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OST-2007-0066 - Hainan Airlines - Foreign Air Carrier Permit and Exemption - China-US Scheduled Passenger
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OST-2007-0066 - Foreign Air Carrier Permit and Exemption - China-US November 9, 2007 Application for Exemption and Foreign Air Carrier Permit - Bookmarked Hainan Airlines seeks authority to conduct scheduled foreign air transportation of persons, property, and mail between Beijing, People's Republic of China, on the one hand, and Seattle, Washington, on the other hand on a daily basis. Hainan Airlines proposes to commence this service in June of 2008 and intends to initially utilize either Boeing 767-300 aircraft with 233 seats or Airbus 330-200 aircraft with 222 seats. Eventually, Hainan Airlines will use Boeing 787-8 aircraft for the route, with a seating capacity of between 184 and 215. Hainan Airlines recently accepted delivery of its first A330-300, and expects to receive six additional A330s. Counsel: Pillsbury Winthrop, Josh Romanow, 202-663-8000, romanow@pillsburywinthrop.com
November 30, 2007 Answer of the Port of Seattle - Bookmarked Granting Hainan Airlines application to operate nonstop service from SEA to Beijing will serve to connect cities in the Pacific Northwest and other Western states that are not currently served to China. Doing so will further the trade and cultural ties that have long been an integral part of our Western region. Counsel: Isabel Safora, 206-728-3216, safora.i@portseattle.org
December 7, 2007 Re: Washington State Congressional Delegation Support Letter On behalf of the Port of Seattle, we hereby submit a letter from the Washington State Congressional delegates In support of Hainan Airlines' application for Seattle-Beijing service in the above-captioned docket. Counsel: Port of Seattle, Isabel Safora, 206-728-3216, safora.i@portseattle.org
January 3, 2008 Motion for Confidential Treatment Under Rule 12 This information is being submitted in the form of a Confidential Exhibit to Hainan's Application for an Exemption and Foreign Air Carrier Permit, filed with the Department on November 9, 2007, and is attached hereto in a sealed envelope and marked in accordance with Rule 12. Counsel: Pillsbury Winthrop, Josh Romanow, 202-663-8000, romanow@pillsburywinthrop.com
January 7, 2008 Re: Updated Ownership Information Counsel: Pillsbury Winthrop, Josh Romanow, 202-663-9264, romanow@pillsburylaw.com
Order 2008-1-29 Issued and Served January 31, 2008 Order Granting Exemption and to Show Cause By this order we grant the application of Hainan Airlines Co., Limited for an exemption, under 49 U.S.C. §40109. We also tentatively find that it is in the public interest to grant the applicant the foreign air carrier permit. Our action granting the exemption authority described herein is effective immediately, for a period of one year from the issue date of this order, or until the attached permit becomes effective, whichever is earlier. With respect to the applicant’s request for a foreign air carrier permit in this proceeding, we direct all interested persons to show cause why our tentative decision on that application, set forth above, should not be made final. Any interested person objecting to the issuance of an order making final our tentative findings and conclusions with respect to the applicant’s request for a foreign air carrier permit shall, no later than twenty-one calendar days after the date of service of this order, file with the Department. By: Paul Gretch
Order 2008-4-29 Issued February 25, 2008 | Served April 18, 2008 By Order 2008-1-29, issued January 31, 2008, we directed all interested persons to show cause why we should not make final our tentative findings and conclusions stated therein and award a foreign air carrier permit in the form attached to the Order and subject to the conditions attached thereto. We gave interested persons 21 days to file objections to the Order. We said that if no objections were filed, all further procedural steps would be deemed waived, and the Department would enter an order (subject to Presidential review under 49 U.S.C. §41307) which would make final the findings and conclusions of the Order. No objections were received within the time period provided. By: Paul Gretch
