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BERMUDA STATUTORY
INSTRUMENT
BR 40/1999
MORTGAGING OF
AIRCRAFT ENGINES (PROCEDURES) REGULATIONS 1999
[made under
section 7 of the Mortgaging of Aircraft and Aircraft Engines Act 1999 [title 31
item 27] and brought into operation
on 1 July 1999]
Citation
1 These Regulations may be cited as the
Mortgaging of Aircraft Engines (Procedures) Regulations 1999.
Definitions
2 (1) In
these Regulations—
"Act" means the Mortgaging of Aircraft
and Aircraft Engines Act 1999;
"appropriate charge" means the charge
prescribed under section 7(1)(b) of the Act;
"Department" means the Department of
Civil Aviation established under section 2(1) of the Civil Airports Act 1949 [Title 23 item 1];
"the Register" means the Register of
Aircraft Engine Mortgages maintained under section 5(1)(b) of the Act.
(2) A reference in these Regulations to an
aircraft engine includes a share in an aircraft engine.
Registration of
aircraft engine mortgages
3 (1) An
application to enter a mortgage of an aircraft engine in the Register shall be
made to the Minister by or on behalf of the mortgagee
in the form set out in
Form 1 of the Schedule, and shall be accompanied by a copy of the mortgage,
which the applicant shall certify
to be a true copy, and the appropriate
charge.
(2) A notice of intention to make an application
to enter a contemplated mortgage of an aircraft engine in the Register ("a
priority
notice") may also be entered in the Register.
(3) An application to enter a priority notice in
the Register shall be made to the Minister by or on behalf of the prospective
mortgagee
in the form set out in Form II of the Schedule, and shall be
accompanied by the appropriate charge.
(4) Where two or more aircraft engines are the
subject of one mortgage of where the same aircraft engine is the subject of two
or more
mortgages, separate applications shall be made in respect of each
aircraft engine or of each mortgage, as the case may be.
(5) Where a mortgage is in a language other than
English, the application to enter that mortgage in the Register shall be
accompanied
by not only a copy of that mortgage but also by a translation
thereof, which the applicant shall certify as being, to the best of
his
knowledge and belief, a true translation.
(6) When an application to enter a mortgage or
priority notice in the Register is made, the Minister shall enter the mortgage
or the
priority notice, as the case may be, in the Register by placing the
application form therein and by noting on it the date and the
time of the
entry.
(7) Applications duly made shall be entered in
the Register in order of their receipt by the Minister.
(8) The Minister shall by notice published in
the Gazette specify the days on which and hours during which the office of the
Department
is open for registering mortgages and priority notices and any
application delivered when the office is closed for that purpose
shall be
treated as having been received immediately after the office is next opened.
(9) The Minister shall notify the applicant of
the date and time of the entry of the mortgage or the priority notice, as the
case may
be, in the Register and the register number of the entry and shall
send a copy of the notification to the mortgagor and the owner.
Amendment of
entries in the Register
4 (1) Any
change in the person appearing in the Register as mortgagee or as mortgagor or
in the name or address of such person or in the
description of the mortgaged
property shall be notified to the Minister by or on behalf of the mortgagee, in
the form set out in
Form III of the Schedule.
(2) On receipt of the said form, duly completed
and signed by or on behalf of the mortgagor and the mortgagee and on payment of
the
appropriate charge, the Minister shall enter the notification in the
Register and shall notify the mortgagor, the mortgagee and
the owner that he
has done so.
Discharge of
mortgages
5 On receipt of the form set out in Form
IV of the Schedule duly completed and signed by or on behalf of the mortgagee
and of a copy
of the document of discharge or receipt for the mortgage money,
or of any other document which shows, to the satisfaction of the
Minister, that
the mortgage has been discharged and on payment of the appropriate charge, the
Minister shall enter the said form
in the Register and mark the relevant
entries in the Register "Discharged" and shall notify the mortgagee,
mortgagor
and the owner that he has done so.
