial U.S.-Trinidad and Tobago relations, such an outcome is unlikely), ATA cannot make the showing of necessity required by international law principles for the exercise of unilateral countermeasures.

Counsel:  Verner Liipfert, Williams Evans, 202.371.6031

American Trans Air, Inc. against BWIA and The Government of Trinidad & Tobago

Counsel:  ATA, Brian Hunt, 317.240.7006

American Trans Air, Inc. against BWIA Airways and The Government of Trinidad & Tobago

Counsel:  Verner Liipfert, John Mietus, 202.371.6031

American Trans Air Against BWIA and The Government of Trinidad & Tobago

After careful consideration of all of the pleadings and issues in this case, we have decided to approve ATA's complaint. We have also decided to propose certain sanctions against BOWIE in this matter. Specifically, we propose to require BWIA to terminate its nonstop services between New York and Port of Spain effective January 20, 2000.

By:  Bradley Mims

American Trans Air, Inc. against The Government of Trinidad & Tobago and BWIA

BWIA understands that on December 23, 1999 the Republic of Trinidad and Tobago communicated to the United States government that it would "lift immediately" the journey permit restrictions at issue in this case. This action effectively removes the situation of which ATA had complained, and no sanctions against Trinidad and Tobago or BWIA therefore would be warranted. In light of this resolution, BWIA understands that there is no need for it to file its U. S. schedules as provided in ordering paragraphs 7 and 8. BWIA is objecting to the sanctions proposed in Order 99-12-22 simply to preserve its rights in this matter until ATA withdraws its complaint or the Department vacates Order 99-12-22.

Counsel:  Verner Liipfert, John Mietus, 202.371.6031

American Trans Air, Inc. against The Governement of Trinidad and Tobago and BWIA International Airways Limited

Counsel: ATA, Brian Hunt, 317.240.7006

American Trans Air, Inc. Against the Government of Trinidad and Tobago and BWIA International Airways Limited

By:  Bradley Mims

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