OST-2008- Statement of Authorization - China-US Charters August 19, 2008 Hainan seeks authority to conduct charter foreign air transportation of persons, property, and mail between a points or points in the People’s Republic of China, on the one hand, and a point or points in the United States, on the other. Hainan Airlines proposes to commence this service as soon as the Department grants the necessary authorities. Hainan Airlines will operate these charter flights utilizing its own crew and the four Chinese registered Airbus A330 aircraft. Hainan Airlines’ first planned charter flight under the authority requested herein is a single roundtrip between Haikou, China, and Honolulu, Hawaii, (HAK-HNL-HAK), on October 19-21, 2008, to be operated utilizing an Airbus A330-200 aircraft with 213 seats. The charterer for this flight is Grand China Air. Ltd. Co., with an address of Haixiu Road, Haikou, Hainan Province, China. A copy of Hainan Airlines’ authorization from the China Civil Aviation Bureau for this charter flight is attached hereto as Exhibit B. Hainan Airlines respectfully requests prompt issuance of a statement of authorization pursuant to Part 212 of the Department’s economic regulations, so that it may proceed with necessary flight planning matters and operate this charter. By Order 2008-4-29 (Apr. 18, 2008), the Department issued a foreign air carrier permit to Hainan Airlines authorizing it to engage in scheduled foreign air transportation of persons, property, and mail between Beijing, People’s Republic of China, and Seattle, Washington. Hainan Airlines hereby incorporates by reference all information provided in its recent permit application filed in Docket OST-2007-0066. Counsel: Pillsbury Winthrop, Josh Romanow, 202-663-8000
Order 2008-9-17 Issued and Served September 12, 2008 Order Granting Exemption, Statement of Authorization, and To Show Cause By application filed August 19, 2008, Hainan Airlines Co., Limited, a foreign air carrier of the People's Republic of China, requests an exemption under 49 U.S.C. §40109, and an amended foreign air carrier permit under 49 U.S.C. §41301, to engage in charter foreign air transportation of persons, property and mail between a point or points in the PRC and a point or points in the United States, and to engage in other charters. Hainan Airlines also requests a statement of authorization under 14 CFR Part 212 to conduct one round-trip passenger charter between Haikou, PRC, and Honolulu, Hawaii, during the period October 19-21, 2008. Hainan Airlines currently holds a foreign air carrier permit from the Department authorizing it to engage in scheduled foreign air transportation of persons, property, and mail between Beijing, PRC, and Seattle, Washington. See Order 2008-4-29, issued February 25, 2008. By: Paul Gretch
September 23, 2008 Re: Petition for Reconsideration of DANA Liquidating Trust DANA Liquidating Trust, for the benefit of numerous aviation-related claimants, including US airlines and public aviation departments, small companies and individuals located throughout the country, obtained on August 19, 2008, an Amended Final Judgment from the United States Bankruptcy Court for the Eastern District of Virginia, ordering Hainan Airlines Co., Ltd. to pay DLT the sum of $14,068,826.33 as damages, pre-judgment interest, and attorney's fees resulting from Hainan's failure to pay for various services and goods, including aircraft parts and repairs for aircraft in its fleet. Hainan did not appeal the judgment, which is final, due and payable. Further, it has refused to comply with the Court's order. This behavior is not only disrespectful of United States law and of companies and individuals who have performed work for them, but also specifically places it in violation of Condition 11 to the charter exemption authority granted by Order 2008-9-17 (Sept 12, 2008), and in violation of Condition 11 to the proposed amended air carrier permit in the same Order. It also provides strong grounds for revocation of the Part 212 Statement of Authorization for the proposed October 19-21 Haikou-Honolulu round-trip charter flight announced in the Order. Hainan's failure to obey the Court's order relating to the conduct of its airline operations also raises serious issues regarding Hainan's basic compliance disposition, which calls into question its fundamental fitness to hold foreign air carrier authority, and is directly adverse to United States aviation interests, undercutting the Department's public interest findings. Apparently Hainan believes that it is not required to honor a final judgment of a United States Court which has directed it to pay for goods and services provided to it by American businesses and citizens for the conduct of its airline operations, even where it concedes the findings of the court. Additionally, the failure to pay the judgment in a prompt and orderly fashion now requires BLT to formally execute upon the judgment by using judicial process to seize all manner of Hainan's assets, including aviation assets that reside within the jurisdictions of the United States. Such execution will, in all likelihood, cause disruption of Hainan's service to American airports. Accordingly, DLT, on behalf of dozens of entities and individual claimants, herewith moves for leave to, and petitions for reconsideration of the Department's grant of charter exemption authority to Hainan and asks that it be denied or revoked; answers in opposition to the Department's proposed award of an amended foreign air carrier permit and asks that Hainan's application be denied; and moves for revocation of the Department's Part 212 statement of authorization to Hainan for the October 19-21 charter flight. Counsel: Wiley Rein, Jason Gold, 202-719-7402