Rectification
of the Register
6 If the Minister is satisfied that it
is necessary or expedient to correct an error in the Register, he shall direct
that the Register
be amended and shall enter a notation of the correction and
the date of the correction on the Register.
Inspection of
the Register and copies of entries
7 (1) On
such days and during such hours as the Minister may specify in a notice
published in the Gazette, any person may, on application
to the Minister and on
payment to him of the appropriate charge inspect any entry in the Register
specified in the application.
(2) The Minister shall, on application of any
person and on payment of the appropriate charge, supply to the applicant a
copy, certified
as a true copy, of the entries in the Register specified in the
application.
(3) The Minister shall, on the application of
any person and on payment by him of the appropriate charge, notify the
applicant whether
or not there are any entries in the Register relating to the
aircraft engine specified in the application by reference to its make
and model
description and its manufactuter's serial number.
(4) A document purporting to be a copy of an
entry in the Register shall be admissible as evidence of that entry if it
purports to be
certified as a true copy by the Minister.
(5) Nothing done in pursuance of paragraph (2)
or (3) of this Regulation shall affect the priority of any mortgage.
Disposal of
aircraft engine by Bermuda company
8 The disposal by sale, lease
termination or other lawful means of an aircraft engine by a Bermuda company
shall not affect the rights
of any mortgagee under any registered mortgage and
entries shall continue to be made in the Register in relation to the mortgage
as if the aircraft engine had not been so disposed of.
Register as
notice of facts appearing in it
9 All persons shall at all times be
taken to have express notice of all facts appearing in the Register, but the
registration of a
mortgage shall not be evidence of its validity.
Priority of
mortgages
10 (1) Subject
to the following provisions of this Regulation, a mortgage of an aircraft
engine entered in the Register shall have priority
over any other mortgage or
charge on that aircraft engine, other than another mortgage entered in the
Register:
Provided that mortgages
made before the date of coming into operation of these Regulations, whether
entered in the Register or not,
shall for a transitional period of 3 months
from the date of coming into operation of these Regulations ("the
transitional
period") have the same priority as they would have had if
these Regulations had not been made.
(2) Subject to the following provisions of this
Regulation, where two or more mortgages of an aircraft engine are entered in
the Register,
those mortgages shall as between themselves have priority
according to the times at which they are respectively entered in the Register:
Provided that:
(i) mortgages of an aircraft engine made
before the date of coming into operation of these Regulations which are entered
in the Register
before the end of the transitional period shall have priority
over any mortgages of that aircraft engine made on or after the date
of coming
into operation of these Regulations and shall as between themselves have the
same priority as
they would have had if these Regulations had not been made;
(ii) without prejudice to proviso (i), where
a priority notice has been entered in the Register and the contemplated
mortgage referred
to therein is made and entered in the Register within 14 days
thereafter, that mortgage shall be deemed to have priority from the
time when
the priority notice was registered.
(3) In reckoning the period of 14 days under
paragraph (2), there shall be excluded any day which is a public holiday.
(4) The priorities provided for by the preceding
provisions of this Regulation shall have effect notwithstanding any express,
implied
or constructive notice affecting the mortgage.
(5) Nothing in this Regulation shall be
construed as giving a registered mortgage any priority over any possessory lien
in respect of
work done on the aircraft engine (whether before or after the
creation or registration of the mortgage) on the express or implied
authority
of any person lawfully entitled to possession of the aircraft engine or over
any right to detain the aircraft engine
under any statutory provision.
Mortgage not
affected by bankruptcy
11 A registered mortgage of an aircraft
engine shall not be affected by any act of bankruptcy committed by the mortgagor
after the
date on which the mortgage is registered, notwithstanding that at the
commencement of his bankruptcy the mortgagor had the aircraft
engine in his
possession, order or disposition, or was reputed owner thereof, and the
mortgage shall be preferred to any right,
claim or interest therein of the
other creditors of the bankrupt or any trustee or assignee on their behalf.
