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Exchange of Letters between the Government of Canada and the Government of the United States of America constituting an Agreement concerning an Experimental Transborder Air Services Programme to and from San Jose [1986] CATSer 11 (13 March 1986)

E100125 - CTS 1986 No. 33

EXCHANGE OF LETTERS BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA CONSTITUTING AN AGREEMENT CONCERNING AN EXPERIMENTAL TRANSBORDER AIR SERVICES PROGRAMME TO AND FROM SAN JOSE

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The Secretary of Transportation of the United States of America to the Ambassador of Canada

WASHINGTON, March 13, 1986

His Excellency Allan E. Gotlieb
Ambassador of Canada

Dear Mr. Ambassador:

I have the honor to refer to the Air Transport Agreement between the Government of the United States of America and the Government of Canada of January 17, 1966, as amended (the 1966 agreement), and to the Exchange of Notes (Notes) of August 21, 1984 on the subject of an Experimental Transborder Air Services Programme.

The Notes contain the following paragraph with respect to a similar programme incorporating a U.S. airport:

It is understood that the Government of the United States of America intends to initiate an experimental programme for Transborder services to and from one U.S. airport to a point or points in Canada. The Contracting Parties agree to act expeditiously to work out the details of such a programme in the same spirit of cooperation that marks the initiation of this Programme to and from Mirabel Airport.

The United States Department of Transportation, on February 11, 1985, recommended that San Jose International Airport at San Jose, California, serve as the U.S. airport in its programme. This recommendation was made after a careful review of applications of ten U.S. airports (along with airlines), and after informal consultations with your Government with respect to the candidate airports.

The United States therefore proposes a Transborder Air Services Programme (the Programme) to be operated by carriers designated by the Government of the United States of America and by the Government of Canada with reference to this Programme.

An airline or airlines designated by the Government of the United States of America or the Government of Canada (the Contracting Parties) under this Programme shall be licensed automatically by the aeronautical authorities of the other Contracting Party. The provisions of Articles VI (b) and VII of the 1966 Agreement shall apply to such licensing.

An airline or airlines designated by either of the Contracting Parties under this Program shall have the right to operate air services for the carriage of passengers, or passengers, cargo, and mail in combination and to make scheduled landings at the points permitted on the following route: San Jose, California to and from any specified point or points in Canada.⁽¹⁾ Any number of designated airlines may serve a particular city-pair.

Airlines of both Contracting Parties shall have fair and equal opportunity to operate services under this Programme. The Contracting Parties agree to exercise their best efforts to assist airlines to obtain the necessary access to airports and airport terminal facilities. This Programme shall not impose any obligations on the Contracting Parties to upgrade or expand existing airport facilities or services, including the provision of customs and immigration services.

Flexible pricing provisions shall apply to the carriage of passengers under this Programme. Any fare proposed by an airline designated by either Contracting Party shall be filed with the aeronautical authorities of both Contracting Parties at least 15 days before the proposed date of introduction, unless permitted to be filed on shorter notice. Any such fare shall come into effect on the proposed date of introduction unless the aeronautical authorities of both countries, within 10 days of filing, have notified one another of their dissatisfaction with the proposed fare. Should the aeronautical authorities of both Contracting Parties disapprove the fare they shall endeavor to reach agreement on the appropriate fare as soon as practicable and the previous fare in effect shall continue in effect until such agreement is reached. Should the Programme be terminated by either Contracting Party, tariffs reflecting such fares shall remain in effect through the period of their validity not to exceed one year from the date of termination of this Programme.

Notwithstanding the otherwise applicable provisions of Article XIII (c) of the Air Transport Agreement of 1966, a designated airline of either Contracting Party not operating under the Programme that wishes to match fares of a designated airline operating under the Programme may file on fifteen days notice, and such applications shall be given sympathetic consideration. Any such fare so filed shall come into effect on the proposed date of introduction unless the aeronautical authorities of one country have notified those of the other of their dissatisfaction with the proposed fare within 10 days of its filing.

Should this Program be terminated or changed so as to affect services initiated under it, the Governments of Canada and the United States of America shall endeavor to provide for such services in the Schedules of the 1966 Agreement. In any case, services initiated under this Program shall be allowed to continue for at least one year from the date of such termination or change.

This Program shall be in effect for three years from the date of the entry into force of this agreement unless terminated by either Contracting Party on six months' written notice to the other Contracting Party. The Contracting Parties shall review this Program at the end of thirty months to determine whether it should be continued, changed or terminated. Either Contracting Party may at any time request consultations on questions concerning the interpretation, application or amendment of this agreement. Such consultation should commence as soon as practicable but in any event not later than sixty days from the date of receipt of the request for consultation, unless otherwise agreed by the Contracting Parties.

If, during the review at the end of thirty months, the total benefits of all experimental transborder air services programs established by our two countries are found to have accrued disproportionately to one of the countries, any appropriate adjustments shall be made.

In providing services under this Program the operating airline or airlines shall be subject to the obligations and entitled to the privileges embodied in Articles III (d), VIII, IX, X, and XI of the 1966 Agreement.

If the foregoing is acceptable to the Government of Canada, I propose that this letter, together with your reply to that effect, shall constitute an agreement between our two governments which shall enter into force on the date of your reply.

Sincerely,

Elizabeth Hanford Dole

Secretary of Transportation

(1) Los Angeles (International) and Honolulu (International) shall not be served behind San Jose except with a change of aircraft and flight number.

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The Ambassador of Canada to the Secretary of Transportation of the United States of America

WASHINGTON, March 13, 1986

The Honourable Elizabeth H. Dole,
Secretary of Transportation,
Washington

Dear Madam Secretary:

I have the honour to acknowledge receipt of your letter of March 13, 1986 concerning an Experimental Transborder Air Services Program to and from San José, California, to be operated by carriers designated by our two governments.

I am pleased to inform you that the proposal outlined in your letter is acceptable to the Government of Canada and to confirm that your letter and this reply, which is authentic in English and French, shall constitute an Agreement between our two governments which shall enter into force on the date of this letter.

Yours sincerely,

Allan Gotlieb

Ambassador