October 2, 2008 Reply to DLT Answer and Motion to Strike DLT's Filing and Reply To the best of Hainan Airlines' knowledge, DLT does not hold certificate, permit, or exemption authority to provide commercial air transportation in the U.S.-China market. DLT has not provided any compelling, much less credible, explanation as to why it was unable to timely submit an answer to Hainan Airlines' application for exemption authority, filed in the above-captioned proceeding on August 19, 2008. Indeed, DLT had until: (i) August 28, 2008 to answer in opposition to Hainan Airlines' request for a statement of authorization; (ii) September 2, 2008 to oppose the airline's exemption request; and (iii) September 9, 2008 to answer the amended permit request. Yet, DLT did not file, nor should it be permitted to file at this late date. Only after the established procedural deadlines for answers to Hainan Airlines' application had passed, and only after the Department issued its order granting exemption authority and statement of authorization, and tentatively amending Hainan Airlines' foreign air carrier permit, did DLT decide to participate for the first time. DLT is therefore not an "interested party" for purposes of a petition for reconsideration, given the absence of any previous DLT comments in this proceeding or any related docket. DLT's attempt to weigh in now, at the eleventh hour, should be recognized for what it is - an attempt to bootstrap a commercial dispute, in another forum, to the Department's recent and proper decision to grant valuable air traffic rights provided for under the U.S.-China Air Services Agreement to Hainan Airlines. The Department should not tolerate DLT's disruption of orderly foreign air carrier licensing proceedings after the grant of effective authority, through the introduction of late, extraneous information-and should strike DLT's untimely petition for reconsideration. The Department reached a similar conclusion in Sunworld International Airlines, where the Department dismissed commercial objections in an exemption proceeding for valuable international traffic rights. Notice of Action in Docket OST-1997-3043. See also Minerve Canada, Order 1989-5-15, at 4 (affirming statement of authorization for foreign charter flights and dismissing commercial objections, noting "we do not believe that the arguments concerning the contractual dispute ... warrant a different result, since that dispute is a private commercial matter more properly resolved in other forums ... we take no position on the merits of that dispute"). Given that the Department's staff acted properly and in accordance with established Department practices, DLT's arguments should be flatly rejected. Counsel: Pillsbury Winthrop, Josh Romanow, 202-663-8000
October 7, 2008 Response of Dana Liquidating Trust to Hainan Airlines' Limited Reply Rather than provide any substantive information to the Department on the critical compliance disposition issue, Hainan attempts to trivialize the matter by comparing compliance with a United States Court order, a specific condition on its exemption and a serious matter respecting its general compliance disposition and fitness, to mere "commercial disputes' between "parties," and by arguing that DLT it not an "interested party." Hainan was brought before a United States Court for non-payment of debts it owes to DLT, a fiduciary appointed by the U.S. Bankruptcy Court to represent 135 persons and companies. After years of litigation, in which Hainan was represented by a major American law firm, presented testimony, and was accorded every due process protection, the Court ordered Hainan to pay those debts which relate to services and parts for its fleet of aircraft. There is, therefore, no ongoing "commercial dispute" of the type referenced in the DOT decisions Hainan cites, and DLT is not an ordinary commercial "party," but rather a entity established by the Court to carry out Court-directed tasks. Hainan's attempt to suggest otherwise is a smoke screen. Counsel: Wiley Rein, Edward Faberman, 202-719-7402 |
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