Mortgagee to
have power of sale
12 Every mortgagee shall have power
absolutely to dispose of any aircraft engine in respect of which he is
registered and to give effectual
receipts for the purchase money; but where
there are more persons than one registered as mortgagees of the same aircraft
engine,
a subsequent mortgagee shall not, except under the order of the Supreme
Court, sell the aircraft engine without the concurrence
of every prior
mortgagee.
Transfer of
mortgages
13 A registered mortgage of an aircraft
engine may be transferred to any person, and the instrument effecting the
transfer shall be
in the form set out in Form V of the Schedule and on the
production of the said form the Minister shall record it by entering it
in the
Register and shall mark the said form with the date and the time of such entry.
Transmission of
interest in mortgage by death, bankruptcy etc
14 (1) Where
the interest of a mortgagee in an aircraft engine is transmitted on death or
bankruptcy, or by any lawful means, other than
by a transfer under these
Regulations, the transmission shall be authenticated by a declaration of the
person to whom the interest
is transmitted, containing a statement of the
manner in which and the person to whom the property has been transmitted, and
shall
be accompanied by documentary evidence in a form satisfactory to the
Minister.
(2) The Minister on the receipt of the declaration,
and the production of the documentary evidence, shall enter the name of the
person
entitled under the transmission in the Register as the mortgagee of the
aircraft engine.
Application of
statutory provisions relating to bills of sale and registration provisions of
the Companies Act 1981
15 (1) Any
statutory provisions insofar as they relate to bills of sale and other
documents given by way of security for the payment of
money shall not apply to
any mortgage of an aircraft engine to which these Regulations apply which is
made on or after the date
of coming into operation of these Regulations.
(2) Section 55(5)(b) of the Companies Act 1981 [title 17 item 5] shall have effect as if
after the word "ship" there were inserted the words "or aircraft
engine" and as if
after the words "Merchant Shipping Act 1894"
where they twice occur there were inserted the words "or the Mortgaging
of
Aircraft and Aircraft Engines Act 1999 as the case may be":
Provided that nothing
in this Regulation shall render invalid as against the liquidator or creditor
of the company, any mortgage
or charge created by a company before the date on
which these Regulations come into force which would not have been invalid
against
the liquidator or such a creditor if these Regulations had not been
made.
Indemnity
16 (1) Subject to paragraph (2), any person who
suffers loss by reason of any error or omission in the Register or of any
inaccuracy in
a copy of an entry in the Register supplied pursuant to
Regulation 7(2) or in a notification made pursuant to Regulation 7(3) shall
be
indemnified by the Minister.
(2) No indemnity shall be payable under this
Regulation—
(a) where the person who has suffered loss has
himself caused or substantially contributed to the loss by his fraud or has derived
title
from a person so committing fraud;
(b) on account of costs or expenses incurred in
taking or defending any legal proceedings without the consent of the Minister.
Commencement
17 These Regulations come into operation
on 1 July 1999.
SCHEDULE
FORM I
Regulation 3(1)
REGISTER OF AIRCRAFT ENGINE MORTGAGES
ENTRY OF AIRCRAFT ENGINE MORTGAGE
I hereby apply for
the mortgage, particulars of which are given below, to be entered in the
Register of Aircraft Engine Mortgages.
