PHILIPSBURG: The Court of First Instance, on Monday, February 17th, 2025, ruled in favor of Z- Air and against country St. Maarten, namely the Minister of TEATT Grisha Heyliger Marten.
In the judgment, the case was laid out as follows. Country St. Maarten on August 2024 granted permits (“authorizations”) to the plaintiff to operate flights with five aircraft between Curacao and international destinations with Sint Maarten as a stopover. These authorizations are valid until December 31, 2024.
By orders dated September 2, 2024 (the contested orders II), country St. Maarten granted Z Air replacement authorizations (“authorizations”) valid until April 30, 2025.
Z-Air appealed to the contested decisions I and II by notice of appeal on September 11, 2024.
Oral proceedings took place at the hearing on January 20, 2025.
The court considered it based on the evidence provided. It determined that the dispute between parties focuses on the condition contained in the permits regarding (the receipt of) a letter signed by the beöokken aviation authorities, setting the distribution of supervision of the aircraft.
On August 22, 2011, the governments of the Netherlands, Aruba, Curacao, and Sint Maarten agreed on the liberalization of air traffic within the Kingdom of the Netherlands. These agreements are laid down in the Multilateral Protocol on the Liberalization of Air Transport.
Plaintiff is an airline company based in Curacao. It operates flights from Curacao to destinations in the, including Aruba, Bonaire and Colombia.
On August 2, 2023, the claimant submitted a request to the aviation authority of Sint Maarten, the Sint Maarten Civil Aviation Authority (hereinafter SMCAA) for a Commercial Air Transport Operations by a Foreign Air Operator Certificate (hereinafter FACOP). The request seeks permission to fly five aircraft between Curacao and international destinations with Sint Maarten as a stopover.
The five aircraft are registered in the United States of America. These are so-called N-registered aircraft.
St. Maarten Civil Aviation Authority (SMCAA’) questioned whether the plaintiff leased the aircraft under a wet lease agreement or a dry lease agreement; the plaintiff informed SMCAA that the lease of the aircraft was under a dry lease agreement. In the case of a dry lease, the lessee provides its crew and exercises its own control.
Aviation Administration (hereafter FAA) sent to SMCAA.
SMCAA asked for additional information and documents from Z Air since ‘there must also be an arrangement between the two (2) states involved whereby the safety oversight activities are coordinated. However, Z Air disagrees since they believe they are working under the law and guidelines of Curacao Civil Aviation, which accepts overseas registered aircraft; most importantly, Z Air is a Curacao-based company.
The route authorization is contingent on coordinating, communicating, and synchronizing safety oversight actuaries between the Federal Aviator Administration (FAA) and the Curacao Civil Aviation Authority (CCAA). It is contingent on receipt of the signed letter mentioned in the case of an airline or airlines from Aruba, Curacao St. Maarten, respectively: the airline has established the territory of Aruba, Curacao or St. Maarten, respectively, and has a valid operating license per the applicable laws and regulations of Aruba, Curacao, and St. Maarten, respectively; and the aviation authorities of Aruba, Curacao and St. Maarten, respectively, effectively monitor the airline’s compliance with regulations; and
in the case of Curacao or Sint Maarten, the airline is owned and effectively, directly or through majority ownership, by nationals of the Kingdom of the Netherlands who are residents of Curacao or Sint Maarten, respectively. The Party designating the air carrier(s) maintains and implements the standards contained in Article 8 (Safety) and Article 9 (Security); the airline can meet the conditions prescribed under laws and regulations commonly applied to the operation of international air transportation by the Party considering the application or applications.
The second paragraph of said article stipulates that by or pursuant to a national decree containing general measures, rules are set for the security of civil aviation.
According to Article 26, paragraph 1, of the Landsbesluit houdende algemene maatregelen, implementing Article 22, paragraph 1, of the Luchtvaartlandsverordening, rules may be imposed by or on behalf of the Minister on participants in air traffic for the protection of public safety in the use of, for the promotion of the safe, orderly and smooth conduct of air traffic, or the protection of persons or property on board the aircraft or on the surface of the earth.
Pursuant to Article 1 of the Regulations on the Operation of Foreign Airlines, the issuance, amendment, or renewal of an air operator’s license to foreign airlines (“authorization”) to operate commercial flights in St. Maarten under an international agreement shall be done in compliance with the regulations included in the annex to this regulation (Annex 1).
A foreign air carrier shall not operate an aircraft in commercial air transport operations in Sint Maarten in violation of Part 10 of the Annex, the applicable paragraphs of Part 7 and Part 8, the relevant standards contained in the Annexes to the Convention on International Civil Aviation (Chicago Convention) for the operation to be performed and/or such other requirements as the Aviation Authority may specify.
The defendant argues that the plaintiff has no interest in the requested annulment of the condition. The Plaintiff has the authorization to operate the flights through April 30, 2025, regardless of whether it meets the stated condition. For this, the Respondent points to the contents of the cover letter sent with the contested Decisions 1. In addition, the Respondent states that the CCAA has already sent the letter to the FAA and indicated that the FAA is willing to cooperate in signing it. According to the Respondent, this implies that the condition is expected to be met in a timely manner, thus depriving the Claimant of direct interest.
The court ruled that the defendant’s argument failed. According to the contested Decisions II, the authorizations granted are conditional upon receipt of the letter of February 29, 2024, letter, which the CCAA and the FAA must sign. At oral argument, the Respondent informed us about the cover letter stating that this does not constitute a (temporary) waiver of the set condition. It should be seen as a signal of ‘goodwill’ to the Respondent to allow the desired flight operations pending the FAA’s signature. Leaving aside the fact that this signal of’go0d will’ only extends, according to the contents of the accompanying letter, to the period up to and including December 31, 2024, this does not the fact that the plaintiff has an interest in an opinion on the lawfulness of the condition imposed in the permits granted.
This court stated that this is particularly true since it was stated on behalf of the respondent that the period of validity of the permits granted (until April 30, 2025) was chosen pending the FAA’s signature of the letter and that this period of validity will be only after the FAA proceeds to sign the letter. Finally, the plaintiff stated that flight operations have not yet begun flight operations pending a ruling on the legality of the conditions imposed. Should the permit condition be upheld and the FAA’s signature on the letter remains outstanding, the desired flight operations will not proceed.
Conclusion and implications
The conclusion is that the claimant’s argument that the condition imposed is unnecessary and imposes an unreasonable burden on it succeeds. The contested Decisions 11, in so far as they lay down a condition under Article VII in the authorization for the SAAB aircraft and under Article 5 in the authorization for the Learjet aircraft, must be set aside on the ground that they are contrary to the provisions of Annex 1, Part 10, to the Regulations on the operation of foreign air carriers, as well as contrary to the (substantive) principle of due care and the principle of proportionality.
There is reason to order the defendant to pay the legal costs incurred by the claimant. Applying the Administrative Law (Legal Costs) Decree, the Court will set the legal costs at NAf 1,400, one for the appeal and one for the appearance at the hearing. The Court will also order that the claimant be reimbursed the court registry fee of 150.
The court decided that the appeal was well founded and annulled the contested Decisions II in so far as they included a condition under Article VII in the authorization for SAAB aircraft and under Article 5 in the permission of Learjet aircraft;
determines that the defendant shall pay the plaintiff an amount of NAf1,400 as compensation for the legal costs incurred by the plaintiff as well as an amount of NAf 150 , being the court fee paid by the plaintiff.
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