Seats sold one by one: scheduled service or non-scheduled charter?
Skyline Regional, a company established in State B (a contracting state to the Chicago Convention), holds an AOC issued by State B and operates a 19-seat turboprop. Since March it has flown between one city in State A and one city in State C three times each weekday, returning the same day, with flight numbers published in the OAG and the timetable filed with both authorities. Seats are sold individually on Skyline's website and through two travel agents, and checked baggage is accepted. State C's civil aviation authority has now written that this is a scheduled international air service, that Skyline has not been designated under the air services agreement between State B and State C, and that the next flight will be refused permission. Skyline's commercial director replies that each seat is sold under a separate charter contract, that the service is therefore non-scheduled, and that Article 5 of the Convention gives the operator a right of transit and operation. Skyline also wants to add a Saturday leg between two cities inside State C, carrying local passengers only, contracted by a hotel group in State C.
1. State C says the operation is a scheduled international air service. Skyline says it is a non-scheduled charter protected by Article 5. How should this be decided, and which Article governs?
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The label the parties use does not decide the question; the character of the service does.
- Article 6 of the Chicago Convention reserves scheduled international air services to the prior special permission or other authorisation of the state concerned and confers no general right to operate.
- Article 5 gives non-scheduled flights a right to fly into or transit other contracting states' territory and to make stops for non-traffic purposes, but its second paragraph expressly allows each state to impose such regulations, conditions or limitations as it considers desirable on the traffic taken on or set down. Even a genuine non-scheduled operation is therefore not a right to carry revenue traffic free of regulation.
The dividing line is the ICAO Council definition of a scheduled international air service. A series of flights is scheduled if it (a) passes through the airspace over the territory of more than one state, (b) is open to members of the public for the transport of passengers, cargo or mail, and (c) is operated so as to serve traffic between the same two or more points, either according to a published timetable or so regularly and frequently that it constitutes a systematic series of flights.
Every element here points to scheduled: flight numbers are published, a timetable is filed, seats are sold to the public, and there are three return trips every weekday. Selling each seat through a separate charter contract with a broker is a commercial device; it does not convert a public, systematic, published service into a non-scheduled flight. State C is entitled to require designation, and Skyline cannot rely on Article 5.
2. Skyline adds a Saturday sector between two points inside State C, carrying only local passengers. Can State C refuse, and on what basis?
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Yes. This is cabotage, and Article 7 of the Convention gives each contracting state the right to reserve the carriage of traffic for remuneration between two points within its own territory to itself and to prohibit other states' aircraft from taking on or setting down such traffic. Two points matter:
- Article 7 is a reservation of rights, not a grant. Nothing in the Convention, and nothing in a bilateral air services agreement between State B and State C unless it expressly says so, gives a State B operator the right to carry domestic State C traffic. Traffic rights are limited to those written in the bilateral; cabotage is almost never granted and is excluded from the multilateral transit agreements.
- The prohibition applies irrespective of the aircraft's registry, the operator's nationality or the existence of an AOC. If the sector were flown, State C could treat the flights as unauthorised and act against the operator, the aircraft and the crew, and the authorisation for the international sectors could be put at risk.
Skyline's lawful options are to apply for a specific authorisation from State C, or to restructure so that the internal sector only carries traffic whose journey begins or ends outside State C. Note that in the EU internal market cabotage is permitted between member states under the single market rules, but that is a regional exception to the Convention position and does not help a State B operator in State C.
3. State C also demands that the aircraft hold a State C certificate of airworthiness. Is that consistent with the Convention, and what may State C legitimately require of the documents and the crew?
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No. Article 33 requires certificates of airworthiness, and certificates of competency and licences, issued or rendered valid by the state of registry to be recognised as valid by other contracting states, provided the requirements under which they were issued are equal to or above the minimum standards established from time to time pursuant to the Convention (Annex 8 for airworthiness, Annex 1 for personnel). Article 30 provides the same for radio station licences. State C therefore cannot insist on re-certifying the aircraft through its own authority as a condition of entry; it may verify that the documents exist and are those of the state of registry, and it may enforce its own rules of the air and safety regulations under Article 11.
There are two genuine limits on recognition:
- Article 32(b) allows each state to refuse to recognise, for flight within its own territory, licences and certificates issued to its own nationals by another state. If Skyline's pilots were State C nationals, State C could refuse their State B licences and require validation.
- Article 29 requires the aircraft to carry the certificate of registration, certificate of airworthiness, appropriate crew licences, journey logbook, radio station licence, passenger list with places of embarkation and disembarkation, and a cargo manifest and detailed cargo declarations. State C may inspect these under Article 16 on landing and departure, without unreasonable delay.
So the certificate-of-airworthiness demand is inconsistent with Article 33, but a documents check and a licence check on its own nationals are not.