|
1. Date of
mortgage |
|
2. Description of the mortgaged aircraft
engine (including its make and model description and its manufacturer's
serial number)
and of any store of spare parts for that aircraft engine to
which the mortgage extends. (The description
of the store of spare parts must include an indication of their character and
approximate number and the place
or places where they are stored must be
given *1). |
|
3. The sum secured by the mortgage *2. |
|
4. Does the mortgage require the mortgagee
to make further advances? If so, of
what amount? |
|
5. Name and address and, where applicable,
company registration number of the mortgagor. |
|
6. Register number of priority notice, if
any. |
|
Signed............................................................................................... |
|
Name in block capitals........................................................... |
|
On behalf of *3....................................................................... |
|
(insert
name and, where applicable, |
|
of......................................................................................... |
|
(insert
address of mortgagee) |
|
*1 The description of the mortgaged
property may, if necessary, be continued on a separate sheet, which shall be
signed by the
applicant. |
|
*2 Where
the sum secured is of a fluctuating amount, this should be stated and the
upper and lower limits, if any, should be set
out. |
|
*3 Delete
where inapplicable. |
FORM II
Regulation 3(3)
REGISTER OF AIRCRAFT ENGINE MORTGAGES
ENTRY OF PRIORITY NOTICE
To be completed by
Applicant:
I hereby give
notice that I am contemplating entering into a mortgage, particulars of which
are given below, and that if I do enter
into the said mortgage I shall apply
for it to be entered in the Register of Aircraft Engine Mortgages. I hereby apply for this notice to be entered
in the said Register.
|
1. Description of the aircraft engine which
is the subject of the contemplated mortgage (including its make and model
description
and its manufacturer's serial number) and of any store of spare
parts for that aircraft engine to which it is contemplated that
the mortgage
will extend *1. |
|
2. The sum secured by the contemplated
mortgage *2. |
|
3. Is it contemplated that the mortgage will
require the mortgagee to make further advances? If so, of what amount? |
|
4. Name and address and, where applicable,
company registration number of the prospective mortgagor.. |
|
Signed............................................................................................... |
|
Name in block capitals........................................................... |
|
On behalf of *3....................................................................... |
|
(insert
name and, where applicable, |
|
of......................................................................................... |
|
(insert
address of mortgagee) |
|
*1 The description of the property which
is the subject of the contemplated mortgage may, if necessary, be continued
on a separate
sheet which shall be signed by the applicant. |
|
*2 Where
the sum to be secured is of a fluctuating amount, this should be stated and
the upper and lower limits, if any, should
be set out. |
|
*3 Delete
where inapplicable. |
FORM III
Regulation 4(1)
REGISTER OF AIRCRAFT
ENGINE MORTGAGES
CHANGE IN PARTICULARS
We hereby give
notice that the particulars shown on the Register of Aircraft Engine Mortgages
under Register number
should be amended as follows—
|
(a)... Signed................................................................ |
|
...... Name
in block capitals........................................ |
|
...... on
behalf of *1.................................................. |
|
|
|
(b)... Signed................................................................ |
|
...... Name
in block capitals........................................ |
|
...... on
behalf of *1.................................................. |
|
|
|
(c)... Signed................................................................ |
|
...... Name
in block capitals........................................ |
|
.............................. on
behalf of *1.............................. |
|
|
*1 Delete
where applicable |
|
|
*2 Applicable
only where the change in particulars is a change in the person appearing in
the Register as mortgagee. |
|
FORM IV
Regulation 5
REGISTER OF AIRCRAFT
ENGINE MORTGAGES
DISCHARGE OF REGISTERED MORTGAGE
I hereby confirm
that the mortgage entered in the Register of Aircraft Engine Mortgages under
register number
has been discharged.
|
(a)... Signed................................................................ |
|
...... Name
in block capitals........................................ |
|
...... on
behalf of *................................................... |
|
*1 Delete
where applicable |
|
FORM V
Regulation 13
REGISTER OF AIRCRAFT
ENGINE MORTGAGES
TRANSFER OF MORTGAGE
[To be endorsed on
the original mortgage.]
|
(a)________________________the
within-mentioned___________________in |
|
consideration of_______________this day paid
to(b)__________________by |
|
__________________hereby transfer to
(c)____________________the benefit |
|
of the within written security. In witness whereof (a)__________________ |
|
have hereunto subscribed
(d)________________name________________and |
|
affixed (d)_________________________seal. |
|
Signed............................................................................................... |
|
Name in block capitals........................................................... |
|
On behalf of........................................................................... |
|
this...... day of...................................................................... |
|
Executed
by the above named............................................... |
|
in the
presence of................................................................ |
|
(a) "I"
or "we." |
|
(c) "Him"
or "them." |
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